Tame v New South Wales

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

CLARE JANET TAME  APPELLANT

AND

THE STATE OF NEW SOUTH WALES  RESPONDENT

Tame v New South Wales [2002] HCA 35
5 September 2002
S83/2001

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

P C B Semmler QC and N J Mullany for the appellant (instructed by Herbert Weller)

B H K Donovan QC with S C Finnane for the respondent (instructed by I V Knight, Crown Solicitor for New South Wales)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

LESLIE ANNETTS & ANOR  APPLICANTS

AND

AUSTRALIAN STATIONS PTY LIMITED  RESPONDENT

Annetts v Australian Stations Pty Limited
5 September 2002
P97/2000

ORDER

1.   Application for special leave granted.

2.   Appeal allowed.

3.   Set aside the order of the Full Court of the Supreme Court of Western Australia dated 21 November 2000 and, in its place, order that the appeal to that Court be allowed and the question posed by Heenan J in his order dated 5 May 1999, for the trial of a preliminary issue, be answered "Yes".

4.   Respondent to pay the applicants' costs at first instance, in the Full Court and in this Court.

On appeal from the Supreme Court of Western Australia

Representation:

B W Walker QC with G M Watson for the applicants (instructed by Brezniak Neil-Smith & Co)

D F Jackson QC with S C Finnane for the respondent (instructed by Deacons)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Tame v New South Wales

Negligence – Duty of care – Psychiatric injury – Motor accident – Clerical error by police constable in recording driver's blood alcohol content – Psychotic depressive illness caused by driver learning of mistake – Whether duty of care owed by police constable to driver – Whether psychiatric injury reasonably foreseeable – Whether sole determinant of duty – Other control mechanisms for imposition of duty – Normal fortitude – Sudden shock – Direct perception – Immediate aftermath.

Annetts v Australian Stations Pty Limited

Negligence – Duty of care – Psychiatric injury – Death of child – Assurances of constant supervision of child made by employer to parents – Whether duty of care owed by employer of child to parents – Whether psychiatric injury reasonably foreseeable – Whether sole determinant of duty – Other control mechanisms for imposition of duty – Normal fortitude – Sudden shock – Direct perception – Immediate aftermath.

1. GLEESON CJ.   These two matters (the first, an appeal from the Court of Appeal of New South Wales[1]; the second, an application for special leave to appeal against a decision of the Full Court of the Supreme Court of Western Australia[2]) were heard together.  The elements common to both are that they concern the tort of negligence, and the harm suffered by the plaintiffs was psychiatric injury unassociated with any other form of injury to person or property resulting from the allegedly tortious conduct.  To describe them as cases about psychiatric injury directs attention to the kind of harm suffered by the injured plaintiffs, and the interests of the plaintiffs which the law might protect.  However, the law of tort concerns duties as well as rights, and responsibilities of defendants as well as entitlements of plaintiffs.  If attention is directed to the conduct of the alleged tortfeasors, and the responsibilities attributed to them, the two cases are quite different.

   [1]Morgan v Tame (2000) 49 NSWLR 21.

   [2]Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35.

2. In the first case, the respondent is sought to be made vicariously liable for the conduct of a police officer who made a clerical error in filling out a report about a traffic accident.  The circumstances in which that error became a cause of psychiatric injury to the appellant will be examined below.  The allegedly tortious act is that of the police officer in erroneously completing the accident report.  He had no contact with the appellant, and made no communication to her.  He entered some information about her in a routine form.  That information was incorrect.  The error was obvious.  It was soon corrected; and it was never acted upon by anybody.  The police officer's conduct consisted in recording and communicating to third parties incorrect information about the appellant.  He made a careless misstatement; but nobody relied upon it.  The appellant's reputation was not affected.  There was no claim in defamation.

3. In the second case, at one level, the conduct of the respondent was of a kind that commonly forms the basis of tortious liability; it was the alleged failure of an employer to provide an employee with a safe system of work.  But there is more to it than that.  The employee was a minor.  His parents, the applicants, had agreed to permit him to work for the respondent, in a remote part of outback Australia, on the faith of assurances that he would be well cared for.  It is alleged that he was not well cared for.  He died.  The parents suffered psychiatric injury.

4. In both cases, the central question is whether the alleged tortfeasors were under a legal duty to take reasonable care to avoid psychiatric injury to the victims.  In each case, the answer to that question depends as much upon the nature of the activity in which the alleged tortfeasor was engaged as upon the nature of the harm suffered by the victim or victims.

5. Much was said in argument about the caution with which the common law has approached claims for damages for psychiatric injury.  It was observed that many medical practitioners would regard it as unscientific to distinguish psychiatric injury from any other form of personal injury.  It may equally be said that economists would regard it as unscientific to distinguish between damage to property and other forms of economic harm.  That does not mean that there is no legally relevant difference.  There is a tendency to assume that physical injury to person or property is the paradigm case for the application of the law of negligence, and that, in the case of any other kind of harm, the application of the same general principles ought to produce the same practical results.  This overlooks the concern of the law, not only with the compensation of injured plaintiffs, but also with the imposition of liability upon defendants, and the effect of such liability upon the freedom and security with which people may conduct their ordinary affairs.

6. One of the reasons for the rejection of a general rule that one person owes to another a duty to take care not to cause reasonably foreseeable financial harm is that the practical consequence of such a rule would be to impose an intolerable burden upon business and private activity.  Furthermore, such a rule would interfere with freedoms, controls and limitations established by common law and statute in various contexts[3].  Unscientific as may be the distinction between "pure" economic loss, "parasitic" economic loss, and damage to property, the care which the law requires people to show for the person or property of others is not matched by a corresponding requirement to have regard to their financial interests.  The distinction is not based on science or logic; it is pragmatic, and none the worse for that.

   [3]Perre v Apand Pty Ltd (1999) 198 CLR 180 at 192 [4]-[5].

7. The case of Mrs Tame provides a good example of the practical consequences of recognition of a general duty to take care not to cause emotional disturbance to other people.  It was common ground in argument that, save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness[4].  Bearing in mind that the requirement of causation is satisfied if a defendant's conduct is a cause of the damage complained of, and the manifold circumstances in which one person's conduct may be a factor in inducing an emotional response in another, the consequence of imposition of such responsibility would be to impose an unacceptable burden on ordinary behaviour.  Even accepting that recognisable psychiatric illness is a necessary condition of a plaintiff's claim, the development by Mrs Tame of a condition that was diagnosed in 1995 as psychotic depressive illness, in consequence of being informed by her solicitor, in 1992, that a police officer, in 1991, had made a clerical error in filling out an accident report form, suggests the implications of the imposition of a duty of the kind in question.  It came to the notice of Mrs Tame, in circumstances that most people would find harmless, or at worst mildly annoying, that some mistaken information to her discredit had been communicated by one person to another.  Communication of information, whether in the form of official reports, news, business dealings, or private conversation or correspondence, will often distress a person to whom such information is communicated, or some other person who later becomes aware of the communication.  Mrs Tame's case shows how such distress may develop into psychiatric illness.  How are people to guard against such a possibility?  What does the law require by way of care to avoid it?  In what circumstances will the law impose damages for lack of care?

   [4]See, eg, Frost v Chief Constable of South YorkshirePolice [1999] 2 AC 455 at 469 per Lord Goff of Chieveley.

8. The concepts of care and carelessness themselves require closer definition.  The police officer in the case of Mrs Tame made a mistake.  In that sense, he was careless.  He made a slip; he noticed the error within a fairly short time, and corrected it.  His error was the consequence of a lack of care.  However, in the context of the law of negligence, carelessness involves a failure to conform to a legal obligation.  It does not necessarily involve a mistake.  It involves a failure to protect the interests of someone with whose interests a defendant ought to be concerned.  A definition of the ambit of a person's proper concern for others is necessary for a decision about whether a defendant's conduct amounts to actionable negligence.  The essential concept in the process of definition is reasonableness.  What is the extent of concern for the interests of others which it is reasonable to require as a matter of legal obligation, breach of which will sound in damages?

9. Lord Atkin, in Donoghue v Stevenson[5], spoke of the effect of acts or omissions on "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."  It is the reasonableness of a requirement that a defendant should have certain persons, and certain interests, in contemplation, that determines the existence of a duty of care.

   [5][1932] AC 562 at 580.

10. In the same case, Lord Macmillan said[6]:

    "The law takes no cognizance of carelessness in the abstract.  It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage.  In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence.  What, then, are the circumstances which give rise to this duty to take care?  In the daily contacts of social and business life human beings are thrown into, or place themselves in, an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in that relation to each other."

    [6][1932] AC 562 at 618-619.

11. Donoghue v Stevenson was what would now be called a product liability case.  By majority, the House of Lords held that it was reasonable to require the manufacturer of a product, intended for human consumption, without the possibility of any intermediate quality control, to have in contemplation the safety of consumers of the product.  To a modern lawyer that does not sound revolutionary, but it was the principle upon which the decision rested that represented a major legal development.

12. A necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed.  More than 150 years ago Pollock CB[7] said that a person "is not … expected to anticipate and guard against that which no reasonable man would expect to occur."  Foreseeability may be relevant to questions of the existence and scope of a duty of care, breach of duty, or remoteness of damage.  The present cases are concerned with the first topic.  The subject of foreseeability was discussed by this Court in Wyong Shire Council v Shirt[8], which was concerned with the second topic.  (The duty of care was conceded[9].)  Reference was there made to the rather tendentious description of the requirement of foreseeability as "undemanding"[10]; a description that may be more or less accurate depending upon the context.  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 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.

    [7]Greenland v Chaplin (1850) 5 Ex 243 at 248 [155 ER 104 at 106].

    [8](1980) 146 CLR 40.

    [9](1980) 146 CLR 40 at 42.

    [10](1980) 146 CLR 40 at 44.

13. In Jaensch v Coffey[11], Deane J emphasised that the concepts of reasonable foreseeability, and what he called "proximity of relationship", are related.  What a person is capable of foreseeing, what it is reasonable to require a person to have in contemplation, and what kinds of relationship attract a legal obligation to act with reasonable care for the interests of another, are related aspects of the one problem.  The concept of reasonable foreseeability of harm, and the nature of the relationship between the parties, are both relevant as criteria of responsibility.

    [11](1984) 155 CLR 549 at 579.

14. Requiring a person, when engaged in a certain kind of activity, to have in contemplation a certain kind of risk to others, may be extremely onerous, especially if predictability of harm were the only basis upon which such a requirement is imposed.  Consider, for example, an occupier of land on which there is a dwelling house.  It is clear that there is a duty of care to people who enter lawfully upon the land.  But the content of the duty is not such as to require the occupier to compile a list of every potential source of danger in and around the house, and post the list at every possible point of entry to the land.  People do not conduct their lives in that way, and it would not be reasonable to require them to do so.  When regard is had to forms of possible harm other than physical injury to person or property, the consequences of a general requirement to be concerned about the welfare of others can become even more extreme.  A case such as that of Mrs Tame explains the increasing awareness, both in the medical profession and in the community generally, of the emotional fragility of some people, and the incidence of clinical depression resulting from emotional disturbance.  What would be the consequence, for the way in which people conduct their lives, of imposing upon them a legal responsibility to have in contemplation, and guard against, emotional disturbance to others?  Considerations of that kind are not "floodgates arguments".  They go directly to the question of reasonableness, which is at the heart of the law of negligence.  Reasonableness is judged in the light of current community standards.  As Lord Macmillan said in Donoghue v Stevenson[12], "conception[s] of legal responsibility … adap[t] to … social conditions and standards."

    [12][1932] AC 562 at 619.

15. 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[13].  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.

    [13]Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 262 [13].

16. 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[14].  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[15] 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 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.

    [14]I say "perhaps the degree" to cover the issue raised by Murphy J in Jaensch v Coffey (1984) 155 CLR 549 at 557, which does not arise in these cases.

    [15](1984) 155 CLR 549 at 568.

17. In neither of the cases presented before the Court does the outcome turn upon the application of what are sometimes described as the "control mechanisms" of "sudden shock" and "direct perception or immediate aftermath".  In fact, to some extent both cases demonstrate that those concepts cannot serve as definitive tests of liability.  Mrs Tame's illness did not result from any "event" which itself, or in its aftermath, might have caused her a "shock".  It resulted from the communication to her by her solicitor of the information that, in the past, a police officer had made an error about her in an accident report, which was soon corrected.  In the case of Mr and Mrs Annetts, they reacted to distressing news of the disappearance, and death, of their son, such news being conveyed to them at a distance, and over a period of time.

18. I agree with Gummow and Kirby JJ that the common law of Australia should not, and does not, limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock, or to cases where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath.  It does not follow, however, that such factual considerations are never relevant to the question whether it is reasonable to require one person to have in contemplation injury of the kind that has been suffered by another and to take reasonable care to guard against such injury.  In particular, they may be relevant to the nature of the relationship between plaintiff and defendant, and to the making of a judgment as to whether the relationship is such as to import such a requirement.

19. I would respectfully adopt the observation of Brennan J in Jaensch v Coffey[16]:

    "In my opinion, the exigencies of proof of the elements of the cause of action impose the appropriate limits upon the scope of the remedy.  Those limits are likely to be at once more flexible and more stringent than limits imposed by legal rules which might be devised to give effect to a judicial policy of restraining the remedy within what are thought to be acceptable bounds."

    [16](1984) 155 CLR 549 at 571.

20. I turn now to the individual cases.  The detailed facts are set out by Gummow and Kirby JJ.  I will refer to them only as necessary to explain my reasons.

    Tame v The State of New South Wales

21. The alleged tortfeasor is Acting Sergeant Beardsley.  In February 1991, he completed a report concerning a motor traffic accident which took place in January 1991.  Mrs Tame was the driver of a car involved in a collision with a car driven by Mr Lavender.  The accident was clearly the fault of Mr Lavender.  Both drivers were subjected to blood testing.  Mr Lavender's blood alcohol level was 0.14.  Mrs Tame's was nil.  Mr Lavender was charged with an offence; and Mrs Tame later sued for, and obtained, damages for physical injury.  When Acting Sergeant Beardsley filled in the report form in February 1991, he erroneously attributed to both Mrs Tame and Mr Lavender a blood alcohol reading of 0.14.  (It would have been a surprising coincidence if they both had precisely the same level.)  He noted the mistake later in February or March 1991, and corrected it.  In the meantime, however, a copy in the uncorrected form had been obtained by an insurer.  Neither the police nor anybody else acted on the erroneous information.  The insurer admitted liability in June 1991.  During 1992, Mrs Tame heard of the mistake from her solicitor.  Mrs Tame became obsessed about the error.  She was also emotionally disturbed about other matters.  Ultimately, in 1995, her condition was diagnosed as psychotic depression. 

22. Mrs Tame had a history which predisposed her to such illness.  That history included mistreatment in early childhood, the recent loss of a parent and marital difficulties.  Recovery from the physical injuries she suffered in the accident was slow and frustrating.  Her husband attempted suicide in December 1992, and was subsequently treated for psychiatric illness. 

23. There are, in my view, two reasons why Acting Sergeant Beardsley was not under a duty of care 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[17].

    [17](2001) 75 ALJR 1570; 183 ALR 404.

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 course, 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 incident, 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[18].

    [18]See Sullivan v Moody (2001) 75 ALJR 1570 at 1580 [60]; 183 ALR 404 at 417.

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[19].  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 Sergeant Beardsley by reference to considerations many of which would be rendered irrelevant by the application of the law of negligence.

    [19]See Sullivan v Moody (2001) 75 ALJR 1570 at 1579-1580 [54]-[55]; 183 ALR 404 at 416.

29. In any event, the Court of Appeal was right to conclude that the psychiatric injury suffered by Mrs Tame, to which the error of Acting Sergeant Beardsley made a material contribution, was not reasonably foreseeable.  This conclusion does not depend upon the application, as an inflexible test of liability, of a standard of normal fortitude; but the particular susceptibility of Mrs Tame to psychiatric illness is a factor to be taken into account.  As was explained above, we are not concerned only, or even primarily, with scientific predictability.  If the requirement of foreseeability were truly and generally as undemanding as is sometimes claimed, then it might take Mrs Tame some distance to say that, this result having occurred, any psychiatrist would say that it would have been foreseen.  But that is not the question.  The question concerns the reasonableness of requiring Acting Sergeant Beardsley to have this possibility in contemplation when he completed the report.  He could not reasonably have been expected to foresee that his mistake carried a risk of harm to Mrs Tame of the kind that resulted.  It was not reasonable to require him to have her mental health in contemplation when he recorded the results of the blood tests.

30. The appeal should be dismissed with costs.

    Annetts v Australian Stations Pty Ltd

31. This case was decided in the Supreme Court of Western Australia on the trial of a separate issue, to be determined on the pleadings and certain admissions, as to whether the assumed facts were "sufficient, at law, to give rise to an independent … duty of care owed by [the respondent] to [the applicants] to exercise reasonable care and skill to avoid causing them psychiatric injury."  As Ipp J pointed out in the Full Court, there are some unsatisfactory features of the way in which the pleadings were framed, especially in relation to allegations concerning injury and foreseeability.

32. Two matters are critical to the resolution of the separate issue:  the relationship between the parties; and the reasonable foreseeability of the kind of injury that was suffered.  As was noted above, these matters are related.

33. As to the question whether the relationship between the parties was such as to make it reasonable to require that the respondent should have in contemplation the danger of psychiatric injury to the applicants, the Full Court sought the answer by reference to the rubrics of "sudden shock" and "direct perception".

34. The applicants' son, aged 16, had gone to work for the respondent as a jackaroo in August 1986.  Seven weeks later, allegedly contrary to assurances that had earlier been given to the applicants, he was sent to work alone as caretaker of a remote property.  In December 1986, he went missing in circumstances where it was clear that he was in grave danger.  When Mr Annetts was informed of this by the police, over the telephone, he collapsed.  There was a prolonged search for the boy, in which the applicants took some part.  His bloodstained hat was found in January 1987.  In April 1987 the body of the boy was found in the desert.  He had died of dehydration, exhaustion and hypothermia.  The applicants were informed by telephone.  Subsequently Mr Annetts was shown a photograph of the skeleton which he identified as that of his son.

35. Upon those facts, which left unclear a number of questions as to the aetiology of the psychiatric injury sustained by the applicants, the Full Court concluded that there was no satisfaction of the requirements of sudden shock or direct perception, even as relaxed in Jaensch v Coffey[20].  It may be observed, however, that the (assumed) facts of the case demonstrate the danger in treating what are often factual indicators of the presence or absence of proximity of relationship (to use Deane J's expression[21]) as inflexible and indispensable conditions of such a relationship.  Categorisation is a useful means of formulating legal principle, and of giving necessary guidance to trial courts, but sooner or later a case is bound to arise that will expose the dangers of inflexibility, especially in an area of the law which has reasonableness as its central concept.  Ultimately, reasonableness defies rigorous categorisation of its elements.

    [20](1984) 155 CLR 549.

    [21](1984) 155 CLR 549 at 583.

36. The process by which the applicants became aware of their son's disappearance, and then his death, was agonizingly protracted, rather than sudden.  And the death by exhaustion and starvation of someone lost in the desert is not an "event" or "phenomenon" likely to have many witnesses.  But a rigid distinction between psychiatric injury suffered by parents in those circumstances, and similar injury suffered by parents who see their son being run down by a motor car, is indefensible.

37. Here there was a relationship between the applicants and the respondent sufficient, in combination with reasonable foreseeability of harm, to give rise to a duty of care, though the applicants did not directly witness their son's death, and suffer a sudden shock in consequence.  The applicants, on the assumed facts, who themselves had responsibilities for the care of their son, only agreed to permit him to go to work for the respondent after having made inquiries of the respondent as to the arrangements that would be made for his safety and, in particular, after being assured that he would be under constant supervision.  Contrary to those assurances, he was sent to work, alone, in a remote location.  In those circumstances there was a relationship between the applicants and the respondent of such a nature that it was reasonable to require the respondent to have in contemplation the kind of injury to the applicants that they suffered.

38. As to the related question of reasonable foreseeability of that kind of injury, the Full Court, reversing the decision of Heenan J at first instance, found against the applicants.  Ipp J, with whom the other members of the Full Court agreed, referred to "normal fortitude", and said that while deep anxiety and grief were foreseeable, psychiatric injury was not.  It is to be noted, however, that there was nothing to suggest that the applicants were persons of peculiar susceptibility or vulnerability.  Unlike Mrs Tame, the applicants in this case had no background or history that predisposed them to the injury they suffered.  The Full Court was not justified in overruling the finding of Heenan J on this point.  No one would doubt the foreseeability of psychiatric injury to the applicants if they had seen their son being run over by a car, or trampled by a stock horse.  The circumstances of his disappearance and death were such that injury of that kind was more, rather than less, foreseeable.

39. Ipp J said: 

    "The essential question, however, is whether (to paraphrase Brennan J in Jaensch v Coffey[22]) the respondent should have foreseen that the breach of duty on its part might result in a sudden sensory perception on the part of the appellants of a phenomenon so distressing that a recognisable psychiatric illness would be caused thereby."

    [22](1984) 155 CLR 549 at 567.

40. Brennan J, in Jaensch v Coffey[23], was dealing with the concept of sudden shock that is often involved in psychiatric injury cases.  He went on to say that the categories of claimants are not closed[24].

    [23](1984) 155 CLR 549 at 567.

    [24](1984) 155 CLR 549 at 571.

41. The respondent's breach of duty consisted in failing properly to care for and supervise the applicants' son, by sending him to work alone, in a remote area.  He left his post, became lost in the desert, and died.  For reasons already mentioned, this may not have been likely to result in a sudden sensory perception of anything by the applicants.  But it was clearly likely to result in mental anguish of a kind that could give rise to a recognised psychiatric illness.

42. Special leave to appeal should be granted and the appeal allowed.  I agree with the orders proposed by Gummow and Kirby JJ.

43. GAUDRON J.   The facts of the first matter, being an appeal from the Court of Appeal of the Supreme Court of New South Wales, and the assumed facts of the second matter, being an application for special leave to appeal from a decision of the Full Court of the Supreme Court of Western Australia, are set out in other judgments.  I shall repeat them only to the extent necessary to make clear my reasons for concluding that, in the first matter, the appeal should be dismissed and, in the second, special leave to appeal should be granted and the appeal allowed.

44. The first question that arises in relation to these matters is whether, in either case, liability is to be denied by reason of one or other of three "rules" which have developed in relation to liability in negligence for pure psychiatric injury[25].  It may at once be stated that I agree with Gummow and Kirby JJ, for the reasons their Honours give, that damages are recoverable in negligence only for a recognisable psychiatric injury and not for emotional distress.

    [25]The expression "'pure' psychiatric or psychological injury" is intended to refer to a recognisable psychiatric illness which is neither caused by nor related to a physical injury sustained by the person concerned.

45. The three "rules" in issue may conveniently be described as the "sudden shock rule", the "normal fortitude rule" and the "direct perception rule".  Whatever purpose those "rules" might hitherto have served in the development of the law relating to pure psychiatric injury, they now serve to emphasise that, as with pure economic loss, something more than foreseeability of the likelihood of harm of the kind in issue is necessary before a defendant will be held to owe a duty of care to take reasonable steps to avoid a risk of that kind.

46. Strictly speaking, even in the case of injury to the person or property, the foreseeability of physical harm is not sufficient to impose an obligation on a person to take reasonable steps to avoid a risk of that harm.  Rather, a duty is only owed to those whom Lord Atkin famously described as "so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question"[26].  However, in the case of physical injury, the law has long recognised that those who are close enough in time and space to be at risk of injury from the actions of another are persons whom the latter should have in contemplation and, thus, are persons to whom a duty of care is owed.

    [26]Donoghue v Stevenson [1932] AC 562 at 580.

47. In the field of pure psychiatric injury, the "direct perception rule", as it was originally formulated, is explicable on the basis that it serves to identify persons who, because of their closeness in time and space, should be in the contemplation of the person whose acts or omissions are called into question as persons closely and directly affected and, thus, persons to whom a duty of care is owed.  So much is apparent from the seminal dissenting judgment of Evatt J in Chester v Waverley Corporation[27].

    [27](1939) 62 CLR 1.

48. In Chester, Evatt J identified those to whom a duty of care is owed in terms which reflect the "direct perception rule".  In his Honour's view, a person who owed a duty of care to take reasonable steps to avoid the risk of physical injury also owed a duty of care to those "already present at or in the immediate vicinity of the scene of the actual or apprehended casualty, and ... those who will also be brought to the scene for the purpose either of preventing the casualty altogether, or of minimizing its injurious consequences, or in the course of a search to discover and rescue or aid any person who is feared on reasonable grounds to have been injured in the casualty"[28].

    [28](1939) 62 CLR 1 at 44.

49. The class of persons to whom a duty of care is owed to avoid a foreseeable risk of psychiatric injury was extended in Jaensch v Coffey to persons in a "close and intimate" relationship[29] with another who has been negligently injured or killed and who, although not present at the scene of an accident, personally perceive its direct and immediate aftermath[30].  In that case, the plaintiff perceived the direct and immediate aftermath when she visited her injured husband in hospital.

    [29](1984) 155 CLR 549 at 555 per Gibbs CJ.

    [30](1984) 155 CLR 549 at 555 per Gibbs CJ. See also McLoughlin v O'Brian [1983] 1 AC 410 at 422 per Lord Wilberforce; Pham v Lawson (1997) 68 SASR 124; Mullany and Handford, Tort Liability for Psychiatric Damage, (1993) at 136-152.

50. Although in Jaensch v Coffey, extension of the categories to whom a duty is owed was expressed in terms requiring direct perception, that extension went beyond those who might be said to be close in time and space to those who, because of their relationship with the person killed or injured, ought to be in the contemplation of the person whose acts or omissions are in question as persons closely and directly affected by his or her acts.  Much of the reasoning in Jaensch v Coffey pointed to the illogicality of excluding claims by those in a close and personal relationship with the person killed or injured[31], but the actual decision serves to signify, in the words of Brennan J in that case, that "the categories of claimants [who suffer pure psychiatric injury] are not closed"[32].

    [31](1984) 155 CLR 549 at 552 per Gibbs CJ, 578 per Brennan J, 590-591 per Deane J.

    [32](1984) 155 CLR 549 at 571.

51. To treat those who directly perceive some distressing phenomenon or its aftermath and those identified in Jaensch v Coffey as the only persons who may recover for negligently caused psychiatric harm is, as Gummow and Kirby JJ point out, productive of anomalous and illogical consequences.  More fundamentally, it is to limit the categories of possible claimants other than in conformity with the principle recognised in Donoghue v Stevenson, namely, that a duty of care is owed to those who should be in the contemplation of the person whose acts or omissions are in question as persons closely and directly affected by his or her acts.  Accordingly, the "direct perception rule" is not and cannot be determinative of those who may claim in negligence for pure psychiatric injury.

52. To identify those who may claim for pure psychiatric injury as those who should be in the contemplation of the person whose acts or omissions are in question as persons closely and directly affected is not to say that the categories of persons who may recover damages for pure psychiatric injury are open-ended.  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.

53. Leaving aside cases of physical injury to persons or property, the law has not yet developed to the point where it is possible to identify precisely the relationships that serve to identify persons who should be in another's contemplation as persons closely and directly affected by his or her acts or the features of those relationships[33].  Unfortunately, the notion of "proximity" has not served as a unifying doctrine in this regard[34].  However, that is not to say that those relationships or their special features cannot be identified when new cases present themselves for decision.

    [33]So far as concerns pure economic loss, see Perre v Apand Pty Ltd (1999) 198 CLR 180 at 197-198 [26]-[30], 200-201 [34]-[38], 202 [41]-[42] per Gaudron J, 209-210 [74]-[75], 216-218 [93]-[99] per McHugh J, 254 [200] per Gummow J, 263 [231], 270 [248] per Kirby J, 304 [341], 305 [343], 306 [346]-[347], 307 [350] per Hayne J, 325-326 [404]-[406] per Callinan J.

    [34]See Perre v Apand Pty Ltd (1999) 198 CLR 180 at 193-194 [7]-[10] per Gleeson CJ, 197-198 [25]-[27] per Gaudron J, 208-212 [70]-[82] per McHugh J, 251 [191] per Gummow J, 268-270 [245]-[247], 273 [255], 275 [259], 277 [267], 283-286 [279]-[287], 288-289 [292]-[296] per Kirby J, 300-303 [330]-[335] per Hayne J, 318-319 [389], 321-322 [393], 323-324 [398]-[400], 326 [406] per Callinan J.

54. On the assumed facts of the second case, it is possible to identify special features of the relationship between Mr and Mrs Annetts and Australian Stations Pty Limited such that the latter should have had them in contemplation as persons closely and directly affected by its acts and omissions in relation to their son.  Mr and Mrs Annetts had entrusted the care of their son, who had not reached adulthood, to Australian Stations Pty Limited to work as a jackaroo in a remote part of Australia.  Moreover, they had expressly inquired of its servants and agents as to the arrangements to be made for his care and had made known their concern for his welfare.  The features of the relationship were, thus, such that the company should have had them in contemplation as persons who would be closely and directly affected in the event that their son was injured or killed in consequence of its negligent acts or omissions.  Accordingly, in my view, it is irrelevant to the question of the company's liability in negligence that neither Mr nor Mrs Annetts directly perceived any of the distressing events which must have befallen their son or their immediate aftermath.

55. On the other hand, it is possible to say of the first matter that there was no relationship between Mrs Tame and Acting Sergeant Beardsley, for whose acts the State of New South Wales is said to be vicariously liable, which could give rise to a duty of care to Mrs Tame.  There is no evidence that Acting Sergeant Beardsley either attended the scene of the accident in which Mrs Tame was involved or had any relevant dealings with her prior to his completing the accident report which incorrectly recorded against her name the blood alcohol reading of the other driver involved in the accident.

56. Doubtless, it was part of the general duties of Acting Sergeant Beardsley, as Traffic Sergeant, Windsor, to accurately record details of blood alcohol readings in relation to traffic accidents.  But that is not to say that he was under a duty of care to take reasonable steps to avoid a risk of psychiatric injury to Mrs Tame, assuming an injury of that kind to have been foreseeable.

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[35] 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.

    [35]See with respect to incompatible duties, Sullivan v Moody (2001) 75 ALJR 1570; 183 ALR 404.

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 to 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"[36].  And as in Sullivan v Moody, "[t]o apply the law of negligence in the present case would resolve that competition on an altogether different basis"[37].  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.

    [36](2001) 75 ALJR 1570 at 1579 [54] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ; 183 ALR 404 at 416.

    [37](2001) 75 ALJR 1570 at 1579 [54] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ; 183 ALR 404 at 416.

59. Although, in my view, it is not necessary to consider the question of foreseeability in relation to the first matter, it is necessary to do so in the second.  It is in the context of foreseeability that the "sudden shock" and "normal fortitude" rules fall for consideration.  When the law limited claimants to those who, by reason of their closeness in time or space, directly perceived distressing phenomena or their aftermath, as was implicit in the categories of persons identified by Evatt J in Chester[38], it was inevitable that the law should select sudden shock as that which rendered foreseeable the risk of psychiatric injury.  So, too, because "reasonable foreseeability is an objective criterion of duty"[39], it is understandable that the law selected "a normal person of ordinary firmness and mental stability"[40] as a general test of foreseeability of the risk of psychiatric injury in the case of those who directly perceived distressing events or their aftermath.

    [38](1939) 62 CLR 1 at 44.

    [39]Jaensch v Coffey (1984) 155 CLR 549 at 568 per Brennan J.

    [40]Chester v Waverley Corporation (1939) 62 CLR 1 at 28 per Evatt J.

60. In Jaensch v Coffey, Brennan J pointed out that the "normal fortitude rule" was not a universal rule determinative of foreseeability but that, where the question is whether it is foreseeable that members of the general public might suffer psychological or psychiatric injury, the answer "must generally depend on a normal standard of susceptibility"[41].  His Honour expressly acknowledged that the "normal fortitude rule" does not apply when "a plaintiff's extraordinary susceptibility to psychiatric illness ... is known to the defendant"[42].  Further, his Honour allowed a qualification to the rule in the case of persons for whom the phenomenon in question has special significance.  Thus, in his Honour's view:

    "if it is reasonably foreseeable that the phenomenon might be perceived by a person or class of persons for whom it has a special significance – for example, the parent of a child injured in a road accident who comes upon the scene – the question whether it is reasonably foreseeable that the perception of the phenomenon by that person or a member of that class might induce a psychiatric illness must be decided in the light of the heightened susceptibility which the special significance of the phenomenon would be expected to produce."[43]

    [41](1984) 155 CLR 549 at 568. See also Bourhill v Young [1943] AC 92 at 109-110 per Lord Wright; Bunyan v Jordan (1937) 57 CLR 1; Mullany and Handford, Tort Liability for Psychiatric Damage, (1993) at 224-226.

    [42]Jaensch v Coffey (1984) 155 CLR 549 at 568 per Brennan J.

    [43](1984) 155 CLR 549 at 568-569.

61. The observations of Brennan J in Jaensch v Coffey deny that "normal fortitude" is or could be the sole criterion of foreseeability of the risk of psychiatric injury.  That it is not and cannot be the sole criterion is even more readily apparent once it is accepted, as it must be, that there may be special relationships or special features of relationships, including knowledge of the particular susceptibility of the plaintiff, that render the risk of psychiatric injury to the plaintiff foreseeable, even though it would not be foreseeable in the case of other persons.

62. 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.

63. At this point it is convenient to note that there is nothing to indicate knowledge by Acting Sergeant Beardsley of particular susceptibility or particular sensitivity on the part of Mrs Tame.  Thus, in the first case, were it necessary to determine foreseeability, that question would fall for determination by reference to a person of normal fortitude.  And although I need not decide that question, it is convenient to record that I agree with Gummow and Kirby JJ, for the reasons their Honours give, that it was not reasonably foreseeable that a person in the position of Mrs Tame would suffer a recognisable psychiatric injury as a result of the inaccurate recording of her blood alcohol level in a traffic accident report.

64. Conversely, on the assumed facts of the second matter, it was readily foreseeable that persons of normal fortitude in the position of Mr and Mrs Annetts might suffer a recognisable psychiatric injury if their son came to harm as a result of the negligence of the company to whom they had entrusted his care.

65. Once it is accepted that, on the assumed facts, Mr and Mrs Annetts were persons whom Australian Stations Pty Limited should have had in contemplation as persons who would be closely and directly affected if, through its negligence, harm should befall their son and that it was readily foreseeable that, in that event, persons of normal fortitude in their position might suffer a recognisable psychiatric injury, there is no principled reason why liability should be denied because, instead of experiencing sudden shock, they suffered psychiatric injury as a result of uncertainty and anxiety culminating in the news of their son's death.

66. "Sudden shock" may be a convenient description of the impact of distressing events which, or the aftermath of which, are directly perceived or experienced.  And it may be that, in many cases, the risk of psychological or psychiatric injury will not be foreseeable in the absence of a sudden shock.  However, no aspect of the law of negligence renders "sudden shock" critical either to the existence of a duty of care or to the foreseeability of a risk of psychiatric injury.  So much should now be acknowledged.

67. Orders should be made in each case as proposed by Gummow and Kirby JJ.

    McHUGH J.

    CLARE JANET TAME v THE STATE OF NEW SOUTH WALES

68. In this appeal, the appellant argues that this Court should alter the principles and rules that determine when the common law will compensate a person who has suffered nervous shock as the result of the conduct of another person.

69. Mrs Clare Janet Tame appeals against an order of the Court of Appeal of New South Wales setting aside a judgment for damages for nervous shock that she had obtained in the District Court of that State.  Constable John Morgan and the State of New South Wales were the defendants in the action.  The District Court held that Mrs Tame had suffered nervous shock after being told that a police accident report contained an entry that falsely asserted that she had had a blood alcohol reading of 0.14 at the time of an accident.  The District Court also held that the police officer making the entry ought to have reasonably foreseen that Mrs Tame might suffer nervous shock on learning of the false entry and that he was guilty of negligence.  The Court of Appeal (Spigelman CJ, Mason P and Handley JA) set aside the judgment upon the ground that a person of "normal fortitude" would not suffer nervous shock on learning of the false entry and therefore it was not reasonably foreseeable that Mrs Tame would suffer nervous shock.  Mason P further held that, absent a pre-existing relationship, an action for nervous shock could only succeed if the plaintiff had suffered a "sudden shock" and that Mrs Tame had not suffered a sudden shock.

    The issues

70. The written submissions filed on behalf of Mrs Tame identified no less than 14 issues in the appeal, one of which was divided into three sub-issues.  In contrast, the respondents identified only five issues, and an additional issue if the Court permitted them to amend their Notice of Contention.  It is inherently unlikely that any personal-injuries action would give rise to 14 issues or that any intermediate appellate court in this country would make so many errors.  Australian, as well as United States, counsel would be well advised to heed Judge Aldisert's statement that when he sees "an appellant's brief containing seven to ten points or more, a presumption arises that there is no merit to any of them"[44].  In my opinion, only three issues arise in the appeal:

    (1)Upon the above statement of the case, was the police officer making the entry under a duty to take reasonable care to protect Mrs Tame from nervous shock?

    (2)In a "nervous shock" action, is the reasonable foresight of the defendant confined to the reaction of a person of normal mental fortitude?

    (3)In a "nervous shock" action, must the plaintiff prove that he or she suffered a "sudden shock"?

    [44]Aldisert, Opinion Writing, (1990) at 89.

71. In my opinion, the Court of Appeal did not err in upholding the present respondent's appeal to that Court.  Absent a pre-existing relationship or knowledge of a plaintiff's susceptibility to suffering nervous shock, a defendant owes a duty of care to the plaintiff in a "pure" nervous shock action only when:

    .the defendant ought reasonably to have had the plaintiff or persons in his or her position in mind when contemplating acting or failing to act;

    .the defendant's conduct would have caused a person of normal fortitude to suffer nervous shock; and

    .the defendant ought to have reasonably foreseen that his or her act or omission might cause nervous shock to a person of normal mental fortitude.

72. For the purposes of this appeal, it is not necessary to decide whether the plaintiff in a nervous shock action must also prove that he or she suffered a "sudden shock".

    Proper parties

73. Although Constable Morgan and the State of New South Wales were parties to the proceedings in the lower courts, the parties now agree that Constable Morgan's name should be removed from the record.  He was not the officer who made the false entry.  The orders Mrs Tame seeks from this Court are against the State of New South Wales.

    The material facts

74. In January 1991, Mrs Tame was involved in a motor vehicle accident.  She was taken to hospital for treatment where police took a blood sample for the purpose of a blood alcohol reading.  The sample confirmed that she had not been drinking.  The other driver had a blood alcohol reading of 0.14.  There is not and never has been any doubt that the other driver was solely responsible for the accident.

75. Subsequently, Constable Morgan visited Mrs Tame at her home where he took particulars of the accident and her injuries.  On a second visit, he helped her complete a claim form under the Motor Accidents Act 1988 (NSW). During the second visit, Constable Morgan informed Mrs Tame that the other driver was responsible for the accident and that he would be charged with a number of offences, including drink driving. In February 1991, Mrs Tame submitted the claim form to the other driver's insurer.

76. Because the other vehicle was uninsured, Mrs Tame's solicitor, Mr Weller, commenced proceedings against the Nominal Defendant.  NZI Insurance ("NZI") handled the claim for the Nominal Defendant.  In June 1991, NZI admitted liability.  In August 1994, the claim was settled.

77. Before it was settled, a dispute arose between Mrs Tame and NZI concerning the payment of treatment for physiotherapy.  As a result, Mrs Tame suffered a great deal of stress.  In April 1992, she was referred for crisis counselling.  She raised her concerns about the non-payment by NZI with her solicitor who telephoned NZI's solicitors to inquire about the matter.

    An error in the police report

78. Some time before 18 June 1992, NZI told Mr Weller that the Police Accident Report (P4) showed that at the time of the accident Mrs Tame had a blood alcohol reading of 0.14.  After receiving this information, Mr Weller asked Mrs Tame whether she had been drinking on the day of the accident.  She told him that the report was wrong.  She said that she had hardly touched alcohol in the previous 20 years.  She said she was upset and was worried that people would find out about the entry and that it would tarnish her good name.

79. Immediately after the conversation with Mr Weller, Mrs Tame rang Constable Morgan who told her that a mistake had been made and that her blood alcohol reading was nil.  Mrs Tame reported this conversation back to Mr Weller.

80. After learning of the false entry, Mrs Tame assumed that NZI was not meeting her physiotherapy costs because of that entry.  However, NZI had not paid the physiotherapy accounts because it believed that the treatment was unnecessary.  On 29 July 1992, NZI's solicitors confirmed that liability for the accident was admitted and that NZI would continue to meet all reasonable expenses arising from the accident.

81. In early 1993, Mr Weller sought and received from the New South Wales Police Service a formal assurance that the error in the P4 report had been corrected.  The Service also apologised to Mrs Tame for making the false entry.

82. The correction and apology did not overcome Mrs Tame's concerns.  She worried about other people seeing the incorrect P4 report, what they might be thinking about her and whether they thought that she caused the accident because she was intoxicated.  She became obsessed with the mistake and feared that such an error could re-occur.  Irrationally, she believed that she was being punished for some past misconduct.  This brought on feelings of guilt.  For a period of two to three years, she constantly referred to the mistake when speaking with her friends and family.  Her obsession with the false entry affected her sleeping habits.  The stress led to depression.  Although she undertook counselling, matters "seemed to get worse, out of proportion".

83. Police officers use P4 reports to record the details of accidents, including the particulars of the drivers involved.  Because Constable Morgan did not have the results of the blood samples when he compiled the P4 report, he left blank the sections of the report that related to them.  A month after the accident, an Acting Sergeant Beardsley purported to enter the sample results, but his entry erroneously stated that Mrs Tame had a blood sample result of 0.14.  In fact, her blood-testing certificate showed that she had no alcohol in her blood.  By late March 1991, he had discovered the error and corrected the original report.  However, on 15 April 1991, NZI received an uncorrected copy of the P4 report showing Mrs Tame as having a blood alcohol reading of 0.14.

    Proceedings in the District Court

84. Subsequently, Mrs Tame commenced proceedings against Constable Morgan and the State of New South Wales as joint defendants. Mrs Tame joined the State as a party on the ground that, under s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW), it was vicariously liable for the negligent conduct of a police officer.

85. The trial judge, Garling DCJ, held that, as a result of the mistake in the P4 report, Mrs Tame had suffered a psychotic depressive illness and a post-traumatic stress disorder.  His Honour found that Constable Morgan and Acting Sergeant Beardsley were aware of the need for accuracy in the P4 report because insurance companies and solicitors as well as the people involved in the accident relied on P4 reports.  The trial judge found that Acting Sergeant Beardsley knew or should have known that an incorrect entry of Mrs Tame's blood alcohol reading could cause damage to her and that he was careless in the way he filled out the P4 report.  His Honour held that it was reasonably foreseeable that:

    "a person of good character who was careful not to drink and drive, who had a vulnerable personality, may suffer a psychological injury by being told that the form recorded that she had a high blood alcohol reading and further, that that information had gone to other people and that such a reaction to this careless act could have been foreseen by the officer at or about the time he was filling in this form". (emphasis added)

86. His Honour held that it was within the knowledge of the community and specifically police officers that psychiatric injury could arise from the making of an error of the kind that occurred in this case.

    Acting Sergeant Beardsley did not owe a duty of care to Mrs Tame

87. The Court of Appeal correctly held that Australian case law holds that the principles governing claims for the negligent infliction of pure psychiatric injury (nervous shock) are different from those governing claims for physical injury.  The Court of Appeal held that, in nervous shock cases, unless the defendant knows that a plaintiff is peculiarly susceptible to psychiatric damage, the defendant is entitled to assume that the plaintiff is a person of normal fortitude.  Counsel for Mrs Tame challenged the authority of the cases that support that proposition.  He asserted that it is inherently difficult and probably impossible to determine what is a "normal standard of susceptibility".  Counsel for Mrs Tame also challenged the conventional view that the common law treats negligent infliction of pure psychiatric injury differently from the way that it treats the negligent infliction of physical injury.  In my opinion, these challenges to conventional doctrine should be rejected.

88. The common law of negligence has three elements – a duty of care owed to the plaintiff, a breach of that duty and a causal connection between the damage sustained and the breach of duty.  Furthermore, the damage must not be too remote from the breach.

89. Central to the elements of breach of duty and remoteness is the concept of reasonable foreseeability.  In the absence of a pre-existing duty of care owed by the defendant to the plaintiff, the concept of reasonable foreseeability also plays a vital role in determining whether the defendant owed a duty of care to the plaintiff.  Because Acting Sergeant Beardsley had no pre-existing relationship with Mrs Tame, the issue of reasonable foreseeability is central to the issue of duty in this appeal.

90. Although it is usually convenient to discuss negligence law in terms of its three elements, "each element can be defined only in terms of the others"[45].  In the law of nervous shock, the duty requirement has been conditioned by the nature of the damage that the plaintiff has suffered.  In a well-known passage in King v Phillips[46], Denning LJ said "the test of liability for shock is foreseeability of injury by shock".  But the common law adds two conditions to this statement concerning foreseeability.  First, the shock must be reasonably foreseeable by a person in the defendant's position.  Second, the reasonable foresight of the defendant is evaluated by reference to the effect that the defendant's conduct would have on a person of normal fortitude.  In Bunyan v Jordan[47], where the Supreme Court of New South Wales rejected a claim for nervous shock, Jordan CJ said that the standard of the reasonable and prudent man determined the existence of the duty of care as well as the standard of care that the duty calls into existence.  His Honour went on to say that, in the absence of special circumstances, proof of duty in a nervous shock case required a finding that the act complained of was "one reasonably likely to cause injurious terror or shock to an ordinary normal human being".  Special circumstances would include "knowledge of the presence of specially susceptible persons whom a reasonable man would take care not to startle".  On appeal, a majority of this Court affirmed the decision[48].

    [45]John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 241-242 per Brennan J cited in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487 per Brennan J.

    [46][1953] 1 QB 429 at 441. The Judicial Committee endorsed this statement of the law in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388 at 426.

    [47](1936) 36 SR (NSW) 350 at 355.

    [48]See Bunyan v Jordan (1937) 57 CLR 1 at 14 per Latham CJ, 16-17 per Dixon J, 18 per McTiernan J.

91. Subsequently, a number of the Justices in Jaensch v Coffey[49], expressly or impliedly, approved the principle that, in determining the question of reasonable foreseeability, the court looks to a person of normal fortitude.  Brennan J said[50]:

    "Unless a plaintiff's extraordinary susceptibility to psychiatric illness induced by shock is known to the defendant, the existence of a duty of care owed to the plaintiff is to be determined upon the assumption that he is of a normal standard of susceptibility."

    [49](1984) 155 CLR 549 at 556 per Gibbs CJ, 557 per Murphy J referring to a "'normal' person", 610 per Deane J referring to the fact that Mrs Coffey's life and dependence on her husband were not such as to make her not a "person of normal fortitude".

    [50](1984) 155 CLR 549 at 568.

92. Until recently, the law of England also tested reasonable foreseeability in nervous shock cases by the effect that the defendant's conduct would have on persons of normal fortitude.  In Bourhill v Young[51], Lord Wright said, "whether there is duty owing to members of the public who come within the ambit of the act, must generally depend on a normal standard of susceptibility".  In the same case, Lord Porter said[52] that a driver was entitled to assume that the ordinary road user has "sufficient fortitude to endure such incidents as may from time to time be expected to occur".  He also referred to a person in the position of the plaintiff as taken to possess the "customary phlegm".

    [51][1943] AC 92 at 110.

    [52][1943] AC 92 at 117.

93. Lord Bridge of Harwich cited these statements of Lord Porter with approval in McLoughlin v O'Brian[53].  In the same case, Lord Wilberforce referred to the ordinary bystander being assumed to possess normal fortitude[54].  In Page v Smith[55], however, a majority of the House of Lords drew a distinction between primary and secondary sufferers of nervous shock.  Lords Ackner, Browne-Wilkinson and Lloyd of Berwick held that, where the defendant was under a duty to avoid personal injury to the plaintiff, the plaintiff did not have to prove that the defendant should have reasonably foreseen that a person of normal fortitude might suffer nervous shock.  But the distinction between primary and secondary victims is not one that the Australian common law has recognised.  Whether it will survive in England is doubtful.  Recently, in W v Essex County Council[56] members of the House of Lords questioned the validity of the distinction.  Earlier, in White v Chief Constable of South Yorkshire Police[57], Lord Griffiths and Lord Goff of Chieveley noted that Page v Smith[58] had changed the common law of England.  They accepted that before that case the foresight of the defendant in a nervous shock action was conditioned by the assumption that the plaintiff was a person of reasonable fortitude.

    [53][1983] 1 AC 410 at 436.

    [54][1983] 1 AC 410 at 422.

    [55][1996] AC 155 at 170 per Lord Ackner, 182 per Lord Browne-Wilkinson, 190 per Lord Lloyd of Berwick.

    [56][2001] 2 AC 592 at 600-601 per Lord Slynn of Hadley, Lords Steyn, Hope of Craighead, Hobhouse of Woodborough and Millett agreeing.

    [57][1999] 2 AC 455 at 463 per Lord Griffiths, 473 per Lord Goff of Chieveley.

    [58][1996] AC 155.

94. Counsel for Mrs Tame criticised the use of the normal fortitude test.  Although he did not say so, his argument regarded it as a category of indeterminate reference that courts use as a means of confining liability for nervous shock.  Eminent judges have questioned the usefulness of the normal fortitude test.  In Mount Isa Mines Ltd v Pusey[59], Windeyer J expressed reservations about its validity as a criterion of liability.  His Honour said "[t]he idea of a man of normal emotional fibre, as distinct from a man sensitive, susceptible and more easily disturbed emotionally and mentally, is I think imprecise and scientifically inexact".  In support of this view, Windeyer J cited a statement of Waller J in Chadwick v British Railways Board[60] where his Lordship said:

    "The community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress to be regarded as extraordinary.  There is an infinite variety of creatures, all with varying susceptibilities."

    [59](1970) 125 CLR 383 at 405-406.

    [60][1967] 1 WLR 912 at 922; [1967] 2 All ER 945 at 952.

95. The evidence in the present case demonstrated that some members of the community are much more vulnerable to psychiatric illness than others.  But the existence of such people is not itself a valid ground for rejecting the normal fortitude test.  As Lord Wright pointed out in Bourhill[61], "[a] blind or deaf man who crosses the traffic on a busy street cannot complain if he is run over by a careful driver who does not know of and could not be expected to observe and guard against the man's infirmity".  The common law judges the conduct of a defendant by its effect on people of ordinary health and susceptibility unless the defendant is aware of an abnormal weakness or susceptibility of the plaintiff.  Similarly, the standard for evaluating the reasonableness of the defendant's conduct is an objective standard.  The skills, standards and experience of drivers, employers and professional persons vary enormously.  Yet every day, tribunals of fact, applying the common law, hold defendants liable or not liable by reference to what an ordinary-reasonable driver, employer or professional person would have done in the same circumstances as the defendant encountered.  Absent special knowledge, a defendant is only liable for what an ordinary person in his or her position ought to reasonably foresee.

    [61][1943] AC 92 at 109.

    Foreseeability of damage

96. Under the current law, the test of reasonable foreseeability of damage occurring is an undemanding one[62].  In Wyong Shire Council v Shirt[63], Mason J said:

    "[A] risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk.  A risk which is not far-fetched or fanciful is real and therefore foreseeable."

    [62]Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641 per Glass JA.

    [63](1980) 146 CLR 40 at 48 (Stephen and Aickin JJ agreeing); see also at 53 per Wilson J.

97. But the test of reasonable foreseeability was not always so undemanding.  Nor was the content of reasonable care anywhere near as high as it has become in recent years[64].  Until comparatively recently, courts tended to ask whether the defendant had created an unreasonable risk of harm to others that he or she knew or ought to have recognised.  A risk was regarded as unreasonable and one to be prevented only if reasonable members of the community would think it sufficiently great to require preventative action.  In each case, foreseeability of risk and preventability of harm were defined and applied by reference to each other.  Writing in 1957, Professor Fleming said[65]:

    "What are the considerations upon which the law supposes the reasonable man will guide his conduct?  Negligence … consists in conduct involving an unreasonable risk of harm.  Almost any activity is fraught with some degree of danger to others but, if the existence of a remote possibility of harm were sufficient to attract the quality of negligence, most human action would be inhibited.  Inevitably, therefore, a person is only required to guard against those risks which society recognizes as sufficiently great to demand precaution.  The risk must be unreasonable, before he can be expected to subordinate his own ends to the interests of other."

    [64]This has been particularly so in actions by employees against employers:  cf Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337; Rae v The Broken Hill Pty Co Ltd (1957) 97 CLR 419; Commissioner for Railways (NSW) v O'Brien (1958) 100 CLR 211; O'Connor v Commissioner for Government Transport (1954) 100 CLR 225; Skinner & Johns & Waygood Ltd v Barac (1961) 35 ALJR 124 with Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301.

    [65]The Law of Torts, (1957) at 131-132.

98. Many of the problems that now beset negligence law and extend the liability of defendants to unreal levels stem from weakening the test of reasonable foreseeability.  But courts have exacerbated the impact of this weakening of the foreseeability standard by treating foreseeability and preventability as independent elements.  Courts tend to ask whether the risk of damage was reasonably foreseeable and, if so, whether it was reasonably preventable.  Breaking breach of duty into elements that are independent of each other has expanded the reach of negligence law.

99. Given the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty.  And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question.  This is especially so since Lord Reid said that a reasonable person would only neglect a very small risk of injury if there was "some valid reason" for disregarding it[66], a proposition that effectively puts the onus on the defendant to show why the risk could not have been avoided.  Once these two questions are answered favourably to the plaintiff, there is a slide – virtually automatic – into a finding of negligence.  Sometimes[67], courts do not even ask the decisive question in a negligence case:  did the defendant's failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff?  They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence.  As Mason J pointed out in Shirt[68] in a passage that is too often overlooked:

    "The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." (emphasis added)

    [66]Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty [1967] 1 AC 617 at 642.

    [67]See, for example, Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 871-872 [25]-[26] per McHugh J; 179 ALR 321 at 326-327.

    [68](1980) 146 CLR 40 at 47-48.

100. The problems that now beset negligence law began with the Judicial Committee's Advice in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty ("The Wagon Mound (No 2)")[69].At first instance, Walsh J found[70] that, if the officers of the defendant "had given attention to the risk of fire from the spillage, they would have regarded it as a possibility, but one which could become an actuality only in very exceptional circumstances".  Based on this finding, Walsh J held that the risk of fire was not reasonably foreseeable.  But Lord Reid, giving the Advice of the Board, emphatically rejected the conclusion that Walsh J had derived from his finding of preliminary fact.  Lord Reid recognised that the case law left open whether "if a real risk can properly be described as remote it must then be held to be not reasonably foreseeable"[71].   But he rejected that proposition as too narrow.  Instead, his Lordship said[72]:

     "If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant's servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense."

     [69][1967] 1 AC 617.

     [70]Miller Steamship Co Pty Ltd v Overseas Tankship (UK) Ltd [1963] SR (NSW) 948 at 977.

     [71][1967] 1 AC 617 at 643.

     [72][1967] 1 AC 617 at 643-644.

101. Applied to the facts of The Wagon Mound (No 2) – a case concerned with the risk of furnace oil being ignited by welding sparks – this statement seems reasonable.  But later judges have read it, as their Lordships probably intended it to be read, as laying down a universal proposition.  It was read that way by a majority of this Court in Shirt. But in the light of 35 years experience, the decision in The Wagon Mound (No 2) and the above passage in particular appear to me to have been an unfortunate development in the law of negligence.  I think that the time has come when this Court should retrace its steps so that the law of negligence accords with what people really do, or can be expected to do, in real life situations.  Negligence law will fall – perhaps it already has fallen – into public disrepute if it produces results that ordinary members of the public regard as unreasonable.  Lord Reid himself once said[73] "[t]he common law ought never to produce a wholly unreasonable result".  And probably only some plaintiffs and their lawyers would now assert that the law of negligence in its present state does not produce unreasonable results.

     [73]Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 772.

102. So far as possible, the issue of reasonable foreseeability of risk in breach of duty situations should no longer be determined in isolation from the issue of reasonable preventability and the ultimate issue of what reasonable care requires.  Indeed at the breach stage, it is better to avoid the question of reasonable foreseeability.  Instead, courts should see their task as that of deciding whether the defendant knew or ought to have recognised that he or she had created an unreasonable risk of harm to others.  Whether the creation of the risk was unreasonable must depend on whether reasonable members of the community in the defendant's position would think the risk sufficiently great to require preventative action.  This is a matter for judgment after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge.

103. In dealing with the duty issue, however, it is often necessary to consider the issue of reasonable foresight as a separate issue.  In the duty situation, the issue is whether the law imposes or ought to impose an obligation on the defendant to avoid conduct that exposes persons in the position of the plaintiff to unreasonable risks of harm.  Absent a pre-existing relationship or circumstances that automatically give rise to a duty – such as lawful entry onto land – reasonable foreseeability of harm to others is a necessary condition of duty.  In some areas of law – negligently inflicted economic loss cases, for example – reasonable foreseeability of harm to others is a necessary but not a sufficient condition of duty.

347. On the application of the respondent the Supreme Court of Western Australia ordered that a preliminary issue be decided:  in substance, assuming the facts set out above, did the respondent owe the applicants a duty of care?  The question was tried and answered adversely to Mr and Mrs Annetts by Heenan J.

348. Heenan J accepted that the possibility of psychiatric injury to the applicants was foreseeable but said that by reason of "a combination of principle, policy and common sense" the courts had applied concepts of "proximity" and an "aftermath" test to decide an issue of the kind that arose here[361].  Neither of the applicants was entitled to recover damages because, his Honour said, "they were separated in time as well as in space from the distressing events" and their only knowledge of the death of James was gained by "communication by telephone"[362].  His Honour concluded by saying[363]: 

     "But [the applicants'] involvement in and perception of the events which led to their son's death were remote.  In my opinion, they were not sufficiently close to give rise to a duty of care owed to the [applicants] by the [respondent]."

     [361](2000) Aust Torts Reports ¶81-564 at 63,803.

     [362](2000) Aust Torts Reports ¶81-564 at 63,810.

     [363](2000) Aust Torts Reports ¶81-564 at 63,810-63,811.

     The appeal to the Full Court of Western Australia

349. In the Full Court[364], Ipp J, who gave the principal judgment (with which Malcolm CJ and Pidgeon J agreed) took a different view of foreseeability of psychiatric injury by the respondent from Heenan J who had adopted some observations of Lord Oliver of Aylmerton in Alcock v Chief Constable of South Yorkshire Police[365]:

     "The traumatic effect on, for instance, a mother on the death of her child is as readily foreseeable in a case where the circumstances are described to her by an eye witness at the inquest as it is in a case where she learns of it at a hospital immediately after the event.  Nor can it be the mere suddenness or unexpectedness of the event, for the news brought by a policeman hours after the event may be as sudden and unexpected to the recipient as the occurrence of the event is to the spectator present at the scene."

     [364](2000) 23 WAR 35.

     [365][1992] 1 AC 310 at 411.

350. Even assuming however, contrary to his own opinion, that psychiatric injury was foreseeable, his Honour was of the view that another necessary element, "of harm caused by a sudden shock to the senses" was absent.  As to that, Ipp J said[366]:

     "After 6 December 1986, the [applicants] must gradually have come to realise that, in the harsh, desert-like area where James was missing, the probabilities were that he would have died.  As the weeks and months went by, those probabilities must have strengthened.  In the circumstances, the final confirmation of James' death that the [applicants] received at the end of April 1987, when Mr Annetts identified the remains from the photograph, cannot be regarded as a sudden sensory perception of a distressing phenomenon."

     [366](2000) 23 WAR 35 at 56.

351. Ipp J dealt separately with proximity, beginning with a reference to the speech of Lord Goff of Chieveley in White v Chief Constable of South Yorkshire Police[367] to the effect that the plaintiff must, in a case of psychiatric injury, establish three matters:  "(1) a close tie of love and affection to the immediate victim; (2) closeness in time and space to the incident or its aftermath; and (3) perception by sight or hearing, or its equivalent, of the event or its aftermath."  Proximity, in the opinion of Ipp J, was still a necessary element in cases of tort, especially of a tort alleged to have caused psychiatric injury.  After copious reference to Jaensch v Coffey[368] in this Court, and other domestic and international authority, his Honour concluded on this issue as follows[369]:

     "On the basis of the material to which I have referred, the overwhelming weight of authority is to the effect that the [applicants] are required to show that they were in a relationship of proximity to the respondent as explained by Deane J in Jaensch v Coffey.  This approach satisfies the policy considerations that I earlier identified, allows the law in this area to proceed casuistically, and enables the legal position to be established without undue uncertainty.  I propose to follow it."

     [367][1999] 2 AC 455 at 472.

     [368](1984) 155 CLR 549.

     [369](2000) 23 WAR 35 at 60.

352. The next matter with which his Honour dealt was the need for direct perception.  This, Ipp J said, was a settled requirement of the law of England and of Canada at an intermediate appellate level[370], although the Australian position remained uncertain.  However, there were dicta, of Windeyer J in Mount Isa Mines Ltd v Pusey[371] and Brennan J in Jaensch[372], which required, on balance, that there be direct perception of a relevant shocking event.  This led his Honour to say[373]:

     "On the basis of the direct perception requirement, the [applicants] have not established the requisite degree of proximity under either of the scenarios I have postulated.  Apart from the occasion (in January 1987) when Mr Annetts saw a blood covered hat belonging to James, and when he identified James' remains (from a photograph seen some five months after his death), they did not directly perceive the consequences of the respondent's breach of duty.  I do not consider the two instances I have mentioned as satisfying the requirement."

     [370]There is an aspect of proximity, however, that requires additional elaboration, namely, the question whether a plaintiff has directly to perceive the phenomenon or its aftermath, or whether it is sufficient if the plaintiff is informed of the consequences of the phenomenon.

     [371](1970) 125 CLR 383 at 407.

     [372](1984) 155 CLR 549 at 567.

     [373](2000) 23 WAR 35 at 61.

353. Ipp J did however go on to discuss the position on the basis that direct perception of the "phenomenon" was not an absolute requirement.  His Honour said[374]:

     "But the telephone call [on 6 December 1986] involved merely a statement by the police officer that James had run away and was missing.  On the admitted and assumed facts, nothing was said as to when he had run away and for how long he had been missing.  Nothing was said about his condition.  No facts were given that made the situation particularly horrifying.  I realise that some of these matters concern the requirement of sudden shock, but they also bear on causal proximity.  I would add that nothing in the admitted and assumed facts indicates that there were other circumstances, bearing upon the information conveyed by the telephone call, that were capable of reinforcing the element of causal proximity.  Importantly, the [applicants] were not present to perceive the actual circumstances under which James was missing.  The [applicants] were far away from the relevant events.  There was a complete absence of geographic proximity."

     [374](2000) 23 WAR 35 at 62.

354. Ipp J also thought it desirable to deal with a submission that the applicants had relied on the respondent.  His Honour said[375]:

     "I think it desirable that I should comment on the 'reliance' placed by the [applicants] on the respondent to 'supervise' James, and the respondent's knowledge that the [applicants] would suffer 'particular distress' should it fail properly to do so, and thereby cause James to die in the desert.  I accept that these facts assist the [applicants] to some relatively minor degree in establishing the requisite proximity, but I do not regard them as being otherwise of particular significance.  On the admitted and assumed facts, the [applicants] did not alter their position or take or refrain from taking steps because of their reliance on the respondent.  There was no contractual or other relationship known to the law between the respondent and the [applicants].  The reliance so placed by the [applicants] on the respondent was not akin to that placed by parents, say, on a nurse whom they employ to care for their child, where a direct relationship arises.  The reliance was similar to that placed by all caring parents on employers of their adolescent children.  In my view, such reliance is a relevant but incidental aspect of the proximity inquiry."

     [375](2000) 23 WAR 35 at 62-63.

355. The appeal to the Full Court was therefore dismissed.

     The appeal to this Court

356. At the outset it is important to point out that it was the applicants' case that the breach of duty relied on was a breach of the duty of care owed to the applicants by the respondent as an employer of the applicants' child.  The way in which the applicants alleged a relationship of proximity is important.

     "The Plaintiffs and the Defendant were at all material times in a relationship of proximity arising from the following facts and matters:

     (a)the Defendant knew the Plaintiffs were the parents of the Deceased;

     (b)the Plaintiffs had made inquiries of the servants or agents of the Defendant in relation to the arrangements for the safety of the Deceased and received assurances in relation to his safety;

     (c)the Defendant knew that if there was a breach of the duty of care owed to the Deceased, that he may die in circumstances of particular distress to his parents having regard to his manner of death namely perishing in the desert;

     (d)the Defendant knew of the ongoing concern of the Plaintiffs in relation to the supervision of the Deceased and were on notice by reason of their earlier and ongoing inquiries that if there was a breach of the duty of care owed by the Defendant as the employer of the Deceased to the Deceased that there was a foreseeable risk that the parents would suffer not only a grief reaction but in addition a reaction extending beyond grief to an entrenched psychiatric condition of the type which has since developed;

     (e)the Plaintiffs also allege that as parents of the Deceased they were within the range of persons who an employer owed a duty of care to and that breach of the employer's duty of care resulting in death to a young employee such as the Deceased, would be likely to cause psychiatric injury to near relatives;

     (f)the Plaintiffs relied upon the Defendant to supervise the Deceased as a 16 year old child and entrusted [it] with his care and welfare, a matter about which the Defendant knew or ought to have known."

357. I endorse the applicants' submission that by reason of the relationship of proximity identified in the paragraphs above, the respondent owed a duty of care to the applicants as the parents of the deceased, and that as his employer it would exercise reasonable care in the supervision of him, and otherwise in the system of work that was put in place, so as to not be in breach of its obligation to him in circumstances which could and did cause his death.  By reason of the facts and matters set out above the respondent acted in breach of the duty of care it owed to the deceased thereby causing psychiatric harm to his parents, the applicants.

358. There were, in this case, three bilateral relationships of the parties of the kind to which Barwick CJ referred in the context of negligent misstatement in Mutual Life & Citizens' Assurance Co Ltd v Evatt[376]:  employer (the respondent) and employee and person whose safety was the subject of a special assurance (James); parents (the applicants) and child (James); and the assured of James' safety and welfare (the applicants) and assurer (the respondent).  There may even have been a fourth, arising out of the other three, and the child's youth, a relationship which placed the respondent in loco parentis to the child, but this was not pleaded.

     [376](1968) 122 CLR 556 at 570.

359. I should state at the outset, that I find myself in disagreement with a number of the ultimate findings of the Full Court.  It is open for me to do so as the findings relate to matters of inference.  I will start by stating what those matters are, and my reasons for disagreeing with them.

360. That psychiatric injury might be suffered by his parents, upon communication:  of the news that James was missing; was still the subject of a search in the desert; or that his vehicle had been found bogged in a remote place; or that remains and objects likely to be his had been found; or that his skeleton had been found:  or on the viewing of the photograph of his skeleton:  was each, or in combination foreseeable.  Whether this is so does not depend upon any special psychiatric training or knowledge.  The loss of a young child in a parent's lifetime is one of the saddest events that a parent can suffer.  That it occurred in harsh, lonely conditions in the circumstances of one or other of the "bilateral relationships" which existed here leads inevitably to a conclusion that psychiatric harm might foreseeably be suffered.

361. Furthermore, the circumstances of James' disappearance and death, and their necessary, entirely proper communication to his parents could well, and reasonably foreseeably inflict psychiatric harm upon stoic parents, let alone parents of only ordinary fortitude.  Deprivation of a loved one through misfortune may be one thing, the death of a 16 years old boy in respect of whom solemn assurances were given and broken by his employer, and the breaking of which led to an horrific death is an entirely different matter.

362. Ipp J was of the opinion that to ground liability there must be a sudden shock.  The modern basis for this is to be found, in this country, in the judgment of Brennan J in Jaensch[377]:

     "A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by 'shock'.  Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness."

     Brennan J said[378]:

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

     What his Honour says in that passage is consistent with the approach of Windeyer J in Pusey[379].  Ipp J pointed out, that the same or a similar view had been adopted in England in White v Chief Constable of South Yorkshire Police[380], Alcock v Chief Constable of South Yorkshire Police[381] and in Canada in Rhodes v Canadian National Railway[382].

     [377](1984) 155 CLR 549 at 565.

     [378](1984) 155 CLR 549 at 567.

     [379]In Jaensch v Coffey (1984) 155 CLR 549 at 609, Deane J also refers to Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 407 per Windeyer J.

     [380][1999] 2 AC 455.

     [381][1992] 1 AC 310.

     [382](1990) 75 DLR (4th) 248.

363. I would, with respect, adopt the definition of Brennan J in Jaensch of "shock" as a "sudden sensory perception … by seeing, hearing or touching … of a person, thing or event".  As always however some questions of degree will be involved.  As Windeyer J said in Pusey[383], circumstances alter cases.  I would therefore read the dictum of Windeyer J that I have quoted as being subject to a qualification that an intention to cause nervous shock, will not be a necessary requirement in a communication case, when the "bad news" is especially horrific, and it is conveyed to, and in respect of persons in a special "bilateral" relationship or relationships as here existed.  For the purposes of this case it is not necessary to seek to define which relationships will suffice.  As has often been said, particularly in this field of tort law, and other similarly exceptional fields, of pure economic loss and negligent misstatement, the common law should only proceed incrementally.

     [383](1970) 125 CLR 383 at 407.

364. Here the condition posited by Brennan J in Jaensch is in my opinion satisfied.  There was a perception.  The news of it came, as it were, "out of the blue".  The contents of the first telephone call must have come as a thunderclap to the applicants.  It was perceived by hearing.  It was a communication of an horrific event.  Every subsequent communication and viewing were successive thunderclaps, perceived by hearing and seeing, and separately and cumulatively were capable of causing nervous shock.

365. The next question is of the need or otherwise, for direct perception, which Ipp J regarded as synonymous with an actual observation of an event, or of its relatively immediate aftermath.  For reasons which will appear, I think that this requirement also, which however I would express in a slightly qualified and different form from Ipp J, was satisfied.  I would regard a requirement of direct perception as being no more than a requirement that, by one or other of the senses, a "bilaterally related person" perceive, or come to know of, or realise, at the time of, or as soon as is practicable after its occurrence, a shocking event or its shocking aftermath.  So long as, in the case of non-contemporaneity, the lapse of time would not have caused a person of normal fortitude to have reached a settled state of mind about the event, the temporal connexion will be capable of existing.  What happened here is capable of satisfying that requirement.  That is so whether the "event" is to be regarded as communication by the first telephone call, or the subsequent calls, the viewing of James' effects, the sighting of the photograph, or a combination of one or more of these.

366. In my opinion, the reasons for judicial caution in cases of nervous shock remain valid, as do the principles formulated by the courts in this country to give effect to that caution.  The principles may need to be refined as new situations, and improvements in the professional understanding, diagnosis and identification of psychiatric illness occur.  Those principles are currently in summary these.  There must have occurred a shocking event.  The claimant must have actually witnessed it, or observed its immediate aftermath or have had the fact of it communicated to him or her, as soon as reasonably practicable, and before he or she has or should reasonably have reached a settled state of mind about it.  The communicator will not be liable unless he or she had the intention to cause psychiatric injury, and was not otherwise legally liable for the shocking event.  A person making the communication in the performance of a legal or moral duty will not be liable for making the communication.  The event must be such as to be likely to cause psychiatric injury to a person of normal fortitude.  The likelihood of psychiatric injury to a person of normal fortitude must be foreseeable.  There need to exist special or close relationships between the tortfeasor, the claimant and the primary victim.  Those relationships may exist between employer and employee and co-employees and relationships of the kind here in which an assurance was sought, and given, and dependence and reliance accordingly ensued.  Other relationships may give rise to liability in future cases.  A true psychiatric injury directly attributable to the nervous shock must have been suffered.  The evidence in this case, if accepted could satisfy all of those conditions.

367. I would therefore grant special leave, uphold the appeal, and order that the question posed by the Supreme Court of Western Australia be answered "yes".  The respondent should pay the appellants' costs at first instance, in the Full Court and in this Court.