PERSONAL INJURY CLAIMS PSYCHIATRIC INJURY

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1 PERSONAL INJURY CLAIMS PSYCHIATRIC INJURY DELIVERED BY D.O.J. NORTH SC AT A BAR ASSOCIATION OF QUEENSLAND CONTINUING PROFESSIONAL DEVELOPMENT SEMINAR ON WEDNESDAY, 9 JUNE 2004

2 2 The focus of this paper will be upon claims brought by persons asserting that tortious conduct of another has caused pure psychiatric harm but not any physical injury or harm 1. Introduction Even a cursory review of the cases concerning psychiatric harm will show that courts have been troubled by how to resolve claims for such harm. May I suggest that the reason for this is a concern that judges have for the wider ramifications or consequences for the community should recovery be permitted and, in particular, are concerned with the problem of indeterminate liability 2. Consequently much thought has been given to whether psychiatric injury or illness should be dealt with in principle indistinguishably from physical injury or illness. In the case of physical injury to person or property, arising out of commonplace relationships such as employer and employee, or bailor and bailee, or resulting from commonplace activities such as driving a motor vehicle, the requirements as to legal responsibility are well settled, often against a background of insurance practice. But defining the circumstances in which it is reasonable to require a person to have in contemplation, and take steps to guard against, financial harm to another person, or emotional disturbance that may result in clinical depression, requires the caution which courts have displayed. 3 One matter which the courts in recent times have reminded us is that there is a distinction between, on the one hand, an act that harms another and, on the other hand, an omission to prevent harm to another. The common law distinguishes between these circumstances. The former comes squarely within the principle established by Donoghue v Stevenson but the law does not recognise that there is a duty of positive action to take steps to prevent omissions in all circumstances 4. What actions foreseeably assault or harm another s psyche? What should one do or not do so as to ensure another s psyche is not consequently harmed? Granted a duty not to carelessly physically harm another, what are the limits upon foresight that your actions or inaction may harm another s psyche? 1 For an explanation of pure see Tame v New South Wales (2002) 211 CLR 317 per Gaudron J at [44] and footnote (56). 2 Consider, for example, Latham CJ in Chester v Waverley Corporation (1939) 62 CLR 1 at Tame v New South Wales (2002) 211 CLR 317 per Gleeson CJ at [15]. 4 See the observations by Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [28] referring to Brennan J in Sutherland Shire Council v Heyman. See also the observations by Fitzgerald J in Rasic v Cruz [2000] NSWCA 66 at [43] quoted by Spigelman CJ in Negligence: the Last Outpost of the Welfare State 76 ALR 432 at 437.

3 3 Perhaps not surprisingly, it is now suggested that the common law may have made a regrettable turn when the notion of the far fetched was established as a touchstone of the test for foreseeability in The Wagon Mound No 2 5, particularly when the issue of foreseeability has to be considered at the threshold question of duty as distinguished from the subsequent question of breach 6. Nevertheless, the oft quoted judgment of Mason J in Shirt s Case 7 remains the law in Australia as a statement of the test to be applied when considering whether one who owes a duty of care has breached it, although courts are at pains to emphasise that, at this inquiry, focus should be kept upon the reasonableness of the alleged tortfeasor s conduct 8. Indeed, what is often overlooked and not sufficiently appreciated 9 is that, in his judgment in Shirt s Case, Mason J prefaced his comments thus: I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connection with the existence of the duty of care involving a more generalised enquiry. 10 In this unsettled and contentious corner of the law of the tort of negligence, I propose to proceed conventionally, dealing first with some of the case law that sheds light upon the circumstances when the existence of a duty of care has been recognised and when it has not been recognised. In turn, I will then consider some of the cases that have discussed when a duty has been breached and what must demonstrated in order to establish a breach of the duty of care. As part of that discussion, I will also deal with some of the cases that have discussed the obligation of a person to take steps to prevent or minimise the risk of psychiatric illness 5 [1967] 1 AC Consider the discussion by Spigelman CJ in 76 ALJ at pp (supra) and the observations by McHugh J in Tame v New South Wales (supra) at [97]-[108]. 7 The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at See, for example, Romeo v Conservation Commission of The Northern Territory (1998) 192 CLR 431 per Toohey & Gummow JJ at [53]; Kirby J at [127]; Hayne J at [155]-[156]. 9 But not by the judges in Romeo cited above who discussed or referred to Shirt s Case in the context of their discussion of breach, not in the context of their discussion of duty. Nor was it overlooked by Gleeson J in Tame v New South Wales (supra) at [12]. In my view, the application of the Shirt principle by Gummow and Kirby JJ at [233] in Tame (supra) should be understood as part of their consideration of breach not duty. 10 Shirt s Case (supra) at 47.

4 4 to another and also, briefly, to shed some light upon issues relating to causation of damage in this context. The Duty of Care In the context of a claim for psychiatric injury, frequently issue will be joined upon the question whether the alleged wrongdoer owed the plaintiff a duty of care at law to take care to avoid such injury. Now in the case of an employer, we have known since at least 1970 that an employer could be successfully sued by an employee in this context 11. Recently, McHugh J put it this way 12 : The relationship of employee and employer, for example, requires the employer to take reasonable care to avoid injury to the employee. The duty is governed by the same rules and has the same content, irrespective of the kind of injury or damage that can reasonably be foreseen. In so far as White v Chief Constable of South Yorkshire Police decides the contrary, it does not represent the law of Australia. In White, the House of Lords appears to have overlooked that the employer s duty of care arises from an implied term of the contract as well as from the general law of negligence. The law of contract does not imply two terms of reasonable care; it does not imply a duty to protect against physical harm and a separate duty to take reasonable care for the safety of the employee and, it might be added, for the employee s property. Similarly under the general law, the duty of the employer is to take reasonable care for the safety of the employee in all the circumstances of the case. It is a duty to take reasonable care to eliminate all risks of injury that can be reasonably foreseen and avoided whether they are risks to the employee s psyche, person or property. The general law, like the law of contract, does not impose two duties on the employer one to avoid physical injury and one to avoid nervous shock to the employee. The ruling principle, said Lord Keith Avonholm, is that an employer is bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to this principle. 11 Mount Isa Mines v Pusey (1970) 125 CLR Tame v New South Wales (2002) 211 CLR 317 at [140].

5 5 In this context, I do not propose to say more about the existence of an employer s duty of care 13. I will deal in more detail concerning the content or scope of the duty when I address issues relating to breach and causation below. What about psychiatric harm suffered by parents or spouses when a child or spouse is killed or injured by the negligent conduct of another? We all read Chester v Waverley Corporation 14, when we were in law school. I can recall the moral outrage of the lecturer when he told us that the High Court held 15 the Council owed a duty of care to the child who died, but not to the mother who suffered a psychiatric illness when she witnessed her child s body being removed from the trench. That perceived injustice appeared to have been remedied by the High Court in Jaensch v Coffey 16 when the wife of a severely injured motorcyclist successfully sued the negligent motorist for her psychiatric illness brought on as a consequence of attending the hospital and seeing and being told of the consequences for her husband. One of the problems these days with Jaensch v Coffey is the statement of principle by which the High Court concluded the motorist owed the motorcyclist s wife a duty of care. Gibbs CJ expressed general agreement with the reasons of Deane J 17 and gave some short reasons of his own, in the course of which he referred seemingly approvingly, to the notion of proximity and to the speech of Lord Wilberforce in Anns v Merton London Borough Council 18. Gibbs CJ concluded his reason for holding that the duty of care existed as follows: In the present case there was a very close relationship, both legal and actual, between the respondent and her husband. She was notified of the accident, and went to the hospital, as soon as practicable on the evening when it occurred. She personally perceived the aftermath of the accident, although not at the scene but at the hospital. The fact that, in addition, she was informed by 13 Reference might be made to the last sentence of the passage in the joint judgment of Gummow and Kirby JJ in Tame (supra) at [237] and their reference to New South Wales v Seedsman [2000] NSWCA (1939) 62 CLR Evatt J dissenting. 16 (1984) 155 CLR (supra) at (supra) at 553.

6 6 those on duty at the hospital of her husband s condition cannot, in my opinion, defeat her claim. She was, in my opinion, a neighbour of the appellant within Lord Atkin s principle; it was foreseeable that a person in her position would suffer nervous shock, and there is no reason of policy why her claim should not succeed. 19 In his reasons, Deane J emphasised the combined tests of reasonable foreseeability and proximity as determining when a duty of care will exist: 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 McLoughin, 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 tests 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. 20 And further, his Honour said: 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 a result of contemporaneous observation at the scene of the accident is within the area in which the common aw accepts that the requirement of proximity is satisfied (cf. per Atkin L.J., Hambrook v. Stokes Bros. regardless of his particular relationship with the injured person. There was, as has been 19 (supra) at (supra) at 603.

7 7 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. 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 saw or she saw or heard in the aftermath of the accident at the scene 21 Brennan J did not accept the test of proximity and confined his reasons for concluding that a duty of care was owed to the test of reasonable foreseeability : Apart from the elements of nervous shock, which distinguish this category of negligence from other categories of negligence causing personal injury, no special element restricting the cause of action has been hitherto admitted in this Court. The limitations suggested by Lord Wilberforce in McLoughlin v. O Brian, in my respectful opinion, are approximately taken into account by the general principles of causation and reasonable foreseeability. There are no other elements which might preclude a duty of care arising where the kind of damage caused by a defendant s conduct is shock-induced psychiatric illness and that kind of damage is reasonably foreseeable. 22 His Honour then concluded that, upon consideration of the facts, a duty of care was established (supra) at (supra) at (supra) at

8 8 Dawson J did not find it necessary to choose between the views of Brennan J and Deane J upon the issue of proximity 24. He concluded that the harm was foreseeable and that the events which caused the harm were part of the aftermath of the accident resulting from the defendant s negligence 25. It is now relevant to consider the decision of the Court of Appeal in Scrase v Jarvis 26. In that case, a school bus driver was held to be negligent in contributing to the death of a child passenger, who had alighted from the bus and was struck by another motor vehicle when crossing the road. Both parents successfully sued for the psychiatric illness they suffered as a consequence of this tragedy. By majority 27, the Court of Appeal held that the driver owed a duty of care to both the child and to the parents. Pincus JA expressed general agreement with the reasons of Muir J 28. At the time Scrase v Jarvis was decided, the doctrine of proximity was losing favour but had not been rejected by the High Court 29, but, as we shall see, Muir J was careful to justify his conclusion that the bus driver owed the parents a duty of care on grounds other than just proximity : [67] The following circumstances combine to establish a sufficient degree of proximity or to demonstrate that, having regard to the reasoning and conclusions in broadly analogous negligence cases, the circumstances were such as to lead to the conclusion that a duty of care ought be imposed on the first appellant and, in consequence, on the second appellant. [68] The first appellant was not merely a driver of a public bus. He was the driver of a school bus carrying school children to and from school. That he exercised a measure of control over his passengers appears to have been accepted by him and his passengers. Kerryn spoke to 24 (supra) at (supra) at [2000] 2 QdR Pincus JA and Muir J; Williams J dissenting. 28 (supra) at [4] and [11]. 29 See Muir J s reasons at [61]-[66].

9 9 him in order to obtain his permission to leave the bus. The learned primary judge observed of the first appellant and Kerryn both she and the first defendant obviously assumed that she did have to get his permission, and implied he gave her the permission sought. The first appellant derived a degree of authority from the fact that he was the only adult on the bus and also from being in charge of the vehicle. There is the added consideration that the first appellant knew Kerryn and her two sisters from regularly driving them to and from school. He knew that they lived down Kingston Drive and was ideally placed to warn of the dangers posed by traffic, of which he was quite conscious. According to him, he customarily availed himself of the opportunity to issue such warnings. He also played a role in creating the occasion for Kerryn to leave the bus and seek her sister by refusing entry to Laura and by electing to wait for her return. [69] Some comparisons may be drawn between the respective positions of teachers and drivers of school buses. In both cases the child is beyond the control and protection of his or her parent. In Geyer v. Downs (1977) 138 C.L.R. 91 at 93 Stephen J (with whose reasons Mason and Jacobs JJ. agreed) referred with apparent approval to a passage from the judgment of Winneke C.J. in Richards v. Victoria [1969] V.R. 136 at in which his Honour had said: The reason underlying the imposition of the duty would appear to be the need of a child of immature age for protection against the conduct of others, or indeed of himself, which may cause him injury coupled with the fact that, during school hours the child is beyond the control and protection of his parent and is placed under the control of the schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury.

10 10 [70] The matters mentioned earlier of disparity in age and control over the vehicle provide further points of similarity. [71] I accept, however, that the nature of the control exercisable by a teacher on the one hand and the driver of a school bus on the other are different. The teacher has a more authoritarian role within a structure and environment which supports the teacher s exercise of authority and control over school children. I draw the comparison, principally, in order to assist in demonstrating that a finding of negligence in this case involves no novel application of principle. [72] I do not consider that there are any policy considerations which would prevent the conclusion that the circumstances of this case gave rise to a duty of care on the part of the first appellant which necessitated the giving of a warning. To the contrary, there are matters which suggest that a duty ought to be found to exist. The second appellant was carrying school children for profit on a school bus. The first appellant was the driver of the bus. Clearly both appellants assumed a degree of responsibility for the safety of their young charges. It is well recognised that a factor which tends to give rise to the existence of a duty of care is the assumption by a defendant of responsibility for the plaintiff particularly where the plaintiff might reasonably expect that due care will be exercised : Kondis v. State Transport Authority (1984) 154 C.L.R. 672 at In Scrase v Jarvis, foreseeability was not seriously doubted. Nor, for what it was worth, was proximity 31. But what clinched the issue for Muir J was the control the bus driver 30 (supra) at [67]-[72]. 31 (supra) at [61].

11 11 exercised in the interests of the care of the child. It was these factors in combination that led his Honour to his conclusion. Now we all know that, since then, the proximity doctrine has lost favour in this country 32. So what is the legal test or doctrine to be applied to determine when a tortfeasor who injures a child or a spouse may be held to owe a duty of care for consequential psychiatric harm suffered by the respective parent or spouse? Some light can be shed upon this in light of the High Court s decision in Annetts v Australian Stations Pty Ltd 33. The facts are worth noting in a little detail: The plaintiffs claimed damages for personal injuries including nervous shock, anxiety and depression allegedly suffered in connection with the death of their son James Annetts in December By their amended statement of claim, the plaintiffs alleged the following facts. The plaintiffs son was born on 13 March 1970 and lived with his parents in New South Wales until August 1986, when he was employed by the defendant as a jackeroo at one of its cattle stations near Halls Creek in Western Australia. Before their son left home, the plaintiffs had made inquiries of the defendant in relation to the arrangements for his safety, and had received assurances that he would be under constant supervision and well looked after. In October 1986, their son was sent to work alone as caretaker at Nicholson Station. On or about 4 December 1986, he died of dehydration, exhaustion and hypothermia after becoming stranded in the desert when his vehicle became bogged on a large sand dune. On 6 December 1986, Mr Annetts received a telephone call from the Griffith police in New South Wales advising him that his son was missing. Upon receiving this advice, Mr Annetts collapsed and Mrs Annetts continued the conversation with the police officer. On several occasions between January 1987 and April 1987, the plaintiffs travelled to Halls Creek for the purposes 32 See for example, Perre v Apand Pty Ltd (1999) 198 CLR 180; and Sullivan v Moody (2001) 207 CLR Reported with Tame v New South Wales [2002] 211 CLR 317.

12 12 of obtaining information as to the whereabouts of their son. On one such occasion, they were shown his belongings, including a hat covered in blood. On 26 April 1987, the plaintiffs were advised by telephone that a vehicle had been found bogged in the Great Sandy Desert, and later that day they were told that two sets of remains had been found in the area of the vehicle. Mr Annetts returned to Western Australia and identified one set of remains from a photograph as those of his son. 34 From the facts a number of matters stand out. The deceased was not an adult, only 16, and was employed by the defendant. The employer obviously owed a duty of care to the boy, its employee 35. The parents were told that their son was missing and later on of the circumstances of his disappearance. It was only subsequently that they heard of his death and how he died. They did not witness the event nor did they witness any consequences as did the plaintiffs in either Chester v Waverley Corporation or in Jaensch v Coffey. The High Court unanimously held that the defendant owed the parents a duty of care. All judges said that the combination of the foreseeability of psychiatric harm to the parents in combination with the relationship between the defendant and the boy and the antecedent relationship between the parents and the defendant, when they sought assurances that their son would be well cared for, contributed to that conclusion 36. It is a little difficult to say if the decision would have been otherwise if there had not been antecedent dealings between the parents and the defendant. Characteristically, Gleeson CJ limited himself to a discussion of the issues to be determined upon the facts of the case. Earlier in his judgment, when dealing with the legal concept of a duty of care, he said: 34 See 211 CLR at Consider also the duty of care owed by the defendant drivers to the injured husband in Jaensch v Coffey and the infant passenger in Scrase v Jarvis. 36 (supra) per Gleeson CJ at [37]; Gaudron J at [54]; McHugh J at [144]; Gummow and Kirby JJ at [237]; Hayne J at [302]-[340]; and Callinan J at [57]-[58].

13 13 It is important that reasonable foreseeability should be understood and applied with due regard to the consideration that, in the context of an issue as to the duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated. 37 Gaudron J also made it plain that something more than foreseeability is necessary before a defendant will be held to owe a duty of care 38. She went on to expressly endorse the dissenting judgment of Evatt J in Chester v Waverley Corporation 39 and of its extension in Jaensch v Coffey 40, but was at pains to say that it was not the case that the categories of persons who may recover damages for pure psychiatric injury are open ended 41 Significantly, she added: Save for those who fall within the direct perception rule, as extended by Jaensch v Coffey, a person will be able to recover for psychiatric injury only if there is some special feature of the relationship between that person and the person whose acts or omissions are in question such that it can be said that the latter should have the former in contemplation as a person closely and directly affected by his or her acts. 42 In his discussion of Annetts, McHugh J emphasised the fact that the defendant was an employer of the boy and the duty of care that was owed to him 43. It was the assurance that was decisive in establishing a duty of care owed to the parents 44 in negligence and (although not pleaded) a right in contract and arguably a fiduciary duty (supra) at [12]. 38 (supra) at [45]. 39 (supra) at [47]. 40 (supra) at [50]. 41 (supra) at [52]. 42 (supra) at [52]. 43 (supra) at [139]-[143] and particularly [140] quoted above. 44 (supra) at [144]. 45 (supra) at [146]. How this latter proposition can be reconciled with the law of fiduciaries, his Honour did not elaborate.

14 14 In their joint reasons, Gummow and Kirby JJ emphasised the antecedent relationship between the parents and the defendants 46. Significantly, they observed: A duty to avert psychiatric harm in these circumstances finds some, necessarily imperfect, analogy in cases of negligent misstatement causing pure economic loss, where a duty of care may arise with an assumption of responsibility by the defendant and reasonable reliance by the plaintiff. 47 And then observed: [239] In the present case, the applicants sought and obtained from the respondent assurances that James would be appropriately supervised. The respondent undertook specifically to act to minimise the risk of harm to James and, by inference, to minimise the risk of psychiatric injury to the applicants. In those circumstances, the recognition of a duty of care does not raise the prospect of an intolerably large or indeterminate class of potential plaintiffs. [240] The applicants had no way of protecting themselves against the risk of psychiatric harm that eventuated. In that regard, nothing turns upon which of the situations postulated by Ipp J in the Full Court as to the time that harm was sustained may be established at trial of the remaining issues in the action. The control over the risk of harm to James, and the risk of consequent psychiatric harm to the applicants, was held to a significant, perhaps exclusive, degree by the respondent. It controlled the conditions under which James worked. [241] Is there, to adapt what was put and rejected on the facts in Bryan v Maloney, any real question of inconsistency between the existence of a duty of care to the parents of James and the legitimate pursuit by the respondent of its business interests? The answer is in the negative. It 46 (supra) at [237] and also [239]. 47 (supra) at [238].

15 15 is likely that the respondent s duty of care to the applicants to exercise reasonable care to avoid causing them psychiatric injury with respect to James death in the course of his employment by it was, at most, co-extensive with the tortious and express or implied contractual duties that it had owed to James directly as his employer. 48 These comments bring to mind the judgments of the High Court in Perre v Apand Pty Ltd 49 and suggest that factors, such as the indeterminacy and control and whether the imposition of a duty upon a tortfeasor would create an obligation otherwise inconsistent with the legitimate interests of that person, will be significant factors for courts to consider in future cases. Hayne J held that the defendant owed a parent a duty of care. The risk of injury to them was plainly foreseeable 50 and his Honour went on to hold, in a way similar to the view of McHugh J, that, in the circumstances of the boy s youth and that the parents had committed the boy s safety to the care and control of the defendant, the defendant owed the parents the same duty the employer in Pusey s Case was held to owe 51. For Callinan J, the circumstances of the boy s youth, the obligation of care the defendant assumed in respect of the boy as an employer and the assurances the employer gave the parents that the boy would be cared for combined to create at least three bilateral relationships 52, with the result that he upheld the plaintiff s pleading that there was a relationship of proximity as disclosing a duty of care and a cause of action. When al the judgments are examined, it is clear that the employer owed the duty of care to the parents because of the combined effect of: 48 (supra) at [239]-[241]. 49 (1999) 198 CLR (supra) at [303], where his Honour expressed a preference for the dissenting judgment of Evatt J in Chester s Case and of the analysis of it by Deane J in Jaensch v Coffey. 51 (supra) at [304]. 52 And possibly a fourth, that in which the defendant was in loco parentis with the boy; see further (supra) at [437].

16 16 (1) the foreseeability of harm or injury in the circumstances; (2) the youth of the son/employee; (3) the antecedent dealings between the parents and the employer; (4) the duty the employer owed its employee. Absent the second and third factors, it is not clear that a majority would have held for the plaintiffs. In these circumstances, I suggest that absent the existence of a conventional duty of care between the tortfeasor and a psychiatrically harmed person (such as in the case of employer and employee), the circumstances in which a duty of care will be upheld remains uncertain. Indeed, one tantalising speculation arises from the judgments in Annetts. Would the High Court in Annetts have decided Jaensch v Coffey differently? I find this a little difficult to answer. There is no doubt that Gaudron J would have upheld Jaensch v Coffey 53, but it is a little difficult to draw a firm conclusion from the other judgments. There is perhaps a suggestion in the judgment of McHugh J 54 that he does not fully endorse the reasoning or conclusions of Deane J. There is an extensive treatment of the judgment in Jaensch v Coffey in the reasons of Hayne J 55, but once again it is a little difficult to draw any conclusion from this. The Duty of Care and Coherence of the Law In Sullivan v Moody 56, Mr Sullivan claimed he suffered shock, distress, psychiatric injury and consequential personal and financial loss in the following circumstances: Thomas Patrick Sullivan was the father of a girl born on 17 July On 7 May 1986 her mother took the girl to the Sexual Assault Referral Centre, a clinic conducted by, the Queen Elizabeth Hospital. The mother was interviewed by a medical practitioner, Margaret Catherine Moody, and a social worker. Dr Moody formed the opinion that the child had been subjected to sexual abuse by Sullivan. The Department of Community Welfare, the police and the mother were informed of the diagnosis of abuse. The child was referred to Karen Rachel James, a psychiatric social worker 53 See her remarks at page 11 above. 54 (supra) at [107]. 55 (supra) at [263]-[272]. 56 (2001) 207 CLR 562.

17 17 employed by the State of South Australia who counselled and assessed the child from 4 June She also formed the opinion that the child had been sexually abused, and communicated that opinion to the mother and the Department. The Department and the mother took steps to ensure that Sullivan did not have access to the child. The allegations against him were pursued in Family Court proceedings brought by the mother which were ultimately resolved in his favour. Sullivan commenced proceedings in the Supreme Court of Australia claiming that those who had conducted the examinations and assessments owed him a duty of care and that the State and its instrumentalities were vicariously liable for their negligence. 57 In a joint judgment, the High Court unanimously held that he was not owed a duty of care by the defendants 58. Their Honours began the discussion of the supposed duty of care by returning to the source, Donoghue v Stevenson, Heaven v Pender and Le Lievre v Gould and discussing them. 59 and, in particular, rejected proximity as the test or touchstone of the existence of a duty of care: As Professor Fleming said, no one has ever succeeded in capturing in any precise formula a comprehensive test for determining whether there exists, between two parties, a relationship sufficiently proximate to give rise to a duty of care of the kind necessary for actionable negligence. The formula is not proximity. Notwithstanding the centrality of that concept, for more than a century, in this area of discourse, and despite some later decisions in this Court which emphasised that centrality, it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established. It expresses the nature of what is in issue, and in that respect gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited. The present appeals provide an illustration of the problem. To ask whether there was a relationship 57 At 207 CLR p Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ. 59 See 207 CLR at [43]-[48].

18 18 of proximity between the medical practitioners who examined the children, and the fathers who were suspected of abusing the children, might be a convenient short-hand method of formulating the ultimate question in the case, but it provides no assistance in deciding how to answer the question. That is so, whether it is expressed as the ultimate test of a duty of care, or as one of a number of stages in an approach towards a conclusion on that issue. 60 The Court went on to refer to and, once again, reject the Caparo three stage approach 61 and then note that the core complaint by each appellant was that he was injured as a result of what he and others were told which, if a duty were found, would create an inconsistent intersection between the law of negligence and the law of defamation 62. Significantly for the Court, the work of the social worker and the medical examinations was conducted pursuant to the Community Welfare Act 1972 (SA), which expressly set up the interests of the child as the paramount consideration 63 so the Court said an issue of the coherence of the law arose: [55] More fundamentally, however, these cases present a question about coherence of the law. Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed. [56] How may a duty of the kind for which the appellants contend rationally be related to the functions, powers and responsibilities of the various persons and authorities who are alleged to owe that duty? (supra) at [48]. 61 (supra) at [49]. 62 (supra) at [54]. 63 Relevant statutory provisions are set out (supra) at [19]-[22]. 64 (supra) at [55]-[56].

19 19 For the High Court, issues of inconsistency of obligations and potential indeterminacy of liability arose on the claim made by the plaintiff which told against the existence of a duty of care 65. The High Court concluded that the duty of care did not exist: Ultimately, their case rests on foreseeability; and that is not sufficient. 66 The Court explained this inconsistency of obligation with the asserted duty of care instructively: The statutory scheme that formed the background to the activities of the present respondents was, relevantly a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion 65 (supra) at [60]-[61]. 66 (supra) at [64].

20 20 that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect. 67 Issues of inconsistent duties and coherence of the law arose subsequently in Tame v New South Wales, to which reference has earlier been made 68. Mrs Tame s claim arose in these circumstances: Clare Janet Tame sued the State of New South Wales in the District Court of New South Wales for damages for psychiatric injuries sustained as a result of being told of an erroneous entry concerning her blood alcohol level contained in a traffic accident report. In January 1991, the plaintiff was the driver of a car which was involved in a motor traffic accident. The accident was the fault of the driver of the other vehicle, who had a blood alcohol level of The plaintiff had a nil blood alcohol level. In February 1991, a New South Wales police officer completed a report of the accident, in which he erroneously stated that the plaintiff had a blood alcohol level of The error was noticed and was corrected in February or March The plaintiff sued the Nominal Defendant. In April 1991, an uncorrected copy of the accident report was provided to the insurer handing the claim against the Nominal Defendant. The insurer admitted liability in June In June 1992, the plaintiff s solicitor told the plaintiff that the police accident report stated that her blood alcohol reading was about three times over the limit. The plaintiff telephoned the police and was told that the information about her blood alcohol level on the accident report was a mistake. The insurer subsequently reconfirmed that liability was admitted, and the police provided a formal apology and an assurance that the mistake had been rectified. However, the plaintiff became obsessed with the error. Evidence was given at the trial by the plaintiff s treating psychiatrist, who adhered to a firm diagnosis of psychotic 67 (supra) at [62]. 68 (2000) 211 CLR 317.

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