PERSONAL INJURY CLAIMS PSYCHIATRIC INJURY

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 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 7-8. 3 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 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 617. 6 Consider the discussion by Spigelman CJ in 76 ALJ at pp.441-443 (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 47-48. 8 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 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 383. 12 Tame v New South Wales (2002) 211 CLR 317 at [140].

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 119. 14 (1939) 62 CLR 1. 15 Evatt J dissenting. 16 (1984) 155 CLR 549. 17 (supra) at 551. 18 (supra) at 553.

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 555-6. 20 (supra) at 603.

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 23. 21 (supra) at 605-6. 22 (supra) at 577. 23 (supra) at 579-580.

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 612. 25 (supra) at 613. 26 [2000] 2 QdR 92. 27 Pincus JA and Muir J; Williams J dissenting. 28 (supra) at [4] and [11]. 29 See Muir J s reasons at [61]-[66].

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 138-139 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 [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 687. 30 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 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 1986. 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 526. 33 Reported with Tame v New South Wales [2002] 211 CLR 317.

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 320. 35 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 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 45. 37 (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 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 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 180. 50 (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 (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 1982. 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 employed by the State of South Australia who counselled and assessed the child from 4 June 1986. 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.563-4. 58 Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ. 59 See 207 CLR at [43]-[48].

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? 64 60 (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 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 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 0.14. 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 0.14. The error was noticed and was corrected in February or March 1991. 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 1991. 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.

21 depressive illness stemming from the impact of the police mistake upon a vulnerable personality. 69 The Court unanimously held that Mrs Tame was not owed a duty of care 70. Two issues were prominent as grounds for rejecting Mrs Tame s claim that she was owed a duty of care. One of the grounds was the issue of foreseeability 71. The other reason for holding against Mrs Tame was that the Court concluded that, in completing the official report, the police officer was performing an official duty under which his primary obligation was to report his investigations honestly and frankly to his superiors. Accordingly, it was held that it would be inconsistent if that police officer were to be held to owe a duty of care to Mrs Tame. Gleeson CJ put it this way: [23] There are, in my view, two reasons why Acting Sergeant Beardsley was not under a duty of carer to Mrs Tame which required him to take reasonable care to avoid causing her injury of the kind she suffered. The first reason relates to the nature of the activity in which Acting Sergeant Beardsley was involved when he performed the act of completing the accident report and filling in, incorrectly, information about the results of Mrs Tame s blood test, and the relationship that existed between him and Mrs Tame. The second reason, which is essentially the basis upon which the Court of Appeal found against Mrs Tame, relates to reasonable foreseeability. [24] As to the first reason, the case seems to me to be governed by the same principles as resulted in the denial by this Court of the existence of a duty of care in Sullivan v Moody. 69 (supra) at p.319. 70 Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ. 71 To be discussed consequently below.

22 [25] In the performance of his duties, Acting Sergeant Beardsley was completing an official report into the circumstances of a motor traffic accident. In the ordinary court, the report would be used in making a decision as to whether charges should be laid against anybody involved in the accident. The two people involved were Mr Lavender and Mrs Tame. Copies of the report would also be available, on request, and for a fee, to third parties, such as litigants, their solicitors and insurers. Primarily, however, this was an official police report of the accident, and of the result of police observations, inquiries and tests. [26] The primary duty of a police officer filling out such a report is to make available to his or her superiors, honestly and frankly, the results of the observations, inquiries and tests that were made. It would be inconsistent with such a duty to require the police officer to take care to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation and report. [27] Not only was there no such relationship between Acting Sergeant Beardsley and Mrs Tame as would make it reasonable to require that he should act in contemplation of the danger of psychiatric injury to her; the relationship between them was inconsistent with such a requirement. [28] Furthermore, as in Sullivan v Moody, this is a case where the appellant claims to have been injured in consequence of what others were told about her. There is the same intersection with the law of defamation, and the same need to preserve legal coherence. In the events that occurred, Mrs Tame s reputation was not harmed. But suppose it had been. Then the law would have engaged in an exercise of balancing the rights and responsibilities of Mrs Tame and Acting

23 Sergeant Beardsley by reference to considerations many of which would be rendered irrelevant by the application of the law of negligence. 72 Gaudron J said: [57] Apart from the absence of any special relationship or any special feature of the relationship between Acting Sergeant Beardsley and Mrs Tame, two matters tell against his owing a duty of care to her. The first is that it is to be assumed that the exercise upon which Acting Sergeant Beardsley was engaged was the investigation of the question whether either Mrs Tame or the driver of the other vehicle involved in the accident which led to the making of the traffic accident report had committed a traffic offence It would be incongruous and, perhaps, give rise to incompatible duties if a person charged with the investigation of a possible offence were to owe a duty of care to the person whose conduct is the subject of that investigation. [58] The second matter which indicates that Acting Sergeant Beardsley did not owe a duty of care to Mrs Tame is the fact that the direct cause of her psychiatric illness was not the inaccurate recording of her blood alcohol level, but its communication with others. Thus, in this case as in Sullivan v Moody, there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. And as in Sullivan v Moody, [t]o apply the law of negligence in the present case would resolve that competition on an altogether difference basis. At the very least, the law of negligence with respect to psychiatric injury ought not be extended in a disconformity with other areas of the law. 73 72 (supra) at [23]-[28]. 73 (supra) at [57]-[58].

24 McHugh J referred to the coherence issue: This Court has already taken the view that, independently of policy issues relevant to the interests of the parties and persons like them, the need for the law to be coherent is a relevant factor in determining whether a duty exists. In Sullivan v Moody, the Court said that coherence in the law was a relevant factor in determining whether a duty of care existed. In Sullivan, the Court held that officers of the Department of Community Welfare owed no duty of care to a person affected by a communication made as the result of investigating, under a statutory power, a sexual assault allegation. 74 And concluded: It is unnecessary to decide in this case whether the administrative obligations of Constable Morgan and Acting Sergeant Beardsley negated the existence of a duty of care. My strong inclination is that police officers recording material relating to the administration of criminal justice have no duty to be careful to those affected by the material recorded. They should not have the burden of determining whether they have a duty of care in respect of every recording they make in the course of their duties. A blanket rule of no duty of care seems more in accord with the efficient administration of criminal justice than a case by case examination of each recording. If material is recorded honestly but carelessly, no action for defamation will lie, and I see no reason why the law of negligence should alter that balance. 75 In their joint judgment, Gummow and Kirby JJ emphasised the foreseeability issue in concluding that a duty was not owed 76 but significantly, upon this issue, their Honours said: It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be 74 (supra) at [123]. 75 (supra) at [126]. 76 See particularly at [232]-[234].

25 inconsistent with the police officer s duty, ultimately based in the statutory framework and anterior common law by which the relevant police service is established and maintained, fully to investigate the conduction in question. 77 Hayne J reached a similar conclusion: [298] Police officers investigating possible contravention of the law do not owe a common law duty to take reasonable care to prevent psychiatric injury to those whose conduct they are investigating. Their duties lie elsewhere and to find a duty of care to those whom they investigate would conflict with those other duties. [299] Mrs Tame committed no offence but, having been the driver of a motor car involved in an accident, police were doing no more than their duty in investigating whether there had been a breach of the law. In undertaking that task they were bound by numerous obligations and restraints, both statutory and common law. To impose upon them a further duty to take reasonable care to avoid psychiatric injury to a person whose conduct was being investigated would constrain their proper performance of those other duties. 78 Callinan J also emphasised the foreseeability issue and added: In Sullivan, reference was made to the statutory scheme which the defendants there were implementing, a scheme relevantly for the protection of children. The administrative scheme here has a number of purposes: to provide statistical information with a view, presumably, to exploring means for the prevention of accidents; to facilitate the investigation of accidents; to assist in the bringing of criminal or quasi-criminal proceedings in respect of them; and, perhaps other administrative purposes. There is a question here of the 77 (supra) at [231]. 78 (supra) at [298]-[299].

26 kind which was answered in the negative in Sullivan; whether the lawful administrative purposes of the scheme and its implementation are reconcilable with the imposition of a duty not to cause psychiatric injury to persons the subject of a relevant report. The other reasons which I have given for the denial of this appeal make it unnecessary to pursue that question here. 79 It might be added, at this point, that the Court of Appeal in Queensland has had occasion to consider Sullivan v Moody and Tame v New South Wales in this context in Hood & Anor v State of Queensland 80. In Hood it was asserted that public servants owed a wife a duty of care to keep her informed of the outcome of investigations into the conduct of her husband in the circumstances of a childcare investigation. Mrs Hood was the proprietor of a childcare facility and it was claimed by her that the investigations and the failure to keep her informed of the outcome of the investigations had caused her financial loss and psychiatric harm. The appeal concerned a refusal by a judge in Chambers to give Mrs Hood leave to proceed after significant delay but as part of the consideration of that issue, the prospective merits of the cause of action was discussed. It is apparent from the judgment of the Court of Appeal that their Honours considered that the prospective claim had little merit in light of the authorities discussed above 81. By far the most interesting case in a State court in which Sullivan v Moody has been applied is the decision of the Court of Appeal of New South Wales in State of New South Wales v Paige 82. Determined before the High Court gave judgment in Tame v New South Wales, the facts are set out in the head note of the Court of Appeal s issued judgment: Mr Paige ( the Respondent ) was the Principal of a Sydney high school from 1992 to 1998. In 1992, he received complaints from students regarding sexual misconduct of a teacher at the school occurring before the Respondent s appointment. He notified the New South Wales Department of Education ( the Department ) of some complaints, but dealt with the 79 (supra) at [336]. 80 [2003] QCA 408. 81 See particularly the reasons of McMurdo P at [29] and White J at [53]. 82 [2000] NSWCA 235 (19 July 2002).

27 complaints by a direct approach to the teacher and arranged to have him transferred from the school. In 1997, the Director-General of the Department issued a statement requesting a re-notification of sexual misconduct cases that had not been adequately investigated. The Respondent re-notified the complaints and notified some other complaints for the first time. The Respondent s conduct was investigated under Division 6 of Part 4 of the Teaching Services Act 1980. The Respondent was charged with a breach of his duties for non-compliance with Departmental procedures in the way he had handled the complaints. The charges were determined, pursuant to Clause 15 of the Teaching Services (Education Teaching Service) Regulation 1994, on written submissions only. In October 1997, the Respondent submitted, and subsequently withdrew, a notice of retirement. The prescribed officer found the Respondent guilty of the charges and the Director-General purported to accept the original notice of retirement. The Respondent concluded his service on 2 March 1998. The Respondent suffered psychiatric harm and lost income. The trial judge found that the Department had breached its duty of care to the Respondent. His Honour also found that the Department had not effectively terminated the Respondent s contract of employment. The trial judge awarded damages in both tort and contract, adjusting the award to eliminate double-recovery. 83 It will be seen that two claims were brought by Paige. One was for damages for personal injury (psychiatric) based upon tort 84 and another for damages for wrongful termination. The Court of Appeal was comprised by Spigelman CJ, Mason P and Giles JA, who unanimously overturned a decision in favour of the plaintiff s negligence claim. 83 www.austlii.edu.au 84 With which we are concerned.

28 Spigelman CJ 85 summarised the trial judge s findings upon the issue of the existence of the duty of care and breach of the duty as follows: [21] The trial judge found in favour of the Respondent on the cause of action in tort. Initially his Honour expressed the duty of care in the following way: an employer is under a duty of care to take reasonable steps to prevent psychological injury to its employees. His Honour relied for this proposition on State of New South Wales v Seedsman [2000] NSWCA 119. His Honour noted that the facts of that case were substantially different. His Honour is correct in that observation. It is unnecessary to discuss what, if any, general proposition Seedsman stands for, in view of the limited issues which the Appellant in that case raised for the Court s determination. Seedsman was concerned with the effects upon an employee of the circumstances in which she was required to perform the duties of her office. The present case, as his Honour noted, was concerned with matters peripheral to the actual performance of duties, including what his Honour described as: the conduct of investigations, disciplinary proceedings and the manner by which employment is terminated [22] His Honour formulated the duty of care that he applied in more specific terms than his initial formulation which I have set out in [21] above: 85 With whom Mason P and Giles JA agreed on the negligence claim; see paras [330] and [358] respectively.

29 Subject to the necessity imposed by the obligation of the defendant to carry out investigations and, where appropriate, to take action against employees who are in breach of the terms of their employment, for example, by the commission of disciplinary offences, it seems to me that the general duty of care resting on an employer to provide a safe system of work encompasses the provision of a safe system of investigation and decision making in the way described in the Statement of Claim. that is subject to the necessity involved in discharging contractual, common law or statutory obligations in relation to the conducting of inquiries. Any teacher who is subject to a disciplinary inquiry is likely to suffer stress and, possibly psychiatric injury, as a result of the conduct of such an inquiry. The breach of the duty of care in those circumstances will only come about where the system of investigation or decision making is not a proper or reasonable system or is carried out otherwise than in accordance with the rights of the employer to regulate its activities in accordance with contract, common law or statute. [23] His Honour then dealt with the issue of breach of duty in terms of conduct which fell short of the obligations of the duty of care imposed on an employer and which were not justified by the requirements of the law and statutes governing this form of employment. His Honour then went on to detail more particularly the findings of the trial judge on the issues of breach, causation and the wrongful dismissal claim 86. His Honour then set out the statutory scheme under the relevant Act and Regulations. These included provisions relating to the 86 (supra) at [24]-[51].

30 investigation of complaints against teachers, the laying of charges against teachers, the method by which these charges would be heard and determined and appeals therefrom 87. His Honour introduced his examination of the case that the defendant employer did not owe a duty of care in the circumstances of this case: [76] In his reasons, his Honour expressed the duty of care owed by the Appellant as the employer in two interrelated ways. First, his Honour said there was a duty of care to take reasonable steps to prevent psychological injury to its employees. Secondly, his Honour said the duty to provide a safe system of work encompasses the provision of a safe system of investigation and decision making, relevantly, with respect to procedures for discipline and termination of employment. [77] In its submissions to this Court, the Appellant accepted that it had a duty to avoid the risk of foreseeable injury and that there were circumstances in which psychiatric injury was relevantly foreseeable. Nevertheless, it submitted that there was no duty of a character relevant to the present proceedings. [78] The trial judge s reference to the well know category of duty to provide a safe system of work, conceals the novelty of the duty his Honour identified in this case. There is an ambiguity inherent in the word system. The body of case law with respect to a safe system of work has been, so far as I am aware, exclusively concerned with the conduct of tasks for which an employee is engaged. (See e.g. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308-309.) His Honour made no reference to any authority, nor was any authority drawn to the attention of this Court, that extended the concept of a system of work to matters concerning the incidents of 87 (supra) at [52]-[70].

31 the contract of employment, such as the disciplinary procedures under consideration in the present case. This is a novel category of duty and involves an extension of employers duties. In the present context, it raises important considerations concerning the interrelationship between duties of care and statutory powers and duties. [79] The Appellant s basic contention is that there was no duty that extended to encompass the conduct on behalf of the Appellant in issue in these proceedings. The Appellant relied on the recent decision of the High Court in Sullivan v Moody (2001) 75 ALJR 1570. 88 and then went on to examine Sullivan v Moody in detail 89. For Spigelman CJ, the issue at the heart of the plaintiff s case was: [91] The determination of whether a common law duty of care exists with respect to the exercise of statutory powers is not the subject of authoritative guidance from the High Court. A number of different approaches is discernible in recent authority. (See Pyrenees Shire Council v Day (1998) 198 CLR 330; Romeo v Conservation Commission of the Northern Territory (1998) 1982 CLR 431; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Brodie v Singleton Shire Council (2001) 75 ALJR 992.) The joint judgment in Sullivan v Moody does not reconcile the different approaches, save by rejecting the three stage test previously applied by Kirby J. [92] However, as Gleeson CJ has noted in Brodie supra at [31] 88 (supra) at [76]-[79]. 89 (supra) at [80]-[90].

32 Legislation and the common law are not separate and independent sources of law; the one the concern of parliaments, the other the concern of courts. They exist in a symbiotic relationship. [93] When considering the issue of coherence it is necessary to give close consideration to the statutory scheme: specifically whether a common law duty is inconsistent or incompatible with the statute and, relevantly in this case, the regulations. (See e.g. Crimmins at [3]. [18]. [93 at 6], [114], [203]-[213]; Sullivan v Moody at [60].) However, issues of coherence may arise even if there is no direct inconsistency. It may be enough if the effect of imposing civil liability is to distort [the] focus of the statutory decision-making process. (Crimmins at [292] per Hayne J.) [94] Similar issues have arisen in New Zealand with respect to investigations by social workers into the suitability of prospective adopting parents and into allegations of child sexual abuse. However, in New Zealand law the three stage test in Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617-618, applied. The New Zealand cases ask whether imposing a duty of care is fair, just and reasonable. This is not the law in Australia. (Sullivan v Moody at [49].) Nevertheless, the cases do indicate the variety of considerations that suggest a relevant incompatibility between a statutory scheme and a common law duty. (See Attorney-General v Prince and Gardner [1998] 1 NZLR 262; B v Attorney General [1999] 2 NZLR 296; see generally Todd Liability in Tort of Public Bodies in Mullany & Linden (eds) Torts Tomorrow: A Tribute to John Fleming 1998 at 48-49.) Recent English authority on civil liability for the exercise of a statutory power also applies the three stage Caparo test and is, similarly, of little assistance. (See e.g.

33 Barrett v Enfield LBC [2001] 2 AC 550; Phelps v London Borough of Hillingdon [2001] 2 AC 619.) [95] When in Sullivan v Moody at [50], the joint judgment referred to the need to preserve the coherence of other legal principles, or of a statutory scheme, the authority referred to was Hill v Van Erp (1997) 188 CLR 159 at 231, where Gummow J had referred to one coherent system of law. The present case raises issues of compatibility and coherence both between the law of tort and statutes and between the law of tort and the law of contract, as modified by statute and between the law of tort and administrative law. 90 The Chief Justice then proceeded to deal, and at some considerable length and detail, with the issues mentioned in that last sentence 91. His Honour noted that there were a number of factors in favour of a recognition of the duty of care, including the relationship of the employer and the employee, the non-delegable duties that arose, the vulnerability of employees to injury as a result of employer s conduct and the control the employer exercises over an employee 92. But he concluded in emphatic terms: Nevertheless, the issues of coherence with the law of employment and administrative law, which I have discussed above, together with the element of incompatibility of duties, are so significant as to outweigh these considerations. In my opinion, there was no duty of care of the character found by his Honour. 93 90 (supra) at [91]-[95]. 91 (supra) at [97]-[177]. Time does not permit me to deal with his Honour s complex argument in detail. Note that the ultimate conclusion of the incompatibility between the statutory duties or obligations and the duty of care contended for was expressed at [131]. His Honour s conclusions with respect to the incoherence between the law of employment and administrative law and the alleged duty was explained at [155] and [177] respectively. 92 See (supra) at [178]-[181]. 93 See (supra) at [182].

34 Undoubtedly we have not heard the last of Paige s Case. Increasingly, claims are being agitated, at least in the pre-court stage to the effect that an employer s handling of complaints made by or against workers has contributed to the onset or the suffering of a psychiatric illness. May I suggest one respect in which Paige s Case will be debated in the future? It concerns Spigelman CJ s characterisation of the system cases 94. Let us assume his Honour s distinction between a system or task based duty of care and the issues relating to discipline is correct, but what about the statutory obligation in this State under the Workplace Health and Safety Act 1995? 95 The reconciliation of that Act with the New South Wales decision will have to wait. It will involve a consideration of the particular facts and all the relevant legislation including the industrial safety legislation. Tame v New South Wales Other Issues Injury not foreseeable All the members of the High Court held that it was not foreseeable in the circumstances that Mrs Tame that would have sustained a psychiatric injury. Gummow and Kirby JJ, in their discussion, observed that such a risk was far fetched or fanciful 96. Gleeson CJ said it was not reasonable to require the police officer, who completed the form, to have Mrs Tame s mental health in mind at the time he filled it out 97. Because of his conclusions upon the normal fortitude issue, McHugh J expressed himself a little differently, but to the same effect, concluding that, even if the police officer might have thought there was some risk of mental illness, it was so small that it could reasonably be disregarded 98. Callinan J was content to say that he agreed with the Court of Appeal of New South Wales on this point, so that Mrs Tame s case failed at the threshold 99. Recognisable Psychiatric Illness 94 See paras [76]-[79] quoted above. 95 See: Schiliro v Peppercorn Childcare Centres Pty Ltd [2002] 2 QdR 83. 96 (supra) at [233]; Gaudron J agreed with Gummow and Kirby JJ in their conclusions on this point, see [63]. 97 (supra) at [29]. 98 (supra) at [120]; Hayne J agreeing on this point, see [300]. 99 (supra) at [331].

35 A plaintiff must prove that the conduct has caused a recognised psychiatric illness. Absent that, damages are not recoverable for distress, alarm, fear, anxiety, annoyance or despondency 100. Normal Fortitude Test In Tame v New South Wales, there was considerable discussion of this principle. The headnote in the Commonwealth Law Reports would suggest that the test was overruled by a majority of four to three. But when one reads the judgments, it is apparent that, in substance, there is little difference, at least when one considers the practical consideration of reasonable foreseeability between the views of the judges. Consider Gleeson CJ, who is one who has rejected the test: Furthermore, there may be something about the vulnerability or susceptibility of a particular plaintiff that makes it unreasonable to require a person to have in contemplation the kind, or perhaps the degree, of injury suffered. In the context of remoteness of damage, it is established that a tortfeasor must take a victim as the victim is found; but we are presently concerned with whether there is a duty of care, and whether a tort has been committed. Putting to one side cases where a defendant knows, or ought to know, of the peculiar susceptibility of a plaintiff, the law has established what Brennan J described in Jaensch v Coffey as an objective criterion of duty. The variety of degrees of susceptibility to emotional disturbance and psychiatric illness has led courts to refer to a normal standard of susceptibility as one of a number of general guidelines in judging reasonable foreseeability. This does not mean that judges suffer from the delusion that there is a normal person with whose emotional and psychological qualities those of any other person may readily be compared. It is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of 100 (supra) at [7] per Gleeson CJ. See further Gummow & Kirby JJ at [193]-[194] with whom Gaudron J agreed at [44]. See also the observations of Hayne J at [285] and following with his discussion of DSM IV at [293].

36 harm to them, or to expect strangers to take care to avoid such harm. Such people might include those who, unknown to a defendant, are already psychologically disturbed. That idea is valid and remains relevant, even though normal fortitude cannot be regarded as a separate and definitive test of liability. 101 And to similar effect, also Gaudron J: To say that normal fortitude is not and cannot be the sole criterion of foreseeability, is not to deny that, ordinarily, normal fortitude will be a convenient means of determining whether a risk of psychiatric injury is foreseeable. However, it will be otherwise if the defendant has knowledge that the plaintiff is particularly susceptible to injury of that kind or is a member of a class known to be particularly sensitive to the events in question. 102 Gummow and Kirby JJ made observations to like effect 103. Three judges were minded to retain the test 104. But consider what Hayne J said of the test : Reference to the person of reasonable or ordinary fortitude provides a very important limit to the duty of care to prevent psychiatric injury. It is a limit that should not be abandoned. Unless the defendant knew or ought reasonably to have known that want of reasonable care may injuriously affect a person whom the defendant knew or ought reasonably to have known was abnormally sensitive to the risk of psychiatric injury, the duty which the defendant owes should be held to be a duty to act with reasonable care not to cause psychiatric injury to a person of reasonable or ordinary fortitude. 105 101 (supra) at [16]. 102 (supra) at [62]. 103 (supra) at [201]. 104 See McHugh J at [95], Hayne J at [273] and Callinan J at [366]. 105 (supra) at [273].

37 My reading of the judgments in Tame v New South Wales leads me to the conclusion that, central to the inquiry of the reasonableness of the conduct complained of and of the foreseeability of the injury, will be whether, absent knowledge of a particular vulnerability, the tribunal of fact considers that the alleged tortfeasor could reasonably be expected to contemplate that the person they are dealing with, who is otherwise ordinary, would suffer a psychiatric illness. Breach - Reasonable and Unreasonable Conduct The touchstone, when considering whether a person has breached a duty of care not to injure another, is the reasonableness of the conduct 106. In the context of psychiatric injury, this will always be an important, if not decisive, consideration. Now cases that involve negligence by an employer, motorist or occupier, where physical injury causing the death or severe disability of a person that precipitates a psychiatric illness in a close relative or co-worker are easy to understand. In those cases, the employer, motorist or occupier has breached a duty of care to A who has suffered a physical injury and, in turn, B has sustained a psychiatric illness. In these cases, the inquiry will be whether the employer, motorist or occupier owed a duty of care to B, the psychiatrically harmed, but physically uninjured, person. But what of conduct that does not physically harm but is said to cause or trigger a psychiatric decompensation? I propose to briefly refer to a number of cases to show how the courts have resolved these issues in different circumstances. In Russo v Carpentaria Transport Pty Ltd [2000] QSC 83, the plaintiff sued his employer, complaining that unreasonably heavy workloads, combined with the requirement to work excessive overtime, caused him to suffer a psychiatric illness. Williams J found for the 106 Tame v New South Wales (supra) per Gleeson CJ at [8], Gummow & Kirby JJ at [195], Callinan J at [331].

38 defendant, holding that ultimately the psychiatric illness from which the plaintiff complained was biologically caused and not triggered by the workplace. His Honour also held that the plaintiff was an unreliable historian and did not accept much of his evidence concerning the work situation and the overtime he alleged to work. In the course of his reasons, his Honour observed: It is, of course, not sufficient for the plaintiff to prove that stress associated with his employment aggravated his condition. Virtually every job will from time to time place stress on an employee. An employer is not negligent simply because there is stress associated with the task the employee is required to perform. In order to recover damages at common law negligence by the employer must be established and that, in very broad terms, must involve some unreasonable conduct on the employer s part and some foreseeability of the consequences of acting in that way. 107 In Ilosfai v Excel Technik Pty Ltd 108, Chesterman J considered a claim by an employee who alleged that he had been unreasonably exposed to the risk of suffering a psychiatric illness when working as a technician installing security alarm systems at the Edward River Aboriginal Community and later at the Maroochydore Watch House. The plaintiff alleged that, when working at Edward River, he was abused by a drunken woman and that, in the Watch House, he was threatened by a prisoner. In holding that the employer had not unreasonably exposed the plaintiff to the risk of such illness, his Honour made the following observations: The first question to be addressed is whether the defendant should reasonably have foreseen that the plaintiff might suffer injury, whether psychiatric or physical as a result of an assault at Edward River. The defendant accepts, correctly, that in certain circumstances it would owe a duty to take reasonable care to protect the plaintiff from the criminal behaviour of third parties despite the unpredictable and unlawful nature of that conduct. 107 (supra) at [20]. 108 [2003] QSC 275.

39 The existence of the duty depends on the reasonable foreseeability of injury from criminal activity by third parties. As to this the only evidence is that Edward River was a safe place for its white population, including journeymen tradesmen such as the plaintiff. The plaintiff himself accepted that the confrontation was something unexpected and out of the blue. The particular woman was unknown to the plaintiff, his co-workers and his employer. There was no basis for thinking that she might constitute any threat to any of the defendant s employees. According to Mr Browne who had himself gone to Edward River with the plaintiff on the first occasion when the defendant commenced work at the police station it was not a hostile social environment. Mr Browne was not aware of any attack or of any violence done to any of the white population on any of the occasions when he was at Edward River. He had never heard of such an attack or incident. He had spoken to police officers in the course of preparing for the work his company was to do and had not been told of any particular problems. It was not suggested that there were such incidents or that he should have been concerned that the plaintiff (or another employee) may be subjected to a criminal assault. Constable Laycock who had been stationed at Edward River for two years from 2001 was called to prove that there was no police record of the incident. There was no cross examination to elicit the existence of any danger to persons such as the plaintiff whilst working in the settlement. The incident occurred in daylight hours on the main thoroughfare between the police station and the boarding house. Given the evidence I have just rehearsed I am not satisfied that a criminal assault upon the plaintiff while working at Edward River was reasonably foreseeable. Even if it were foreseeable that the plaintiff might be abused (and I am not satisfied there was

40 more than that) it was not such an occurrence as to give rise to a foreseeable risk that it would cause injury. 109 The foregoing cases can be contrasted with three decisions of the Court of Appeal of New South Wales in different circumstances. In State of New South Wales v Seedsman 110, the Court of Appeal had to consider a claim that had been brought by a police officer who had worked for many years in the child mistreatment unit. After years of service, having dealt with many cases of appalling abuse and violence to children, she developed a post traumatic stress disorder. There was evidence before the court, which had been accepted by the trial judge, that for a long time the police service had been aware that employees in the situation of the plaintiff were at risk of, or at least vulnerable to, psychiatric disturbance. The evidence suggested that the police service was aware that it was desirable that such employees receive certain training so as to attempt to minimise the risk of illness and also other considerations such as a rotation of duties, but that, despite this, no such steps had been taken by the police service. The Court of Appeal unanimously upheld the findings of the trial judge that the employer had unreasonably exposed an employee to the risk of illness and that the exposure had relevantly caused the psychiatric illness. In State of New South Wales v Jeffery 111. the Court of Appeal upheld a judgment in favour of a plaintiff who had been employed in the police service and the related Police Citizens Youth Club. The particular plaintiff had, over an extensive period of time, been subjected to quite gross bullying by his supervisor, a police sergeant. The evidence was that the sergeant had conducted himself in a hostile and harassing way over an extensive period of time and that he had made the plaintiff s life a misery. He frequently found fault with the plaintiff s work when it was inappropriate to do so and engaged in vulgar abuse of the plaintiff. He made threatening remarks to him, frequently asserting that he would have the plaintiff sacked so that he and his 109 (supra) at [30]-[33]. 110 [2000] NSWCA 119 (5 December 2000). 111 [2000] NSWCA 171 (1 September 2000).

41 family would end up in the gutter. The sergeant also made disparaging and humiliating remarks publicly about the plaintiff s relationship with his wife. The Court of Appeal was satisfied that the evidence established that the sergeant s bullying tactics had had an adverse psychological effect upon the plaintiff, resulting in a psychiatric illness. The judgment in favour of the plaintiff was unanimously upheld. In Patrick Stevedores (No 1) Pty Ltd v Vaughan 112, the Court of Appeal considered a claim by an employee of Patrick Stevedores who suffered a psychiatric illness as a result of being threatened and abused by picketing waterside workers when he crossed a picket line going to work for his employer. In the course of the judgment, whereby the appeal against the finding in favour of the plaintiff was dismissed, Davis AJA 113 said the following: In the present case, the danger which Mr Vaughan encountered was not a danger which it was necessary to encounter in the ordinary course of work on the Botany Bay work site. It was not a danger inherent in working on the waterfront. The danger was created by Patricks itself when it decided, for its own economic benefit, to take steps to break the monopoly of the MUA. The first step it took was to lock out its employees, the vast majority of whom were members of the MUA. It was inevitable that there would be a major confrontation with the members of the MUA and with members of supporting unions. It was also inevitable that, if Patricks sought to bring workers onto the site, those workers would be at risk of physical or psychological harm. If Patricks had had due regard for the safety of its employees, it would never have sent them by bus through the angry milling crowd of unionists and union supporters and it would not have asked them to work in a situation where they were subject to physical harm, to threats and to constant abuse under threats. 114 112 [2002] NSWCA 275 (2 September 2002). 113 With whom Beasley JA and Stein JA agreed. 114 (supra) at [22].

42 Finally, reference should be made to the recent decision of the Full Court of Western Australia in Cerebos (Australia) Ltd v Koehler 115. In this case, the Full Court overturned a finding of negligence that was made against an employer. The plaintiff worked as a sales representative for the appellant. She complained that her duties were excessive and that, despite complaints, her workload was not reduced and that subsequently, as a consequence of her excessive duties, she suffered a psychiatric illness. The employer appealed a finding of negligence, arguing that it was not foreseeable in the circumstances that an employee would suffer an illness. The Full Court upheld the submission. The following passages explain the approach of the Full Court: [44] The relationship of employer and employee requires the employer to take reasonable care to avoid unnecessary risks of injury to an employee: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. The employer s duty includes the provision of a safe system and safe place of work and is non-delegable: Kondis v State Transport Authority of New South Wales (1984) 154 CLR 672. Emotional distress resulting in some disorder of the mind which is caused by a breach of duty can give rise to a liability for damages on the part of an employer: Mt Isa Mines Ltd v Pusey (1971) 125 CLR 383. [46] In the present case, having regard to these authorities, the appellant accepted that it owed a duty to take reasonable care to avoid exposing the respondent to an unnecessary risk of injury, including psychiatric injury. This meant, having regard to the reasoning of Mason J in Wyong (above), that the appellate court was concerned essentially with the question of whether there had been a breach of the duty of care. This led to the further question of whether a reasonable 115 [2003] WASCA 322.

43 person in the appellant s position would have foreseen that the conduct complained of involved a risk of injury to the respondent. 116 The Full Court then considered a number of decisions in Western Australia, the United Kingdom and the decision of the High Court in Tame v New South Wales. In the course of the consideration of a decision of the Court of Appeal in the United Kingdom 117, the Full Court reserved: [56] His Lordship went on to observe that the test is whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned. Such a reaction will have two components being an injury to health which is attributable to stress at work. The answer to the foreseeability question will depend upon the inter-relationship between the particular characteristics of the employee concerned and the particular demands which the employer casts upon him. These include the nature and extent of the work being done by the employee. Employers should be more alert to picking up sings from an employee who is being overworked in an intellectually or emotionally demanding job than from an employee who workload is no more than normal for the job or whose job is not particularly demanding for him or her. It will be easier to conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is in all the circumstances of the case unreasonable. Signs from the employee himself will be important. [57] He said further (at para 28) that harm to health may sometimes be foreseeable without an express warning. Factors to take into account would be frequent or prolonged absences from work which are uncharacteristic for the person concerned; these could be for physical or psychological complaints; but there must also be good reason to 116 (supra) at [44] and [46]. 117 Hatton v Sutherland [2000] 2 AllER 1.

44 think that the underlying cause is occupational stress rather than other factors; this could arise from the nature 118 of the employee s work or from complaints made about it by the employee or from warnings given by the employee or others around him. However, unless he knows of some particular problem or vulnerability, an employer is usually entitled to assume that his employee is up to the normal pressures of the job. 119 In Cerebos, the Full Court concluded that the employer had not breached its duty of care because there was no evidence that, in the circumstances that applied, the employee was suffering to the extent that a psychiatric illness was likely or foreseeable, nor was there any evidence of any particular vulnerability to put the employer on notice: [59] In evaluating the submissions made by counsel for the appellant, I incline to the view that the supposed difference of opinion in the two jurisdictions is not of any real significance in the circumstances of the present case. To my mind, as indicated by Gummow and Kirby JJ, the central enquiry is whether the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable. That will necessarily require that consideration be given to facts and matters that might alert the employer to the presence of a risk of injury, unless the employee is known to be in a special position or susceptible to injury. In the absence of specific complaint by the employee or fellow employees, or other signs of prospective injury such as absences from work or unusual conduct, for the reasons indicated by the Court of Appeal in Hatton (above) and by McHugh J in Tame v New South Wales (above), the employer is entitled to assume that there will be a normal reaction to the conduct in question. 118 Cerebos (supra) at [56]-[57]. 119 (supra) at [56]-[57].

45 [60] Put shortly, in Tame v New South Wales (above) the High Court reviewed certain restrictions previously recognised in regard to claims for psychiatric damage and held that the common law of Australia does not limit liability for damages for psychiatric injury to cases where the injury is caused by sudden shock, or to cases where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath. It recognised also that a claim for breach of duty can be enforced by a person who is susceptible to injury. However, it accepted that the test for normal fortitude can be used to assist the assessment of reasonable foreseeability of harm. [61] For present purposes, then, I consider that the test of whether the employer failed to exercise reasonable care to avoid exposing the respondent to an unnecessary risk of injury is whether the disorder complained of was foreseeable with respect to the respondent rather than whether it was foreseeable with respect to a person of normal fortitude. However, as I have indicated, that will necessarily lead to an examination of the Judge s findings and related evidence with a view to determining whether the appellant was alerted to the risk of an injury by reference to the circumstances of the particular employee. Nonetheless, if there are no specific symptoms of ill health or potential injury sufficient to prompt an employer to take remedial action, the decided cases indicate that the employer is entitled to assume that there will be a normal reaction to the conduct in question. There was no evidence that the respondent had any known psychiatric vulnerability and she herself and the various experts seemed to accept that she had no past history of psychiatric illness. Accordingly, I consider that the first ground of appeal is made out and the appeal should be allowed on this ground. 120 120 (supra) at [59]-[62].

46 In concluding upon this issue, one should always be cautious in attempting to draw principles of general rules from disparate decisions concerning particular facts and situations. Nevertheless, may I venture this observation. The decisions in New South Wales are examples of particular circumstances of either inappropriate conduct by workers for whom the employer is vicariously liable, or of circumstances where the employer knowingly and unnecessarily exposed workers to significant risks. The other cases where the plaintiffs have failed have involved circumstances where they were engaged in fairly routine jobs albeit in circumstances where they may have been required from time to time to work hard or extend themselves. In those cases, in the absence of any evidence of unreasonable conduct and in the absence of any evidence of particular vulnerability or susceptibility, the employers have been held not to be liable 121. Obligation to Prevent or Minimise the Risk of Illness In the context of the employment relationship, it is established that one of the obligations of the employer is to take measures or adopt means reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly implementing its accomplishment 122. In some employment circumstances, the risk of psychiatric illness as a result of the performance of duties might be recognised as foreseeable. Examples which come to mind include employees in the emergency services, and employees who are exposed to dangerous or violent persons, such as police officers and prison officers. The employer then might be required to take steps to prevent injury or minimise the risk of injury. In Queensland Corrective Services Commission v Gallagher 123, the Court of Appeal, in overturning a finding of negligence against the employer, held inter alia that the employer had 121 See further the recent decision of Mullins J of Joynson v State of Queensland [2004] QSC 154. 122 See Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319; Bankstown Foundry Pty Ltd v Brastina (1986) 160 CLR 301 at 308 and Turner v South Australia (1982) 56 ALJR 839 at 840 per Gibbs CJ. 123 [1998] QCA 426.

47 taken reasonable steps to prevent or minimise the risk of injury by providing a comprehensive psychological counselling service to employees designed to prevent or minimise the risk of injury. Speaking of that service in a subsequent case 124, Helman J made the following observation: [51] It is clear that the responsible officers of the defendant were at all relevant times well aware of the ever-present sources of stress on prison officers. Such stress could never be completely eliminated, but the defendant took the precaution of making available to prison officers the services of the Interlock counsellors. It did not itself provide training on methods of dealing with stress, but made available the services of independent counsellors outside the organisation. It will be arguable in my view that the defendant need not have gone as far as it did in taking precautions against the effect of stress on its employees, particularly for those as senior in years and experience and as mature as the plaintiff was. A less elaborate and less expensive system may have been sufficient. But it went further and provided at no expense to the employees the services of independent counsellors. That was, on my assessment, an adequate precaution to discharge the responsibility of the defendant as employer. 125 It will always be an issue in a particular case, and in the circumstances of each particular industry whether, in the first place, a response such as that considered in the cases referred to was necessary and, if necessary, whether it was a reasonable response in the circumstances. In this regard, reference might also be made to the decision of Chesterman J in Ilosfai v Excel Technik Pty Ltd 126 which I discussed earlier. In the second event, for which the plaintiff unsuccessfully sued, he alleged that further precaution should have been taken in the circumstances of his working in a prison watch house. He alleged that, on one occasion, he 124 Hardy v Queensland Corrective Services Commission [2000] QSC 10. 125 Hardy (supra) at [51]. 126 [2003] QSC 275.

48 was physically threatened by a prisoner when he was working in the watch house. Chesterman J rejected the plaintiff s claim on the grounds, inter alia, that the plaintiff had not been able to prove in the particular circumstances that there was any particular response that should have reasonably been taken by the employer to minimise the risk of such a threat or assault which might have been effective in minimising such risk 127. Causation Assuming the prospective plaintiff can prove a duty of care and the breach thereof, the plaintiff then must prove that the psychiatric illness was relevantly caused by the defendant s breach. A lot depends upon the characterisation of the conduct amounting to the breach of the duty of care. Where it is alleged there was a wrongful act by the employer, that caused or contributed to the suffering of a psychiatric illness, generally speaking, a plaintiff will have to lead evidence that demonstrates a causal nexis between the conduct and the illness. In the more difficult case where the breach is alleged to have been a wrongful failure to act, then the plaintiff will have to prove that it was likely that, if the conduct that ought to have occurred had occurred, the result would have been different. Cases for psychiatrically distressed plaintiffs can be difficult for their legal practitioners. Some psychiatrically ill plaintiffs are unreliable historians 128. Frequently, the very nature of their disease is such that they attribute their illness to a number of contemporaneous life events, some related to the alleged wrongful conduct and some unrelated. When such history is given by a plaintiff, the issue arises as to whether the cause is attributable to the wrongful conduct or whether the cause is otherwise or multifactorial. Every case, however, depends upon its own facts. A number of the cases referred to above involves situations where, for one reason or another, the plaintiffs fail to prove causation in the relevant sense. Sometimes the courts concluded that there was no evidence that, if the 127 See particularly paras [38]-[45]. 128 See, for example, Hardy v Queensland Corrective Services Commission (supra) at [37] and Joynson v State of Queensland (supra) at [86] and [89].

49 defendant s conduct had been otherwise, the outcome would have been otherwise, sometimes there was a failure to lead evidence to prove a link between the psychiatric illness and the impugned conduct and sometimes the courts have concluded that the psychiatric condition was caused by factors independent of the impugned conduct 129. 129 See for example in Russo v Carpentaria Transport Pty Ltd (supra), where the cause of the psychiatric illness was held to be related to biological factors not factors associated with the impugned work. In Ilosfai v Excel Technik Pty Ltd (supra), the plaintiff failed to prove a causal nexis between the impugned events and the illness from which he suffered. In Queensland Corrective Services Commissions v Gallagher (supra), the plaintiff failed to prove that there was any causal link between his illness and any breach of the duty of care owed to him or that any of the actions he alleged the employer ought to have done but failed to do would have made any difference to the outcome. In Midwest Radio Ltd v Arnold [1999] QCA 20, the plaintiff failed to prove the facts upon which the expert witnesses had based their opinion.