‘A Principled and Pragmatic Approach to Cases of Negligently Inflicted Psychiatric Injury Based on Corrective Justice and Kantian Right’
Martin Alan James Allcock
LLB(Hons)/BBSc
Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy
Faculty of Law Queensland University of Technology April 2018
1
Keywords
Negligence – Australia
Negligently inflicted psychiatric injury
Personal injuries -- Australia
Liability – Australia
Corrective justice
Interpretive legal theory
2
Abstract
This thesis considers a particularly challenging area of law, namely, negligence involving pure psychiatric damage. The courts have traditionally struggled to find an approach to the duty of care in this area of law which is able to set clear rules of liability which are not arbitrary or unfair. This is primarily because of the intangible nature of the injury suffered, complexity of causal mechanisms involved, and limitations in relevant scientific knowledge. The courts have for these reasons commonly treated such claims with suspicion and have adopted strict controls on the ambit of liability. Underlying the fears expressed by the courts has been the view that it has been particularly difficult to develop principles of liability of general application which will not result in indeterminate liability and an opening of the floodgates of litigation.
Orthodox understandings of this area of law suggest that there are two broad solutions to this problem. The first is a generalised test of reasonable foreseeability as the only duty test, advanced on the basis that this is a principled approach which does not set arbitrary and unjust rules of liability. Whilst having the advantage of flexibility, this approach risks leaving liability too wide. The second proposes clear and predictable rules of liability in addition to a test of reasonable foreseeability. This approach regards the imposition of arbitrary rules of liability as a regrettable necessity in order to ensure that the cause of action is kept within manageable limits. Importantly, orthodox understandings do not regard the ideals of principle and real- world manageability to be concurrently achievable.
It is argued in this thesis that when applied to claims of negligently inflicted psychiatric injury, Ernest Weinrib’s and Allan Beever’s corrective justice theories of negligence suggest an approach to the duty of care which represents a distinct approach to the duty of care in this area of law. Being based solely on matters relevant to the interpersonal morality between the parties involved, this approach is based on principle. At the same time, this approach has the advantage of clarity and predictability, and is able to respond to fears of indeterminate liability, an opening of the floodgates of litigation, and an undue burden being placed on defendants. As such, this approach challenges orthodox understandings with respect to this area of law that principle on the one hand, and pragmatism on the other, are fundamentally inconsistent goals of the law.
3
It is further demonstrated in this thesis that this corrective justice approach is grounded in the institutional history of the common law in this area. This approach provides a basis to understand and explain each significant expansion of liability seen in this area of law between Dulieu v White & Sons (1900) and the current leading Australian common law cases of Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) and Gifford v Strang Patrick Stevedoring Pty Ltd (2003). It is argued that not only is this approach consistent with the current common law position, but also that it represents an improvement on the current common law as it provides appropriate guidance for future applications of the law in novel situations. The civil liability legislation passed in the wake of Tame; Annetts and Gifford is also analysed from this perspective, and is shown to be arbitrary and unprincipled from this perspective.
4
Table of Contents
Keywords ...... 2 Abstract ...... 3 Table of Contents ...... 5 Statement of Original Authorship ...... 10 Acknowledgments...... 11 Publications ...... 12
PART I INTRODUCTION
1 INTRODUCTION ...... 13 1.1 Introduction to this thesis ...... 13 1.2 The law with respect to negligently inflicted psychiatric injury: an apparent trade-off between principle and pragmatism...... 16 1.3 An approach to cases of negligently inflicted psychiatric injury which is both principled and pragmatic ...... 27 1.3.1 Why a theory based on corrective justice? ...... 29 1.3.2 Why Beever’s corrective justice theory? ...... 31 1.4 Research hypothesis ...... 35 1.5 Selection of cases for analysis...... 38 1.6 Framework of this thesis ...... 41 1.7 Conclusion ...... 43
PART II THEORETICAL FRAMEWORK
2 WEINRIB’S AND BEEVER’S CORRECTIVE JUSTICE THEORIES OF NEGLIGENCE ...... 45 2.1 Introduction ...... 45 2.2 Beever’s principled approach to the law of negligence ...... 45 2.3 Implications for cases where the risk of particular injuries as a result of particular actions may not be appreciable in the general community ...... 57 2.4 Conclusion ...... 59
5
3 CRITIQUE AND DEFENCE OF WEINRIB’S AND BEEVER’S CORRECTIVE JUSTICE THEORIES ...... 60 3.1 Introduction ...... 60 3.2 Common criticisms of Weinrib’s and Beever’s theories ...... 61 3.2.1 Theory does not reflect law as it actually exists – interpretive theory tautological ...... 62 3.2.2 No meaningful distinction between principle and policy ...... 66 3.2.3 Rights analysis ambiguous ...... 72 3.2.4 Rights analysis external to the law ...... 74 3.2.5 Rights analysis not apolitical ...... 76 3.3 Disagreement about the conditions of legal validity – the argument from theoretical disagreement ...... 78 3.4 Conclusion ...... 82
4 AN APPROACH TO CASES OF NEGLIGENTLY INFLICTED PSYCHIATRIC INJURY WHICH IS BOTH PRINCIPLED AND PRAGMATIC ...... 84 4.1 Introduction ...... 84 4.2 Existence of a right to psychological integrity ...... 85 4.3 Normative limits of a right to psychological integrity ...... 90 4.3.1 The ability to appreciate risk ...... 93 4.3.1.1 Changes in brain physiology not necessarily ‘injuries’ ...... 94 4.3.1.2 No unequivocal medical tests indicating cause ...... 95 4.3.1.3 Range of responses to trauma ...... 96 4.3.1.4 Causal explanations differ between disorders ...... 98 4.3.1.5 A larger combined right to physical and psychological integrity ………….………………………………………………………….... . 98 4.3.2 Common perceptions of risk relevant to the right to freedom from interference ...... 99 4.3.3 Refinements to the general proposition ...... 101 4.4 An approach to cases involving negligently inflicted psychiatric injury which is both principled and pragmatic ...... 108 4.5 Conclusion ...... 116
6
PART III ANALYSIS
5 ANALYSIS OF LEADING COMMON LAW CASES: COULTAS, DULIEU AND HAMBROOK – EARLY THREADS OF CORRECTIVE JUSTICE ...... 119 5.1 Introduction ...... 119 5.2 Assessing the common ability to appreciate the risk of psychiatric injury ...... 120 5.3 Victorian Railways Commissioners v James Coultas (1888) App Cas 222 ...... 122 5.3.1 Prevailing understandings of the causes of psychiatric disorders ...... 125 5.3.2 Corrective justice analysis of Coultas ...... 142 5.4 Dulieu v White & Sons (1900) All ER Rep 353 ...... 146 5.4.1 Prevailing understandings of the causes of psychiatric disorders ...... 151 5.4.2 Corrective justice analysis of Dulieu ...... 154 5.5 Hambrook v Stokes Brothers (1924) All ER 110 ...... 160 5.5.1 Prevailing understandings of the causes of psychiatric disorders ...... 163 5.5.2 Corrective justice analysis of Hambrook ...... 177 5.6 Conclusion ...... 182
6 ANALYSIS OF LEADING COMMON LAW CASES – CHESTER AND BOURHILL – TWO CASES OF CORRECTIVE (IN)JUSTICE ...... 187 6.1 Introduction ...... 187 6.2 Chester v The Council of the Municipality of Waverley (1939) 62 CLR 1 ...... 188 6.2.1 Prevailing understandings of the causes of psychiatric disorders ...... 192 6.2.2 Corrective justice analysis of Chester ...... 200 6.3 Hay or Bourhill v Young (1942) 2 All ER 396 ...... 210 6.3.1 Prevailing understandings of the causes of psychiatric disorders ...... 211 6.3.2 Corrective justice analysis of Bourhill ...... 221 6.4 Conclusion ...... 227
7 ANALYSIS OF LEADING COMMON LAW CASES: PUSEY AND JAENSCH – CONTINUED EXPANSION OF THE RIGHT TO PHYSICAL AND PSYCHOLOGICAL INTEGRITY ...... 231 7.1 Introduction ...... 231 7.2 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 ...... 232 7.2.1 Prevailing understandings of the causes of psychiatric disorders ...... 238 7.2.2 Corrective justice analysis of Pusey ...... 248
7
7.3 Jaensch v Coffey (1984) 155 CLR 549 ...... 256 7.3.1 Prevailing understandings of the causes of psychiatric disorder ...... 264 7.3.2 Corrective justice analysis of Jaensch ...... 272 7.4 Conclusion ...... 283
8 ANALYSIS OF LEADING COMMON LAW CASES: TAME, ANNETTS AND GIFFORD – EMERGENCE OF A CORRECTIVE JUSTICE APPROACH ... 286 8.1 Introduction ...... 286 8.2 Tame v New South Wales (2002) 211 CLR 317 ...... 287 8.2.1 Prevailing understandings of the causes of psychiatric disorders ...... 289 8.2.2 Corrective justice analysis of Tame ...... 294 8.3 Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 ...... 301 8.3.1 Prevailing understandings of the causes of mental disorders ...... 310 8.3.2 Corrective justice analysis of Annetts ...... 314 8.4 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 ...... 321 8.4.1 Prevailing understandings of the causes of mental disorders ...... 323 8.4.2 Corrective justice explanation of Gifford ...... 327 8.5 Conclusion ...... 330
9 ANALYSIS OF CIVIL LIABILITY LEGISLATION, WICKS AND PHILCOX – INTRODUCTION OF ARBITRARY AND UNPRINCIPLED STATUTORY LIMITATIONS ...... 334 9.1 Introduction ...... 334 9.2 Ipp Report ...... 334 9.3 Civil liability legislation ...... 337 9.3.1 Western Australian and Australian Capital Territory legislation ...... 337 9.3.2 New South Wales, Victorian, South Australian, and Tasmanian legislation . 340 9.4 Judicial consideration of the civil liability legislation ...... 344 9.4.1 Wicks v State Rail Authority (2010) 241 CLR 60 ...... 345 9.4.2 King v Philcox (2015) 255 CLR 304 ...... 346 9.5 Conclusion ...... 349
8
PART IV CONCLUSION
10 IMPLICATIONS ...... 351
BIBLIOGRAPHY ...... 355
9
Statement of Original Authorship
The work contained in this thesis has not been previously submitted to meet requirements for an award at this or any other higher education institution. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made.
Signature: QUT Verified Signature
Date: ______
10 Acknowledgments
I would like to thank my supervisors Professor Des Butler and Associate Professor Amanda Stickley from the Queensland University of Technology and Professor Allan Beever from Auckland University of Technology. I am thankful to have been provided with such expert guidance. Completing a PhD is quite a journey and I am very grateful to have been in such safe hands.
I would also like to express my gratitude to the Australasian Society of Legal Philosophy for hosting such an enjoyable annual conference each year, and to its members for providing me with such generous feedback over the last few years. In particular I would like to express my thanks to Professor Matthew Harding, Associate Professor Kristen Rundle, Dr Dale Smith, and Dr Lael (‘Lulu’) Weis, all from the University of Melbourne. Each of you has spent more time than you likely had discussing private law theory with me and I cannot tell you how invaluable this has been to my intellectual and personal development throughout my doctoral studies.
I can genuinely say I have been astonished at how many academics have been kind enough to provide me with feedback when I have sent them manuscripts from out of the blue when I know that they have precious little spare time. I would like Professor Prue Vines from the University of New South Wales, Professor Andrew Robertson from the University of Melbourne, Professor Joachim Dietrich from Bond University, and Sharon Erbacher from Deakin University, for each doing this for me. I am very grateful for the time you have spent providing me with such insightful guidance and will endeavour to show this kind of generosity if I am ever in the same position in the future.
I would like to express my special thanks to Dr Rupert Johnson from Edith Cowan University. Our lunchtime chats about life, law, history, and family over the last few years have truly been a joy.
Finally and most importantly, I would like to express my thanks to my wife Melissa and our four lovely children Declan, Molly, Spencer, and Patrick. You are quite simply my reason for living.
11
Publications
The following is a list of publications emanating from this research:
1. Martin Allcock, ‘Corrective Justice and Kantian Right as a Mechanism to Reconcile Substantially Clashing Interests in Cases of Negligently Inflicted Psychiatric Injury’ (2015) 40 Australian Journal of Legal Philosophy 17
2. Allcock, Martin, ‘In Defence of Weinrib’s and Beever’s Interpretive Theories of Negligence’ (2017) 24 Torts Law Journal 125
3. Martin Allcock, ‘Pure Psychiatric Injury Pursuant to the Civil Liability Legislation: An(other) Economic Perspective’ (2018) 25 Journal of Law and Medicine 814
12
PART I INTRODUCTION Chapter 1: Introduction
1.1 Introduction to this thesis
Negligence cases involving pure psychiatric injury have been, and continue to be, particularly challenging for courts. This is because these cases often involve complex questions of causation which impact upon the extent to which it may be said that the defendant was morally and legally responsible for causing injury to the claimant. There is also a common view that the application of general principles of negligence in this area may lead to indeterminate liability and an opening of the floodgates of litigation. As a result, calls have often been made to introduce limits on the ambit of liability which, whilst often being arbitrary, respond to these fears and have the benefit of being clear and predictable. In this thesis, a principled approach to the law of negligence relating to pure psychiatric injury is advanced which as well as being principled is also pragmatic. This approach draws on Ernest Weinrib’s and Allan Beever’s corrective justice theories of negligence.1 It will be argued that these theories suggest a distinct approach to the duty of care which does not need to trade off the seemingly inconsistent goals of principle and justice, against those of clarity, predictability, and real-life workability.
The story of the development of negligence involving psychiatric damage in Australia at common law is well-known, involving over a century of gradual expansion of liability, beginning with the Victorian Railways Commissioners v Coultas2 up to and including the High Court cases of Tame v New South Wales; Annetts v Australian Stations Pty Ltd,3 Gifford v
1 See, eg, Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1995, 2012); Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007); A Theory of Tort Liability (Hart Publishing, 2016). 2 (1888) 13 App Cas 222. Such claims have been traced back to 1348 to the claim of I de s et ux v W de s YB 22 Edw III, f 99, pl 60 (1348): see, eg, HW Smith, Relation of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli’ (1944) 30 Virginia Law Review 193, 193-4; RN Pearson, ‘Liability to Bystanders for Negligently Inflicted Emotional Harm – A Comment on the Nature of Arbitrary Rules’ (1982) 34 University of Florida Law Review 477, 485: cited in Des Butler, Damages for Psychiatric Injuries (Australian Legal Monographs, Federation Press, Sydney, 2004) 35. 3 (2002) 211 CLR 317.
13
Strang Patrick Stevedoring Pty Ltd,4 Wicks v State Rail Authority5 and King v Philcox.6 This gradual expansion of liability has in large part been the result of the law seeking to reflect ever- expanding medical understandings of the causes of psychiatric illness, although as Windeyer J in Mount Isa Mines v Pusey7 poignantly stated, whilst marching with medicine the law has been ‘in the rear and limping a little’.8
In their joint judgment in Tame v New South Wales; Annetts v Australian Stations Pty Ltd9 Gummow and Kirby JJ explained that this area of law is characterised by an attempt to accommodate competing interests struggling for legal protection, referring to the interests of claimants in their psychological integrity and to the interests of defendants in their freedom of action.10 The struggle referred to by Gummow and Kirby JJ relates to the difficulties faced by courts in developing an approach which is both principled and pragmatic, that is, an approach which makes distinctions based upon the merits of the case which at the same time will not result in indeterminate liability and an opening of the floodgates of litigation.11 It is argued in
4 (2003) 214 CLR 269. 5 (2010) 241 CLR 60. 6 (2015) 255 CLR 304. 7 (1970) 125 CLR 383 (‘Pusey’). 8 See Mount Isa Mines v Pusey (1970) 125 CLR 383, 395 (Windeyer J). Also see P Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (Lawbook Co, 2nd ed, 2006) 5. For a detailed account of how the law of negligence involving psychiatric damage has followed from advances in medical understandings, see generally Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998). 9 (2002) 211 CLR 317, 374 [170]. 10 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 374[170]. In drawing out this point, Gummow and Kirby JJ at 374[170] referred to Professor Stone’s The Province and Function of Law, in which Stone stated:
The apparent anomalies and illogicalities of this subject are overt signs of a substantial clash of interests. Full support of the claim to nervous integrity might not only subject defendants being mulcted in damages on false claims, thus infringing their interests of substance. It would also tend to inhibit freedom of action generally, thus prejudicing claims to free motion and locomotion: (1946) 512.
11 Other matters of concern to courts in relation to such claims include the fear that such claims are susceptible to fabrication, the perception that such claims are likely to have a detrimental effect on the rehabilitation of the plaintiff, the perception that medical opinions may differ, and the perception that psychiatric injury is not as significant as physical injury: see, eg, Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, [192] (Gummow and Kirby JJ); Des Butler, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury Resulting from Negligence’ (2002) 10 Torts Law Journal 1, 13.
14 this thesis that the approach suggested by Beever’s corrective justice is able to meet these seemingly inconsistent goals.
This perceived problem has played a particularly strong part in the determination of the frontiers of liability in cases of negligence involving psychiatric injury.12 It has tended to arise in these cases more so than in cases involving physical injury due to the complex issues of scientific causation which often exist in relation to psychiatric harm. In particular claims involving psychiatric injury are not inherently limited in time and space in the same way that claims involving physical injury generally are. The causal mechanisms involved in relation to physical injuries generally result in risk of injury from a defendant’s actions being limited to a particular time and physical place.13 This means that in practice the number of claims of negligence in relation to physical injury is generally inherently limited.14
This does not apply in the same way in relation to psychiatric injuries which can be caused in a myriad of circumstances. Unlike most physical injuries psychiatric injuries may be caused even when the phenomenon causally responsible for the injury is not close in time and space to the resulting psychiatric injury itself.15 Moreover, the causal mechanisms involved in relation to psychiatric disorders have themselves been relatively poorly understood in comparison with the causal mechanisms involved in relation to most physical injuries. This has resulted in courts
12 See Des Butler, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury Resulting from Negligence’ (2002) 10 Torts Law Journal 1, 1. 13 In order for a defendant to cause a physical injury to another person, they generally have to be close to that person both in time and in space. Physical injuries such as broken bones also have a tangible quality which psychiatric injuries generally do not possess. This is not necessarily the case in relation to all physical diseases, such as diseases of the lung which can manifest at a time far removed from exposure to the agent which causes the disease. Some Australian jurisdictions have enacted legislation governing claims relating to dust diseases: see, eg, Dust Diseases Tribunal Act 1989 (NSW); Dust Diseases Act 2005 2005 (SA). 14 See Hayne J’s judgment in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 408 [265] for further discussion of this point. 15 Katter calls this the ‘ripple effect’, i.e., ‘the propensity to manifest at one or more removes from the direct effect of the negligence’: Norman Katter, ‘“Who Then in Law is My Neighbour?” Reverting to First Principles in the High Court of Australia’ (2004) 12 Tort Law Review 85, 86. For an example, see Des Butler’s examination of the potential for people’s mental well-being to be affected by the mass media: Des Butler, ‘Mass Media Liability for Nervous Shock: A Novel Test for Proximity’ (1995) 3 Torts Law Journal 1, 5, 13.
15 often being concerned about applying the ordinary principles of negligence in such cases, fearing such an approach will result in the ambit of liability being unrestricted.16
Over the course of the development of the law in this area a general pattern has emerged in the approaches taken by the courts in the leading cases. This pattern, well known to those familiar with the law in this area, has involved the case-by-case expansion of liability as the law is applied to new factual scenarios in light of expanding scientific knowledge, followed by limitations being placed on those extensions by the courts for pragmatic reasons. New limitations have inevitably later been criticised for themselves leading to the making of arbitrary and unprincipled distinctions.17
1.2 The law with respect to negligently inflicted psychiatric injury: an apparent trade- off between principle and pragmatism
The ambit of liability in cases involving pure psychiatric injury has expanded considerably since the late nineteenth century driven primarily by ongoing advancements in psychiatric medicine. For this reason the courts have repeatedly extended the ambit of liability to find for claimants for reasons of principle in situations not previously contemplated by the common law. However in doing so courts have also commonly placed further limits on liability due to concerns that the expansion of liability in question will inevitably lead to the law becoming unworkable.
In Victorian Railways Commissioners v Coultas18 the Privy Council considered a claim for damages by a claimant who had suffered fright leading to psychiatric injury as a result of the nearly being struck by an oncoming train. The Judicial Committee was strongly influenced by the lack of physical impact between the train and the claimant, considering this to be relevant to the question of remoteness. Delivering the court’s judgment19 Sir Richard Couch found that such an injury in the absence of physical injury could not be considered ‘a consequence which,
16 These reasons have resulted in cases of negligence involving psychiatric injury being very good candidates for producing the so-called ‘hard case’: Des Butler, ‘Proximity as a Determinant of Duty: The Nervous Shock Litmus Test’ (1995) 21(2) Monash University Law Review 159, 160. 17 Close consideration of the leading common law cases bears this pattern out repeatedly over the course of the development of this area of the law of negligence. This pattern is outlined in greater depth in chapters 5-8. 18 (1888) App Cas 222, 225 (‘Coultas’). 19 Made up of Lords FitzGerald and Hobhouse, Sir Barnes Peacock, and Sir Richard Couch.
16 in the ordinary course of things, would flow from the negligence of the gate-keeper.’20 The Privy Council expressed its concerns relating to a proliferation of claims and the difficulties that would face the courts if liability for nervous shock was extended to include those who had not suffered physical impact.21
In Dulieu v White & Sons22 the English Court of Appeal considered a similar case in which the claimant suffered psychiatric injury as a result of fearing she would be struck by a vehicle. In Dulieu the vehicle was a pair-horse van which crashed through the front wall of the claimant’s husband’s public house.23 Recognising the scientific evidence that psychiatric injury could be caused in the absence of impact or physical injury, the Court of Appeal in Dulieu found that physical impact was not a necessary ingredient in a cause of action in negligence.24 Kennedy J considered the requirement of physical impact ‘unreasonable’ stating that he would be sorry to adopt a rule which would deny otherwise meritorious claims which should in principle succeed simply in order to quell unrighteous or groundless actions.25 However, having extended the ambit of liability by abandoning the requirement for impact, Kennedy J was concerned that the ambit of liability would be extended to those who suffered psychiatric injury as a result of witnessing death or injury to a third person. Regarding this extension of liability as being unworkable his Honour accordingly found that shock must have arisen from the fear of immediate injury to oneself in order to give rise to a cause of action.26
Kennedy J’s limitation was subsequently considered unprincipled in Hambrook v Stokes Brothers27 in which the claimant’s wife suffered nervous shock due to witnessing a motor accident which appeared likely to injure or kill her children. The scientific legitimacy of Kennedy J’s limitation on liability was called into question in Hambrook and the English Court of Appeal consequently held that this limitation was lacking a principled foundation.28 Bankes
20 Victorian Railways Commissioners v Coultas (1888) App Cas 222, 225. This was despite the medical evidence showing that Mary Coultas’ illness was caused by the fright she suffered. 21 Ibid. 22 [1900] All ER Rep 353 (‘Dulieu’). 23 The claimant was pregnant at the time of the accident and the shock she sustained caused her to become physically ill. 24 Dulieu v White & Sons [1900] All ER Rep 353, 356 (Kennedy J), 361 (Phillimore J). 25 Ibid 360. His Honour stated: ‘such a course involves the risk of denial of justice to meritorious claims, and it necessarily implies a certain degree of distrust, which I do not share, in the capacity of legal tribunals to get at the truth in this class of case’: ibid. 26 Ibid 357. 27 [1924] All ER Rep 110 (‘Hambrook’). 28 See, eg, Hambrook v Stokes Brothers [1924] All ER Rep 110, 113-4 (Bankes LJ).
17
LJ held that the claimant could recover if he could establish that the shock suffered by his wife was caused by reasonable fear of injury to her children.29 This was because the extent of one’s duty in negligence was to be determined by reference to what one ought to have anticipated. His Honour stated that a woman might receive a mental shock leading to injury if the defendant’s lorry rolled down the street and caused her to fear for her own safety. This being the case, Bankes LJ regarded it as arbitrary to distinguish between such a case, and the case of another woman whose injury by shock resulted from fear for the safety of her children.30 Atkin LJ described Kennedy J’s limitation in Dulieu as arbitrary and unprincipled for the same reasons and regarded the distinctions brought about by this limitation as inconsistent with a credible system of justice.31
However, as in Dulieu, the extension of liability in Hambrook for reasons of principle opened up the possibility that liability would extend to situations which were not contemplated in the case immediately before the court, in this case to unrelated third party bystanders. Atkin LJ found that there was no reason in principle not to extend liability to such claimants.32 On the other hand Bankes LJ viewed such a position to be unworkable and found that psychiatric injury must have resulted from one what directly perceived with one’s own unaided senses.33
In two subsequent cases occurring within a few years of each other the limits of what the claimant was required to perceive of the injury or death of a third party would be of central concern to the court. In Chester v The Council of the Municipality of Waverley34 the claimant suffered psychiatric injury as a result of the trauma of frantically searching for her missing seven and a half-year-old son and then witnessing his lifeless body being taken out of a water- filled trench. The defendant controlled the area of road where the drowning occurred and through its servants had caused the trench to be dug. The defendant’s servants placed a railing which the court found was not adequate to prevent children from accessing it. The trench
29 Ibid. 30 Ibid. 31 Ibid 116. Sargant LJ disagreed, taking the view of Kennedy J in Dulieu that the claimant could not succeed unless he could establish that his wife’s illness was caused by shock as a result of apprehension of immediate personal injury to herself. Sargant LJ indicated he was concerned about the floodgates opening and too high a burden being placed on defendants if Kennedy J’s limitation was rejected: ibid 119. 32 Ibid 113-4. 33 Ibid 116. 34 (1939) 62 CLR 1 (‘Chester’).
18 became filled with water due to rain, and the claimant’s son subsequently fell into it. In a judgment which appeared to give some effect to Bankes LJ’s limit on liability, a majority of the High Court of Australia in Chester found that psychiatric injury to the claimant was not reasonably foreseeable particularly as she had not witnessed the moment of her son’s drowning.35
The House of Lords similarly gave effect to perception limitations in Hay or Bourhill v Young.36 In Bourhill the claimant suffered psychiatric injury as a result of the trauma of witnessing a fatal motor vehicle accident involving a stranger. Although the claimant did not see the accident as she was shielded from this sight by the tram she had just stepped off, she heard the defendant’s motorcycle colliding with an automobile and later she saw blood stains on the road after the defendant’s deceased body was taken to hospital. The House of Lords found that the claimant was not owed a duty of care as the defendant could not have reasonably foreseen that the claimant would be likely to suffer nervous shock in the circumstances.37 In support of this conclusion the court relied on the fact that the claimant could not see the defendant at the moment of impact.38 Also of significance to the court was the finding that the claimant was at the time of the collision not in any physical danger herself.39
Nearly thirty years later the High Court of Australia would again consider what the claimant was required to perceive of an accident involving a third party, this time taking a broader view of liability than that taken in Chester and Bourhill. In Mount Isa Mines v Pusey40 the claimant suffered psychiatric injury as a result of what he witnessed going to the assistance of fellow
35 Chester v The Council of the Municipality of Waverley (1939) 62 CLR 1, 10 (Latham CJ), 11 (Rich J), 13-4 (Starke J). This was despite the claimant witnessing her son’s body being recovered from the trench. Evatt J dissented finding that psychiatric injury to the claimant was reasonable foreseeable: ibid 17-24. 36 [1942] 2 All ER 396 (‘Bourhill’). 37 Hay or Bourhill v Young [1942] 2 All ER 396, 400 (Lord Thankerton), 401 (Lord Russell of Killowen), 403 (Lord Macmillan), 406 (Lord Wright), 410 (Lord Porter). 38 Ibid 400 (Lord Thankerton), 401 (Lord Russell of Killowen), 403 (Lord Macmillan), 406 (Lord Wright), 409 (Lord Porter). 39 Ibid 399 (Lord Thankerton), 401 (Lord Russell of Killowen), 403 (Lord Macmillan), 406 (Lord Wright), 409 (Lord Porter). The requirement for ‘direct perception’ of a distressing event as a limitation on liability was later criticised as being arbitrary and unprincipled by the High Court of Australia. This was based on the lack of scientific justification for this limiting device and because it operated in an arbitrary manner: see Mount Isa Mines v Pusey (1970) 125 CLR 383; Jaensch v Coffey (1984) 155 CLR 549; Tame v New South Wales; (2002) 211 CLR 317; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269. 40 (1970) 125 CLR 383 (‘Pusey’).
19 employees who had been horrifically burnt due to electrical shock caused by the defendant employer’s negligence. A few days later the claimant learned of the death of one of his fellow employees due to the injuries he sustained. Around four weeks after the accident the claimant developed severe psychological symptoms. The High Court in Pusey held that the claimant was owed a duty of care based on the finding that it was reasonably foreseeable that an employee of the defendant might suffer burns by electrocution when handling dangerous electrical equipment. It was also reasonably foreseeable that fellow employees would subsequently go to scene of such an accident to render assistance and thereby suffer mental disturbance by what they there witnessed.41
In his judgment, Windeyer J did not consider important the sort of fine distinctions in the character of the traumatic experience that the courts in Chester and Bourhill had considered important, only considering whether the fright and horror suffered by the claimant was sufficient to cause psychiatric injury. His Honour held that the claimant was owed a duty of care based on the relationship between the parties of employer and employee, in addition to their relationship as ‘neighbours’.42 However, having found for the claimant, Windeyer J – like Kennedy J in Dulieu and Bankes LJ in Hambrook – showed some unease regarding the workability of the law, particularly in light of his Honour’s concern to maintain the limit on liability preventing claims resulting from the receipt of distressing news.43 Mindful of the potential widening effect of his decision on the scope of liability, his Honour sought to constrain the effect of his decision to cases on a similar factual footing, limiting the effect of his decision to only those cases which were indistinguishable from the facts in the case.44
The rules relating to perception requirements in cases involving accidents to third parties would later be tested again. In Jaensch v Coffey45 the High Court was faced with a situation in which the claimant suffered psychiatric injury as a result of witnessing her husband’s injuries sustained after a motor vehicle accident caused by the negligence of the defendant. The claimant did not witness the accident itself involving her husband either through sight or hearing. Instead, the claimant’s husband was taken to hospital after the accident and there the
41 Ibid 389-90 (Barwick CJ), 391 (McTiernan J), 393 (Menzies J), 401 (Windeyer J), 410, 411, 413-4 (Walsh J). 42 Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, 404. 43 Ibid. 44 Ibid 407. 45 (1984) 155 CLR 549 (‘Jaensch’).
20 claimant witnessed him in an injured state. She subsequently developed anxiety and depression as a result of what she saw and was told at the hospital, particularly fearing her husband might die. The scientific evidence in this case showed that the trauma suffered by the claimant was sufficient to cause psychiatric injury. Despite not witnessing the moment of her husband’s accident all five members of the High Court in Jaensch found that the claimant was owed a duty of care by the defendant on the basis that psychiatric injury to her was reasonably foreseeable in the circumstances.46
As with many of the other leading cases the judges in Jaensch were concerned that this extension of liability may lead to the law becoming unmanageable if left unlimited. As such, the individual judges used a range of methods to limit liability. Having considered the direct perception rule a limitation lacking in principled foundations the High Court did not abandon consideration of whether the claimant directly perceived a distressing event. Instead the court chose to extend the range of phenomena which would satisfy this requirement as well as the amount of time within which these phenomena must be perceived. In finding for the claimant in Jaensch the High Court in effect extended liability to circumstances where the claimant could show they had witnessed the immediate aftermath of the accident, with the period of immediate post-accident treatment at the hospital satisfying this condition.47
A range of methods were chosen to give effect to this extension. Deane J introduced the concept of ‘proximity’ as a limitation on the test of reasonable foreseeability in response to the perceived inadequacies of the requirements of physical proximity and direct perception.48 However, proximity as a concept was itself later criticised on the basis that it is insufficiently fixed in meaning to allow it to be used to provide clear guidance in subsequent cases.49 By
46 Jaensch v Coffey (1984) 155 CLR 549, 555-6 (Gibbs CJ), 557-8 (Murphy J), 578 (Brennan J), 611 (Deane J), 612 (Dawson J). 47 Ibid. For a critique of the immediate aftermath rule, see Peter Handford, Mullany & Handford’s Tort Liability for Psychiatric Damage (Thomson Lawbook Co, 2nd ed, 2006) 238-9. 48 Jaensch v Coffey (1984) 155 CLR 549, 578. This was part of Deane J’s broader notion of proximity which he had proposed for the law of negligence. In seeking to justify his concept of proximity specifically in relation to cases of negligently inflicted psychiatric injury Deane J was concerned that liability might be indeterminate if the law was not restrained in some way. 49 See, eg, Des Butler, ‘Proximity as a Determinant of Duty: The Nervous Shock Litmus Test’ (1995) 21(2) Monash University Law Review 159, 186-7; Des Butler, ‘Managing Liability for Bystander Psychiatric Injury in a Post-Hill v Van Erp Environment’ (1997) 13 Queensland University of Technology Law Journal 152, 171; Peter Handford, Mullany & Handford’s Tort Liability for Psychiatric Damage (Thomson Lawbook Co, 2nd ed, 2006) 117-8. The shortcomings of Deane’s notion of proximity were well-demonstrated by its application to cases
21 contrast, Brennan J held that in addition to the requirement of reasonable foreseeability, claims of nervous shock were limited to those where the claimant could show that they had suffered a ‘sudden shock’ to the senses and that they were a person of ‘ordinary fortitude’.50 Brennan J’s notion of ‘sudden shock’ has also been criticised for lacking principled foundations on the basis that it makes arbitrary distinctions between claimants.51 The notion of ‘normal fortitude’ has also been criticised on this basis.52
The notions of direct perception, sudden shock and normal fortitude were subsequently criticised as unprincipled by the High Court of Australia in Tame v New South Wales; Annetts v Australian Stations Pty Ltd53 and in Gifford v Strang Patrick Stevedoring Pty Ltd.54 In neither Annetts nor Gifford could it be shown by the claimants that they had directly witnessed the death of their loved one, including witnessing the immediate aftermath of the accident. By the time of these two cases, it was relatively clear from the medical evidence at the time that experiencing the trauma of losing a loved one in unexpected circumstances could result in the suffering of a psychiatric disorder.55 As with many of the other leading cases, the advancement of medical knowledge presented the High Court with the choice between denying the claims before them because they did not satisfy existing legal principles or extending the ambit of liability to take into account the latest scientific evidence. The High Court chose the latter option.
In Annetts the notions of ‘normal fortitude’, ‘direct perception’, and ‘sudden shock’ as pre- requisites to establishing a duty of care were abandoned. Gummow and Kirby JJ described these control mechanisms as ‘unsound in principle’ and as operating in ‘an arbitrary and
of negligently inflicted psychiatric injury in the late 1980s and early-to-mid 1990s: see 7.3 for further discussion of this point. Proximity as a general approach to the law of negligence was also subsequently criticised and abandoned by the High Court: see Sullivan v Moody (2001) 207 CLR 562. 50 Jaensch v Coffey (1984) 155 CLR 549, 565-8. 51 For eg, see Gummow and Kirby JJ in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 who did not regard the requirement of ‘sudden shock’ as having any origin in principle, stating that it ‘would be arbitrary and inconsistent in application’: at 387-8[207]. 52 See, eg, Des Butler, ‘Susceptibilities to Nervous Shock: Dispensing with the Mythical ‘Normal Person’’ (1997) 1 Macarthur Law Review 107. 53 (2002) 211 CLR 317 (‘Tame; Annetts’). 54 (2003) 214 CLR 269 (‘Gifford’). 55 See, eg, Des A Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 226.
22 capricious manner’.56 A majority of the High Court in Annetts agreed that liability in cases involving psychiatric injury was not limited only to those in which the claimant could establish that they had suffered a sudden shock, or where the claimant could establish that they had directly perceived a phenomenon or its immediate aftermath.57 However, having held that these factors were not determinative of liability, the majority held that these factors were relevant in determining whether psychiatric injury was reasonably foreseeable in the circumstances.58 This finding was subsequently affirmed by the High Court in Gifford.59
Some members of the High Court have given an indication that it is desirable to seek to continue to try to identify a principled solution to the duty issue in cases involving pure psychiatric injury60 although this has not been universal.61 Though the High Court in Annetts removed many of the previous unprincipled control mechanisms there nonetheless remained concerns expressed by some of the members of the High Court relating to fears of indeterminate liability and an unfair burden being placed on defendants, as well as fears of the floodgates of litigation opening.62 For example, Gleeson CJ regarded the caution displayed by the courts regarding the boundaries of liability in negligence in relation to both financial harm and mental harm as justified.63 His Honour made further comments in this vein in Gifford64 stating that he
56 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 380 [190]. Gummow and Kirby JJ further stated that ‘the “nervous shock” cases predicate elusive distinctions with no root in principle and which are foreign to the merits of the litigation’: ibid. 57 Ibid 333 [18] (Gleeson CJ), 340 [51] (Gaudron J), 390 [213], 394 [225] (Gummow and Kirby JJ). 58 Ibid. 59 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 276[8] (Gleeson CJ), 287- 288[45]-[46] (McHugh J), 394[65] (Gummow and Kirby JJ), 303-304[97]-[98] (Hayne J), 308[117] (Callinan J). For further discussion of Gifford, see Des Butler, ‘Gifford v Strang and the New Landscape for Landscape for Recovery for Psychiatric Injury in Australia’ (2004) 12 Torts Law Journal 2, 108; Danuta Mendelson, ‘The Modern Australian Law of Mental Harm: Parochialism Triumphant’ (2005) 13(2) Journal of Law and Medicine 164. 60 See, eg, Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 368 (Gummow and Kirby JJ); Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 277[13] (Gleeson CJ), 279[18], 281 [27] (McHugh J), 294[65] (Gummow and Kirby JJ). This effectively means that the ambit of liability be defined by the concept of ‘reasonableness’ rather than by specific controlling factors: see Hon Desmond Herrington, ‘Theory of Negligence Advanced in the High Court of Australia’ (2004) 78 Australian Law Journal 595, 595. 61 See, eg, Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 (Hayne J); Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 (Hayne J). 62 See, eg, concerns expressed by Gleeson CJ in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 332[14]. 63 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 332[15]. 64 (2003) 214 CLR 269.
23 considered an untrammelled test of foreseeability as likely to place an unreasonable burden on human activity.65 Similar concerns were expressed in Annetts by Hayne J and by Callinan J66 who both gave further voice to these concerns in Gifford.67
The current common law position in Australia is that established in Tame v New South Wales; Annetts v Australian Stations Pty Ltd,68 an approach which bears the marks of over a century of case-by-case expansion of the rules of liability to suit changing societal conditions. This approach considers the Donoghue v Stevenson69 test of reasonable foreseeability to be the central question when determining the existence of a duty of care, with a number of considerations being relevant to this, namely:
(i) whether the claimant directly perceived injury or death to another through sight or hearing or whether the claimant was in a close and loving relationship with a person injured or killed;
(ii) whether the claimant suffered a sudden shock;
(iii) whether, in the absence of particular knowledge of peculiar susceptibility to psychiatric injury, the claimant was a person of normal fortitude; and
(iv) whether there was a pre-existing relationship between the parties which meant that the defendant should have had the claimant in contemplation.
None of these considerations are essential although their presence or absence may affect the central question of reasonable foreseeability. The claimant must also establish that they have sustained a recognisable psychiatric illness as a result of the defendant’s negligence.70 Six of the eight jurisdictions in Australia have now enacted legislation which alters the common law position in the relevant jurisdictions.71 The legislation which is most similar to the common
65 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 276[8]-[9]. 66 See Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 406[260] (Hayne J), 420-1[3-8] (Callinan J). 67 See Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 304[99] (Hayne J), 307- 8[115] (Callinan J). 68 (2002) 211 CLR 317. 69 Donoghue v Stevenson [1932] AC 562, 580 (Lord Atkin). 70 See Hinz v Berry [1970] 2 QB 40, 42-3 (Denning MR); Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, 394 (Windeyer J). 71 These are Civil Liability Act 2002 (WA), Civil Liability Act 2002 (NSW), Wrongs Act 1958 (Vic), Civil Law (Wrongs) Act 2002 (ACT), Civil Liability Act 1936 (SA) and Civil Liability Act 2002 (Tas). Civil liability legislation was enacted in Queensland and the Northern Territory
24 law is the legislation enacted in Western Australia. Section 5S(1) of the Civil Liability Act 2002 (WA) provides:
A person (the defendant) does not owe a duty of care to another person (the plaintiff ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
Section 5S(2) further provides:
For the purpose of the application of this section in respect of pure mental harm, the circumstances of the case include the following:
(a) whether or not the mental harm was suffered as the result of a sudden shock; (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril; (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril; (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.
The civil liability legislation enacted in the other jurisdictions is substantially similar to the Western Australian legislation in form and effect,72 with two primary exceptions. The first is that the legislation enacted in New South Wales, Victoria, South Australia, and Tasmania all contain additional temporal and relationship limitations on recovery which go beyond the central test of reasonable foreseeability seen in section 5S(1) of the Western Australian legislation.73 The second is that the Tasmanian legislation contains a truncated list of matters to take into account when determining the overriding test of reasonable foreseeability when
but does not contain any provisions affecting the extent of liability in relation to claims for pure mental harm, which are accordingly still governed by the common law in these jurisdictions. 72 Civil Liability Act 2002 (NSW) s 31(1) and (2); Wrongs Act 1958 (Vic) s 72(1) and (2); Civil Law (Wrongs) Act 2002 (ACT) s 34(1) and (2); Civil Liability Act 1936 (SA) s 33(1) and (2); Civil Liability Act 2002 (Tas) s 34. 73 For example, section 30 of the legislation in New South Wales legislation applies in cases where mental harm arises in connection with another person being killed, injured or put in peril, and restricts the classes of claimants to those who can establish they witnessed at the scene the victim being killed, injured or put in peril, or that they are a close member of the family of the victim: Civil Liability Act 2002 (NSW). The Victorian, South Australian, and Tasmanian legislation place similarly worded additional limitations on recovery: see Wrongs Act 1958 (Vic) s 73; Civil Liability Act 1936 (SA) s 53; Civil Liability Act 2002 (Tas) s 32.
25 compared to the Western Australian Act.74 By comparison, claims for negligently inflicted psychiatric injury are dealt with at common law in United Kingdom, the United States of America, Canada.75 In these jurisdictions, a number of arbitrary limitations on liability have been retained at common law due to persisting fears of indeterminate liability if foreseeability is to be the sole determinant of the duty of care.
As has been argued, the orthodox position taken by judges in the leading cases is that the goals of principle and pragmatism are inherently inconsistent; that a principled approach cannot be pragmatic and that a pragmatic approach cannot be principled. The received wisdom in cases involving negligently inflicted psychiatric injury is that the history of litigation in this area reveals this and generally asserts that the courts have never come close to establishing a principled approach to this area of law. Judges and academics have lamented the state of the law when a particular rule or limitation on liability has resulted in arbitrary and unfair distinctions being drawn between claimants.76 Some scholars have been critical of the lack of principle within the law in this area and have advocated an approach which would see reasonable foreseeability as the only test to be applied.77
However judges attempting to determine rules in difficult cases have on occasion indicated an unapologetic acceptance that principle should not be the sole determinant of the duty of care in such cases, arguing that pragmatic matters should play a clear part in limiting the ambit of
74 Section 34 of the Civil Liability Act 2002 (Tas) provides that the only matters relevant to the central question of reasonable foreseeability are whether the plaintiff suffered a sudden shock and whether there was a pre-existing relationship between the plaintiff and the defendant. 75 The situation in New Zealand is complicated due to the treatment of mental injury in the Accident Compensation Act 2001. These complications do not concern the arguments presented in this thesis. 76 See, eg, Alcock v Chief Commissioner of South Yorkshire Police [1992] 1 AC 310, 418 (Lord Oliver of Aylmerton); Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1, 11 (Kirby P); Campbelltown City Council v McKay (1988) 15 NSWLR 501, 503, (Kirby P); Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317[190] (Gummow and Kirby JJ). Academic literature in this vain includes: Peter Handford, ‘Compensation for Psychiatric Injury: The Limits of Liability’ (1995) 2(1) Psychiatry, Psychology & Law 37; Nicholas Mullany, ‘Psychiatric Damage in the House of Lords – Fourth Time Unlucky’ (1995) 3 Journal of Law & Medicine 112; Des Butler, ‘A “Kind of Damage”: Removing the “Shock” From “Nervous Shock”’ (1997) 5 Torts Law Journal 255. 77 See, eg, N Mullany and P Handford, Tort Liability for Psychiatric Damage (The Law Book Co, 1993) 64, 84, 312; P Handford, ‘Psychiatric Injury: The New Era’ (2003) 11 Tort Law Review 13.
26 liability.78 Underlying this type of perspective are the assumptions that no principled approach is possible due to the complexity of the issues involved, and that the best that can be done is to insist on clear and predictable, if arbitrary, limits on the general test of reasonable foreseeability.79 This type of approach has been particularly pronounced in England where the search for principle in cases of negligently inflicted psychiatric injury has all but been abandoned in favour of unprincipled but pragmatic limitations on the ambit of liability.80 In Australia the High Court has indicated that the search for principle is still a worthwhile pursuit81 although Hayne J indicated during his time on the High Court that the search for potential new methods to reign in an untrammelled test of reasonable foreseeability should not be abandoned.82
1.3 An approach to cases of negligently inflicted psychiatric injury which is both principled and pragmatic
In this thesis I will challenge these orthodox understandings. I will contend that not only is a principled and pragmatic approach to this area of law possible but that in Australia the High Court had ostensibly achieved this before the enactment of the civil liability legislation. An approach to the law with respect to pure psychiatric injury which is both principled and pragmatic will be advanced in this thesis underpinned primarily by the corrective justice theory
78 For eg, see the approach taken by the House of Lords in in Alcock v Chief Commissioner of South Yorkshire Police [1992] 1 AC 310. 79 See White v Chief Constable of South Yorkshire Police [1999] 1 All ER 1, 30[g]-[j], 48[h]-[j] (Lord Steyn); Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 329[6] (Gleeson CJ). 80 For example, see the comments of Lord Hoffman in White v Chief Constable of South Yorkshire Police [1999] 1 All ER 1, where it was stated:
It seems to me that in this area of the law, the search for principle was called off in Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907, [1992] 1 AC 310. No one can pretend that the existing law, which your Lordships have to accept, is founded upon principle... Consequently your Lordships are now engaged, not in the bold development of principle, but in a practical attempt, under adverse conditions, to preserve the general perception of the law as system of rules which is fair between one citizen and another: 48[H]- [J].
81 See, eg, Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 368 (Gummow and Kirby JJ); Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 277[13] (Gleeson CJ), 279[18], 281 [27] (McHugh J), 294[65] (Gummow and Kirby JJ); 303-4[97] (Hayne J). 82 See, eg, Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 410[272]; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 304[99].
27 of negligence of Allan Beever.83 This theory provides a perspective of the normative underpinnings of the law of negligence and is based on the Aristotelian notion of corrective justice84 supplemented by the Kantian concept of right.85
This theory seeks to explain the law of negligence in terms of a moral obligation to provide compensation which arises when one breaches the norm against injuring others.86 This perspective regards the legal obligation to provide compensation to the injured party pursuant to the law of negligence as the legal recognition of an underlying moral obligation to do so.87 Aristotle’s concept of corrective justice holds that in the sphere of morality between individuals, what is ‘just’ is the maintenance of a notional equality between them. Where one of the individuals involved in an interpersonal transaction obtains more of the notional equality than that to which they are entitled, corrective justice requires that this inequality be ‘undone’. Kant’s concept of right further expands upon this, explaining that the notional equality referred to by Aristotle is an equality of free wills. According to Kant’s concept of right, the purpose of the law of negligence is the maintenance of the notional equality between the parties, reflected in the defendant’s freedom of action and the claimant’s freedom from interference.
Principles in the law of negligence such as the ‘neighbour principle’ are regarded by Beever’s theory as ‘mid-level principles’ which have been created to reflect underlying moral obligations between the parties arising due to notions of corrective justice and Kantian right.88 The law of negligence is argued to reflect ‘the morality distinctive to the relationship of doing and suffering,’89 acting to enforce this underlying morality. A ‘special morality’ operates
83 See Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016). 84 See Aristotle, Ethica Nicomachea in which Aristotle discusses his conception of ‘rectificatory justice’. 85 See Immanuel Kant, The Metaphysics of Morals. 86 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 42. Also see Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1995, 2012) 2. Weinrib states that public law is ‘the public repository of our most deeply embedded intuitions about justice and personal responsibility’: at 1. 87 Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1995, 2012) 2; Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 42; Ernest Weinrib, ‘The Special Morality of Tort Law’ (1989) 34 McGill Law Journal 403, 408-10. 88 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 47. They are considered ‘mid-level principles’ because they reflect the law’s attempt to do corrective justice in individual cases. That is, these principles exist at some point between corrective justice at a conceptual level and an individual’s coming to the law. 89 Ernest Weinrib, ‘The Special Morality of Tort Law’ (1989) 34 McGill Law Journal 403, 403.
28 between two persons — the wrongdoer, and the victim — with the law of negligence functioning ‘as a medium for the vindication of the plaintiff’s rights against the defendant.’90
The Kantian notion of agency underpinning this theory is able to provide a basis from which to suggest rules of liability which can be considered principled and which also respond to the fears of indeterminate liability and fears of the floodgates of litigation opening. It will be argued that the Kantian concept of agency is able to give meaningful guidance in cases involving complex questions of causation, particularly as these questions relate to the ability to appreciate risk and therefore to moral and legal responsibility for causing harm.91 Of crucial importance in this thesis is the contention that this perspective can underpin an approach to negligently inflicted psychiatric injury which is both principled and pragmatic, challenging the accepted wisdom regarding this area of law.92
1.3.1 Why a theory based on corrective justice?
There are many theories not analysed in this thesis which also have a great deal to tell us about the law of negligence in general and liability for negligently inflicted psychiatric injury in particular. These include other theories based on corrective justice,93 those based on distributive justice94 or on a mixture of corrective justice and distributive justice,95 as well as
90 Ibid 405. 91 It is argued in chapter 4 of this thesis that the approach suggested may also have application to cases of physical injury in which complex issues of causation affect the duty of care. 92 It should be acknowledged that Weinrib’s and Beever’s theories are currently not universally accepted, principally because of the wider internalist thesis underpinning them which asserts that the only notions relevant to the law of negligence are Kantian right operating within a corrective justice framework. The criticisms of these theories are considered and responded to in depth in chapter 3. 93 See, eg, Jules Coleman, Risks and Wrongs (Cambridge University Press, 1992); Stephen Perry, ‘The Moral Foundations of Tort Law’ (1992) 77 Iowa Law Review 449; Arthur Ripstein, Equality, Responsibility, and the Law (Cambridge University Press, 1999). 94 See, eg, Gregory Keating, ‘Distributive and Corrective Justice in the Tort Law of Accidents’ (2000) 74 Southern California Law Review 193. 95 See, eg, George Fletcher, ‘Fairness and Utility in Tort Theory’ (1972) 85 Harvard Law Review 537; Peter Cane, ‘Distributive Justice and Tort Law’ (2001) New Zealand Law Review 401.
29 civil recourse theory,96 economic theories97 and feminist theories,98 to name but a few.99 While each of these theories is worthy of further examination this has not been possible in this thesis for reasons of space. Why then choose Beever’s theory as the theoretical standard underpinning this thesis?
The most important reason for choosing Beever’s theory is that this theory suggests a principled approach to the law of negligence which can be adapted and applied to claims involving negligently inflicted psychiatric injury. Furthermore, it will be argued that the Aristotelian notion of corrective justice and the Kantian concept of right underpinning this perspective are central to the claim that this approach is principled and also workable. It is for this reason that Beever’s particular corrective justice theory has been chosen.
It is well-accepted that corrective justice plays some part in the underlying justification for the law of negligence. In Australia, corrective justice has been accepted by judges in a number of appellate courts and in the High Court as being a central underlying theme underpinning the law of negligence.100 This has also been the case in a number of appellate decisions in
96 See, eg, Benjamin Zipursky, ‘Civil Recourse, Not Corrective Justice’ (2003) 91 The Georgetown Law Journal 695, 698; John Goldberg and Benjamin Zipursky, ‘Seeing Tort Law From the Internal Point of View: Holmes and Hart on Legal Duties’ (2006) 75 Fordham Law Review 1563. 97 See, eg, Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis (Yale University Press, 1970); Steven Shavell, Economic Analysis of Accident Law (Harvard University Press, 1987); Richard Posner, ‘A Theory of Negligence’ (1972) 1 Journal of Legal Studies 29 . 98 See, eg, Jennifer Wriggins, ‘Towards a Feminist Revision of Torts’ (2005) 13 Journal of Gender, Social Policy & The Law 139; Leslie Bender, ‘An Overview of Feminist Torts Scholarship’ (1993) 78 Cornell Law Review 575. 99 These theories will be discussed further in 1.4. 100 See Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 23 ACSR 71, 107[45] (McHugh J); Perre v Apand Pty Ltd (1999) 164 ALR 606, 629[91], 632[103], 645- 6[151] (McHugh J); Cattanach v Melchior (2003) 199 ALR 131, 179[176]-[177] (Kirby J); 213[301] (Callinan J); Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27, [1105], [1209], [1342] (Gillard J); Harriton v Stephens [2004] NSWCA 93, 19[106], [143] (Mason P); Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 205 ALR 522, 551[106] (McHugh J); Noor Al Houda v Bankstown Airport (2005) 215 ALR 625, 662-3[227]-[228] (Hoeben J); Imbree v McNeilly (2008) 248 ALR 647, 686[160] (Kirby J); Gunns Limited v Alishah (No. 4)[2010] TASSC 24, 13-4 [55], 14[58] (Porter J).
30
Canada,101 the United States of America102 and the United Kingdom.103 The importance of corrective justice has also been recognised in the United Kingdom and in the United States of America by important legal bodies other than the courts.104 Given the relatively clear importance of corrective justice to the law of negligence, it is desirable that this concept of justice be explored thoroughly to determine the extent to which it is able explain the law and suggest solutions to difficult legal problems.
1.3.2 Why Beever’s corrective justice theory?
There are other theories based on corrective justice which might have been chosen for analysis such as theories by Jules Coleman,105 Stephen Perry,106 and Arthur Ripstein.107 The primary
101 See Lahey Estate v Craig (1992) CarswellNB 240, [25] (McLellan J); Whiten v Pilot Insurance Co (2002) CarswellOnt 537, [152] (LeBel J); Clements (Litigation Guardian of) v Clements [2012] 2 SCR 181, [7] (McLachlan CJ). 102 See Migliori v Airborne Freight Corporation (1998) 426 Mass 629, [10] (Fried J); referred to with approval in Jane Doe v Commonwealth of Massachusetts 12 Mass L Rep. 17, 2000, [13] (Grasso Jnr J); Quinn v Walsh 49 Mass App Ct 696, 2000, [5] (Duffly J); Bertocci v Indoor Sports Management Inc 14 Mass L Rep 12, 2001, [13] (Agnes Jnr J). 103 See White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, 502 (Lord Hoffman); Macfarlane v Tayside Health Board [2000] 2 AC 59 (Lord Steyn). 104 The Law Commission in the United Kingdom, for example, has recognised corrective justice as an important underlying justification for the law of negligence: see Law Commission, ‘Damages for Personal Injury: Non-Pecuniary Loss’, No. 257, 3.24; referred to with approval in Heil v Rankin [2000] PIQR Q187, Q203 (Lord Woolf MR). Similarly, in the United States, the Restatement (Third) of Torts (Liability for Physical and Emotional Harm) explicitly regards corrective justice as one of the rationales of this area of law, along with broader economic goals: § 6. 105 See Jules Coleman, Risks and Wrongs (Cambridge University Press, 1992) 482; Jules Coleman and Arthur Ripstein, ‘Mischief and Misfortune’ (1995) 41 McGill Law Journal 91; Jules Coleman, ‘The Practice of Corrective Justice’, in David Owen (ed), Philosophical Foundations of Tort Law (Clarenson, 1995); Jules Coleman, ‘Doing Away With Tort Law’ (2008) 41 Loyola of Los Angeles Law Review 1149. Coleman’s corrective justice theory of negligence views responsibility for the results of accidents as a normative concept which is concerned with responsibility for outcomes. This refers to ‘agent-specific’ reasons for action which require the person in question to compensate the victim when they are responsible for causing harm. 106 See Stephen Perry, ‘The Moral Foundations of Tort Law’ (1992) 77 Iowa Law Review 449, 488-514; Stephen Perry, ‘The Mixed Conception of Corrective Justice’ (1992) 15 Harvard Journal of Law & Public Policy 917; Stephen Perry, Loss, Agency, and Responsibility for Outcomes: Three Conceptions of Corrective Justice, in Ken Cooper-Stephenson & and Elaine Gibson (eds.), Tort Theory (Captus Press, 1993) 40-7; Stephen Perry, ‘The Distributive Turn: Mischief, Misfortune, and Tort Law’ (1996) 16 Quinnipiac Law Review 315; Stephen Perry, ‘Responsibility for Outcomes, Risks, and the Law of Torts’ in Gerald Postema, Philosophy and the Law of Torts (Cambridge University Press, 2001). 107 See Arthur Ripstein, Equality, Responsibility, and the Law (Cambridge University Press, 1999); Arthur Ripstein, Private Wrongs (Harvard University Press, 2016). According to Ripstein’s reciprocity theory claimants and defendants must be treated equally to ensure a fair balance is struck between them. Ripstein views the reasonable person concept in negligence in a Rawlsian
31 reason these theories are not analysed is that as a result of the incorporation of Weinrib’s discussion of Kant’s concept of right, Beever is able to provide a level of guidance as to moral responsibility for harm that these other theories are unable to do, particularly in cases involving complex questions of causation. It is contended in this thesis that clear principles and rules of liability are able to be suggested based on the Kantian concept of right which are morally satisfactory and which are able to respond to fears of an unfair burden on defendants, of indeterminate liability, and of an opening of the floodgates of litigation, these being concerns which have been of particular importance in relation to liability for pure psychiatric injury.
Another reason other theories of negligence are not considered in this thesis is because these theories arguably are not able to suggest an approach to the law with respect to negligently inflicted psychiatric injury which is both principled and pragmatic. For example, distributive justice theories argue that the law of negligence operates to correct departures from a previously determined ‘just’ pattern of holdings.108 Theories based on distributive justice are generally concerned with preserving and redistributing interests in property and are not well- suited to preserving and redistributing interests in physical and psychological integrity, the primary matter of concern in this thesis.109 Theories which see a role for both corrective justice and distributive justice such as Fletcher’s mixed theory are also not particularly well-suited to the purposes of this thesis. This because theories of this nature are not well-suited to accounting for the preservation and redistribution of interests in freedom from interference, the central matter of importance in this thesis.110
Goldberg and Zipursky’s civil recourse theory is described as a theory of ‘rights, wrongs and recourse’, and its proponents consider that it possesses greater explanatory power than other
sense operating to effect a desire for cooperation between all individuals in society as free and equal persons. From this perspective liability is imposed on an injurer when the injurer’s actions go further than the maximum amount of liberty that is reasonable in the circumstances and another’s interests in security are thereby affected. 108 An example of such a theory is that proposed by Bensen: Peter Benson, ‘The Basis of Corrective Justice and its Relation to Distributive Justice’ (1992) 77 Iowa Law Review 515, 531; Stephen Perry, ‘Tort Law’, in Dennis Patterson, A Companion to Philosophy of Law and Legal Theory (Blackwell, 1996). Another is Keating’s distributive justice theory: see, eg, Gregory Keating, ‘Distributive and Corrective Justice in the Tort Law of Accidents’ (2000) 74 Southern California Law Review 193, 195. 109 See Allan Beever, Forgotten Justice (Oxford University Press, 2013) ch 4. 110 It might also be argued that no persuasive justification is provided in these theories for the basis upon which it is claimed that resources have been antecedently distributed throughout society in a way which can be described as ‘just’.
32 theories such as corrective justice theories.111 This theory has much to tell us about the law of torts, providing a strong account of the bilateral structure of tort law and a good explanation of the varied remedies available in tort in addition to damages. However civil recourse theory is not particularly well-suited to this thesis because it is currently unclear whether it is a theory of justice or not. If civil recourse theory is a theory of justice, the criticism is that it may well simply collapse into one of the substantive theories of justice such as those based on corrective justice, distributive justice, or a mixture of both.112 If it is not a theory of justice, the criticism is that civil recourse theory may be an ‘unjust’ theory as it cannot provide a satisfactory reason for allowing one person to harm another person with the state’s approval.113 Accordingly this theory is currently unsuitable for the purposes of this thesis.
There are also many economic theories, such as those suggested by Guido Calabresi, Richard Posner and Steven Shavell. These theories are all concerned with the law of negligence so far as it relates to economic notions such as rationality, efficiency and optimality, and particularly to how well the law serves to achieve wider economic goals such as wealth maximisation.114
111 See Benjamin Zipursky, ‘Civil Recourse, Not Corrective Justice’ (2003) 91 The Georgetown Law Journal 695, 698; John Goldberg and Benjamin Zipursky, ‘Seeing Tort Law From the Internal Point of View: Holmes and Hart on Legal Duties’ (2006) 75 Fordham Law Review 1563; John Goldberg and Benjamin Zipursky, ‘Tort Law and Moral Luck’ (2007) 92 Cornell Law Review 1123; John Goldberg and Benjamin Zipursky, ‘Torts as Wrongs’ (2009) 88(5) Texas Law Review 917; John Goldberg and Benjamin Zipursky, ‘Civil Recourse Revisited’ (2011) 39 Florida State University Law Review 341. Proponents of this theory argue that a duty to remedy a claimant’s loss does not arise automatically in a defendant for committing a wrong. Rather, the argument is that claimants instead receive a ‘right of action’ against the defendant who has acted wrongfully which may but need not be exercised. In this way, this theory holds that upon a claimant making a successful claim the state then acts to determine and enforce this right of action against the defendant. The philosophical basis of the right of action in civil recourse theory is Lockean social contract. 112 Weinrib, for example, has made the argument that civil recourse theory can be accommodated within his theory of corrective justice. This is a claim which Goldberg and Zipursky have politely rejected: see Ernest Weinrib, ‘Civil Recourse and Corrective Justice’ (2011) 39 Florida State University Law Review 273; John Goldberg and Benjamin Zipursky, ‘Civil Recourse Revisited’ (2011) 39 Florida State University Law Review 341, 358-64. 113 See, eg, Jules Coleman and Gabriel Mendlow, ‘Theories of Tort Law’ (Fall 2010 edition) The Stanford Encyclopedia of Philosophy, Edward Zalta (ed), URL = http://plato.stanford.edu/archives/fall2010/entries/tort-theories/. 114 See Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis (Yale University Press, 1970) ch 3; Guido Calabresi, ‘The Decision for Accidents: An Approach to Nonfault Allocation of Costs’ (1965) 78(4) Harvard Law Review 713, 713; Guido Calabresi, ‘Fault, Accidents and the Wonderful World of Blum and Kalven’ (1965) 75 Yale Law Journal 216, 225; Guido Calabresi, ‘Does the Fault System Optimally Control Primary Accident Costs?’ (1968) 33 Law and Contemporary Problems 429, 429. Calabresi also discusses concepts such as enterprise liability and loss spreading: Guido Calabresi, ‘Some Thoughts on Risk Distribution and the Law of Torts’ (1961) 70 Yale Law Journal 499, 500-17, 517-34. Other
33
Whilst economic theories can tell us a great deal about the economic effects of the law of negligence they do not tell us anything which particularly relates to concepts of principle or justice. Neither are they particularly well-suited to accident cases involving momentary lapses in judgment which are commonly the cause of psychiatric injuries, being more suited to enterprises making decisions in a systematic manner.
Critical theories of negligence examine the principles and rules of tort law from the perspective of gender or race, with the particular goal of commenting on the role that context plays in the development and interpretation of these principles and rules.115 This interesting and rich area of scholarly research has much to tell us about notions of principle and justice particularly by providing a critical insight into the social constructs underlying these concepts. Feminist tort theories also have a great deal to tell us about what a gender equal justice might look like. This is particularly relevant in relation to this thesis due to the undoubtedly political concept of personal autonomy based upon corrective justice and Kantian right used in this thesis.
scholars, such as Steven Shavell and Richard Posner, have proposed economic theories of negligence which advance similar justifications for the law of negligence: see, eg, Steven Shavell, Economic Analysis of Accident Law (Harvard University Press, 1987) 8, 14, 23, 28; Richard Posner, ‘A Theory of Negligence’ (1972) 1 Journal of Legal Studies 29, 30; Richard Posner, ‘The Concept of Corrective Justice in Recent Theories of Tort Law’ (1981) 10 Journal of Legal Studies 187, 187; Richard Posner, Economic Analysis of Law (Little, Brown, 4th ed, 1992) 148; Richard Posner, ‘Wealth Maximization and Tort Law: A Philosophical Inquiry’ (1995), in David Owen, Philosophical Foundations of Tort Law (Clarendon Press, 1995) 99; William Landes & Richard Posner, The Economic Structure of Tort Law (Harvard University Press, 1987) 1. 115 See Jennifer Wriggins, ‘Towards a Feminist Revision of Torts’ (2005) 13 Journal of Gender, Social Policy & The Law 139, 142. For example feminist theories use this contextual perspective to critique the way that the law of torts operates with respect to women and suggest options for legal reform. The viewpoint underpinning theories of this kind is that many of the applicable legal doctrines in the law of torts reflect and operate to reinforce social hierarchies in society based upon gender. Some feminist tort scholars have a particular interest in the protection from emotional harm that the law of torts can offer as many of the archetypal fact scenarios in such cases involve a gendered context. It has been argued for example that claims relating to emotional harm disproportionately affect women and that therefore any reduction of liability in relation to such claims as a result affect women more than men. Feminist tort scholars regard the law of torts as being a particularly fruitful area within which to effect social change due to the inherent flexibility in this area of law because of its basis in common law: see, eg, Leslie Bender, ‘An Overview of Feminist Torts Scholarship’ (1993) 78 Cornell Law Review 575, 577; Martha Chamallas, ‘Removing Emotional Harm from the Core of Tort Law’ (2001) 54 Vanderbilt Law Review 751, 752; Joane Conaghan, ‘Tort Law and Feminist Critique’ (2003) 56(1) Current Legal Problems 175, 191-2; Jennifer Wriggins, ‘Towards a Feminist Revision of Torts’ (2005) 13 Journal of Gender, Social Policy & The Law 139, 143; Martha Chamallas and Linda Kerber, ‘Women, Mothers and the Law of Fright: A History’ (1990) 88 Michegan Law Review 814, 832. Lucinda Finley, ‘A Break in the Silence: Including Women’s Issues in a Torts Course’ (1989) 1 Yale Journal of Law & Feminism 41, 57-65.
34
However, the limits in length mean that it is beyond the scope of this thesis to consider feminist tort theories in any depth.
With this theoretical diversity in mind, it is recognised that the arguments presented in this thesis are particular to the theories presented, and that different outcomes will undoubtedly be reached using different theoretical approaches.
1.4 Research hypothesis
There are two primary hypotheses in this thesis. The first is that Beever’s theory of negligence can suggest an approach to judicial decision-making in cases of negligently inflicted psychiatric injury which is both principled and pragmatic. The approach suggested by these theories is principled because:
(i) it reflects matters of profound interpersonal morality such that outcomes reached using this approach can be described as just from the perspective of the underlying theory; and
(ii) the rules reflecting this approach are connected to the underlying justifications for the law of negligence and as such are not arbitrary or artificial.
The approach is also pragmatic because:
(i) it is clear and predictable; and
(ii) it responds to the most commonly expressed fears relating to claims for negligently inflicted psychiatric injury, namely fears of an undue burden being placed on defendants, of indeterminate liability, and of an opening of the floodgates of litigation.
The term pragmatic is used in this thesis to indicate that the application and extension of the theory presented is able to address the particular concerns which have been raised by the courts and by scholars regarding cases of negligently inflicted psychiatric injury at a theoretical or conceptual level to achieve a pragmatic result that reflects community understandings. As such,
35 the use of the term pragmatic in this thesis should be distinguished from the term as used in relation to pragmatism in the philosophical tradition.116
The second hypothesis is that Beever’s theory possesses good explanatory power in relation to claims for negligently inflicted psychiatric injury. That is, this theory provides a good basis for understanding and explaining many of the most important aspects of the leading cases in this area of law and is also consistent with the current approach taken by the High Court of Australia in the current leading common law cases of Tame v New South Wales; Annetts v Australian Stations Pty Ltd117 and Gifford v Strang Patrick Stevedoring Pty Ltd.118
Testing these hypotheses involves two distinct tasks. The first task – undertaken in Part II – involves advancing a principled approach to the law underpinned by Beever’s theory. This consists of:
(i) presenting the most important and relevant features of Beever’s theory of negligence (chapter 2); (ii) examining and responding to the theoretical critiques of this approach (chapter 3); and (iii) adapting and applying this theoretical perspective to the law relating to negligently inflicted psychiatric injury in order to suggest an approach to this area of law which is both principled and pragmatic (chapter 4).
The second task is undertaken in Part III and involves:
(i) examining the law to determine whether the approach advanced in Part II provides a suitable basis for explaining and understanding the outcomes, legal doctrines applied, and the reasons given for decision in the leading cases (chapters 5-8); and (iv) examining the civil liability legislation to determine whether this legislation reflects this approach (chapter 9).
116 See, eg, Christopher Hookway, “Pragmatism”, The Stanford Encyclopedia of Philosophy (Summer 2016 Edition), Edward N. Zalta (ed.), URL =
36
This thesis uses qualitative empirical legal research methods in order to address the two primary research hypotheses, which is appropriate when trying to increase understanding of a particular phenomenon. Qualitative empirical legal research is a process of research which does not rely on statistical evidence, instead trying to ‘capture and categorize social phenomena and their meanings’. As opposed to quantitative research, qualitative research is done in its ‘natural environment’, which is to say that the researcher does not create the environment in which the particular phenomenon being studied exists. Qualitative research also measures whether something is present or not, rather than the extent of that presence, which is the domain of quantitative research.119
Whilst this research does not relate to anything in a ‘social setting’ (the normal domain of qualitative research), it does use a qualitative method in that it analyses the doctrines and leading cases relating to negligently inflicted psychiatric injury through a ‘lens’ of Beever’s theory in order to identify whether this approach is reflected in the relevant law. The inductive reasoning that this process requires makes the qualitative empirical legal research method particularly appropriate in this thesis.120
This thesis uses a method for analysing the relevant data known as content analysis, which involves the identification of themes within particular documents. The themes which are identified relate to themes consistent with Beever’s theory of negligence. The documents relate to the doctrines of law being analysed, as well as the outcomes and judicial reasoning employed in the leading cases considered. In this sense, the method employed in this thesis may be described as interpretive. Qualitative research methods are susceptible to particular criticisms related to the nature of this type of research, one of the most common of which is that the findings generated using qualitative methods are not as valid or dependable as those in relation to analysis of quantitative data.121
119 Lisa Webley, ‘Qualitative Approaches to Empirical Legal Research’ in Peter Cane and Herbert Kritzer (eds), Oxford Handbook of Empirical Legal Research (Oxford University Press, 2010) ch 38. 120 Ibid; Kirk and Miller, Reliability and Validity in Qualitative Research (Sage Publications, 1986) 9. 121 Ibid ch 38, 12-3.
37
This thesis employs a form of interpretive legal theory, in some ways similar to the interpretive theory employed by Allan Beever in Rediscovering the Law of Negligence.122 Interpretive accounts of the law seek to understand and explain the law by focusing on its ‘significance or meaning.’123 For theorists such as Smith and Beever, interpretive accounts attempt to ‘reveal... an intelligible order in the law, so far as such order exists.’124 As Smith explains, this is done ‘by explaining why certain features of the law are important or unimportant by identifying connections between those features.’125 Interpretive accounts of the law suggest not what the law should become, but how it should be understood.126 This is an important aspect of interpretive legal theory, because a theory developed in this way can tell us not only about how the law can be interpreted in the past, but also suggest a view about how it ought to be interpreted and applied in the future.127
1.5 Selection of cases for analysis
In choosing the cases to be analysed, a number of criteria have been employed. The first criterion was that each case must have had an effect on Australian law whether or not the case was decided by an Australian court. The second was that each case must have been decided by a court of high authority. The third was that each leading case must have established a principle or rule relating to negligently inflicted psychiatric injury. The cases chosen for analysis are in the following table.
Table 1:
Case Citation Court Principle/Rule Victorian Railways (1888) App Cas 222 Privy Council Psychiatric injury without Commissioners v impact too remote from Coultas defendant’s negligence
122 Interpretive accounts seek to outline a comprehensible and organised understanding of a particular area of law: Stephen Smith, Contract Theory (Oxford University Press, 2004) 4-5; Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 21. 123 Stephen Smith, Contract Theory (Oxford University Press, 2004) 4-5; Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007). 124 Ibid. 125 Ibid. 126 Eg, see Allan Beever and Charles Rickett, ‘Interpretive Legal Theory and the Academic Lawyer’, (2005) 68(2) Modern Law Review 320, 324. 127 Ibid. There have been a number of critiques made of the interpretive legal theoretical method. These are considered and responded to in depth in chapter 3.
38
Dulieu v White & [1900] All E R Rep King’s Bench 1. Impact not required to Sons 353 Division establish duty of care 2. Psychiatric injury must be the result of fear of injury to oneself Hambrook v Stokes [1924] All ER Rep English Court 1. Fear of injury to one’s Brothers 110 of Appeal child sufficient to establish duty of care 2. Psychiatric injury must be the result of what one has witnessed with own unaided senses Chester v The (1939) 62 CLR 1 High Court of Psychiatric injury due to Council of the Australia death of a child reasonably Municipality of foreseeable only if death Waverley witnessed by claimant Hay or Bourhill v [1942] 2 All ER 396 House of 1. Psychiatric injury due to Young Lords death of a stranger reasonably foreseeable
only of death perceived by eyesight 2. Claimant must be in zone of physical danger 3. Psychiatric injury must be reasonably foreseeable to a person of normal fortitude Mount Isa Mines (1970) 125 CLR 383 High Court of Psychiatric injury due to Limited v Pusey Australia witnessing horrific injury of work colleague leading to colleague’s death reasonably foreseeable Jaensch v Coffey (1984) 155 CLR 549 High Court of Psychiatric injury due to Australia injury and death of loved
ones reasonably foreseeable where claimant directly perceives accident or immediate aftermath Tame v New South (2002) 211 CLR 317 High Court of 1. Normal fortitude, direct Wales; Annetts v Australia perception, and sudden Australian Stations shock rules not Pty Ltd independent requirements, but considerations going to an overriding test of reasonable foreseeability 2. Psychiatric injury due to death of a child reasonably foreseeable, particularly given assurances provided by defendants to claimants
39
Gifford v Strang (2003) 214 CLR 269 High Court of Psychiatric injury due to Patrick Stevedoring Australia death of a father in Pty Ltd workplace accident reasonable foreseeable
Wicks v State Rail (2010) 241 CLR 60 High Court of 1. Claimants owed duty of Authority Australia care at common law 2. Liability to claimants not denied by virtue of s 30 of the Civil Liability Act 2002 (NSW) King v Philcox (2015) 255 CLR 304 High Court of 1. Claimant owed duty of Australia care at common law 2. Liability denied as claimant unable to satisfy relationship restrictions and physical proximity restrictions in s 53(1)(a) and (b) of the Civil Liability Act 1936 (SA)
It might be asked why only twelve cases have been chosen for analysis. The reason for this is that the analysis of each case is intended to be as thorough as possible, and consequently, consideration of a greater number of cases than has been chosen is prohibited by the length of this thesis. To further elaborate, Allan Beever’s Rediscovering the Law of Negligence128 was based on a similar analytical technique being employed in this thesis. The depth of analysis used by Beever resulted in space for in-depth analysis of only five cases in the course of the development of his theory. The leading cases chosen for analysis in this thesis each played a crucial role in the development of the principles of liability in cases of negligently inflicted psychiatric injury such that it is considered that none could be safely left out of any accurate discussion of this area of law.129
128 Rediscovering the Law of Negligence (Hart Publishing, 2007). 129 The choice of these particular cases is not intended to suggest that there are no other important cases relating to this area of law. On the contrary, there are many, including Owens v Liverpool Corporation [1939] 1 KB 394, Storm v Geeves [1965] Tas SR 252, Hinz v Berry [1970] 2 QB 40, McLoughlin v O’Brian [1983] 1 AC 410, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, Page v Smith [1996] AC 155, Frost v Chief Constable of South Yorkshire Police [1998] QB 254, White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, to name a few. However, these cases were not chosen for analysis because for one reason or another, they did not satisfy all of the criteria outlined above. For example, cases such as Alcock, Page, and White are no doubt cases which have had a significant impact upon the law relating to negligently inflicted psychiatric injury. However, this impact is upon the law in England and not Australia. This was because the path taken by the House of Lords in Alcock and subsequently developed in Page and White, was not a path followed by the High Court of Australia. Furthermore, the constraints imposed by the length of this thesis mean that only a limited number of cases could be considered in any depth.
40
1.6 Framework of this thesis
This thesis is separated into four main parts. A diagrammatical representation of the parts of this thesis in relation to the two primary objectives may assist in clarifying the structure:
Part II Theoretical Part I Introduction Part III Analysis Framework Part IV Conclusion
Chapter 5 Analysis of Chapter 2 Beever's Chapter 1 Introduction Coultas, Dulieu, and Corrective Justice Theory Chapter 10 Conclusion Hambrook
Chapter 3 Critique and Chapter 6 Analysis of defence of Beever's Chester, Bourhill approach
Chapter 4 A principled and Chapter 7 Analysis of pragmatic approach to Pusey, Jaensch cases of pure pscyhiatric injury
Chapter 8 Analysis of Tame, Annetts, Gifford
Chapter 9 Analysis of civil liability legislation, Wicks, King
Part I: Introduction
Chapter 1 has provided an overview and statement of the problem that is the subject of this thesis. The purpose and objectives of this research have also been outlined, along with the primary research hypotheses, a description of the limitations of the scope of research and an outline of the research methodology used.
41
Part II: Theoretical Framework
Part II of this thesis – comprising chapters 2, 3 and 4 – addresses the first primary hypothesis of this thesis by advancing an approach to the law relating to negligently inflicted psychiatric injury which is both principled and pragmatic.
Chapter 2 outlines the relevant aspects of Beever’s theory of negligence based upon the concepts of Aristotelian corrective justice and Kantian right. The purpose of this chapter is to provide an account of Beever’s principled approach to the law of negligence so that this can be extended and applied to the law relating to negligently inflicted psychiatric injury.
Chapter 3 outlines some common critiques of Beever’s theory and advances a defence of this interpretive approach. It is argued these critiques either do not stand up to scrutiny or are themselves based on assumptions which are not uncontroversial.
Chapter 4 applies Beever’s theory to the law relating to negligently inflicted psychiatric injury. The existence and extent of a right to physical and psychological integrity are examined. The chapter concludes by outlining a principled and pragmatic approach to cases involving negligently inflicted psychiatric injury.
Part III: Analysis
Part III – consisting of chapters 5, 6, 7, 8 and 9 – is concerned with examining the second primary hypothesis of this thesis.
Chapters 5-8 analyse the leading cases in this area of law.
Chapter 5 examines Victorian Railways Commissioners v Coultas,130 Dulieu v White & Sons,131 and Hambrook v Stokes Brothers.132 Chapter 6 analyses Chester v The Council of the Municipality of Waverley,133 and Hay or Bourhill v Young.134 Chapter 7 examines Mount Isa
130 (1888) App Cas 222. 131 [1900-3] All E. R. Rep. 353. 132 [1924] All ER Rep 110. 133 (1939) 62 CLR 1. 134 [1942] 2 All ER 396.
42
Mines Limited v Pusey135 and Jaensch v Coffey.136 And Chapter 8 analyses the current leading common law cases of Tame v New South Wales; Annetts v Australian Stations Pty Ltd,137 and Gifford v Strang Patrick Stevedoring Pty Ltd.138 This analysis considers whether the legal developments in these leading cases are consistent with the approach advanced in Part II.
Chapter 9 examines the civil liability legislation from the perspective of the approach advanced in Part II. The High Court’s decisions in Wicks v State Rail Authority139 and in King v Philcox,140 both of which involve consideration of aspects of the civil liability legislation, are also analysed in this chapter.
Part IV is comprised of chapter 10, the concluding chapter. Taking into consideration the analyses in Parts II and III chapter 10 concludes that Beever’s theory of negligence suggests an approach to the law relating to negligently inflicted psychiatric injury which challenges orthodox understandings of this area law. In particular this approach challenges the commonly held view that a principled approach to this area of law cannot be pragmatic and that a pragmatic approach cannot be principled. It is further concluded that this approach is consistent with all of the expansions of liability seen the in the leading cases in this area and with the current common law approach taken in the current leading common law cases of Tame v New South Wales; Annetts v Australian Stations Pty Ltd141 and Gifford v Strang Patrick Stevedoring Pty Ltd.142
1.7 Conclusion
Orthodox understandings regarding claims for negligently inflicted psychiatric injury have regarded the notions of principle and pragmatism to be fundamentally inconsistent goals when considering an approach to the duty of care. This thesis challenges these understandings, advancing an approach based on Beever’s corrective justice theory of negligence which is both principled and pragmatic. In Part II a principled approach to cases involving negligently
135 (1970) 125 CLR 383. 136 (1984) 155 CLR 549. 137 (2002) 211 CLR 317. 138 (2003) 214 CLR 269. 139 (2010) 241 CLR 60. 140 (2015) 255 CLR 304. 141 (2002) 211 CLR 317. 142 (2003) 214 CLR 269.
43 inflicted psychiatric injury is advanced. This commences in chapter 2 which considers the most important and relevant aspects of Beever’ theory in relation to this thesis.
44
PART II THEORETICAL FRAMEWORK Chapter 2: Beever’s Principled Approach to the Law of Negligence
2.1 Introduction
This chapter provides an account of the most important and relevant aspects of Beever’s corrective justice theory of negligence. This will underpin an approach to cases of negligently inflicted psychiatric injury to be advanced in chapter 4 which is both principled and pragmatic. Beever’s Rediscovering the Law of Negligence1 and A Theory of Tort Liability2 together present a coherent theory of negligence based on Aristotelian corrective justice and Kantian right. This theory regards the imposition of legal liability as the legal instantiation of a moral obligation of the defendant to provide the claimant with a remedy such as compensation.3 The moral obligation to provide the claimant with a remedy arises due to the failure by the defendant to comply with the norm against injuring others.
This chapter is divided into two sections. It begins by considering the essential features of Beever’s principled approach to the law of negligence. This is followed by discussion as to why this approach is particularly valuable in cases where the risk of particular types of injury as a result of particular actions may not be well-understood across the general community.
2.2 Beever’s principled approach to the law of negligence
Beever presents a principled approach to the law of negligence in Rediscovering the Law of Negligence.4 This theory draws heavily on Weinrib’s Idea of Private Law5 and on the
1 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007). 2 Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016). 3 See, eg, Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 42; Ernest Weinrib, ‘The Special Morality of Tort Law’ (1989) 34 McGill Law Journal 403, 404, 406; Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1992, 2012) 2. 4 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) (‘Rediscovering’). 5 Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1992, 2012).
45
Aristotelian concept of corrective justice supplemented by the Kantian notion of right.6 In Idea of Private Law7 Weinrib presents a formalist understanding of private law which does not rely on external justifications for the law’s existence. According to Weinrib the law of negligence is to be understood as something which is not merely an expression of the rule of official authority but as a phenomenon which is deeply connected to human nature, being reflective of profound moral norms.8 When each element of the private law relationship is normatively related, they can each be justified as parts of a coherent whole. This then not only makes the law more intelligible, but also crucially provides these elements with normative force.9 On the other hand, when a justificatory consideration does not possess this normative force it is considered arbitrary and unjustified.10 When a private law relationship is coherent, every aspect of that legal relationship possesses normative force, making distinctions between claimants only for reasons of principle and justice.
The source of the moral obligation to impose liability on a particular defendant in Beever’s principled approach is Aristotle’s Nicomachean Ethics11 coupled with the legal theory developed by Immanuel Kant.12 In Book V of Nicomachean Ethics dealing with ‘moral virtue’, Aristotle outlined his concept of justice, breaking it down into two principle categories, corrective (or rectificatory) justice and distributive justice.13 For Aristotle, corrective justice was relevant to interpersonal morality, particularly in relation to transactions between individuals.14 According to the Aristotelian account of justice in interpersonal dealings, when
6 The description of Weinrib’s and Beever’s theories in this section has been published in part in Martin Allcock, ‘Corrective Justice and Kantian Right as a Mechanism to Reconcile Substantially Clashing Interests in Cases of Negligently Inflicted Psychiatric Injury’ (2015) 40 Australian Journal of Legal Philosophy 17. 7 Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1992, 2012). 8 Ibid 1. Weinrib, for one, does not regard Kantian right as ‘true’ per se, rather considering a Kantian notion of agency as being ‘presupposed’ by corrective justice. This means that Weinrib is not concerned with whether the law really is law, but is instead concerned with whether the law can be morally justified in the context of the relationship between the relevant parties: ibid xvii, xix. 9 Ibid 39. 10 Ibid. 11 See Aristotle, Ethica Nicomachea, transl David Ross, The Nicomachean Ethics of Aristotle (Oxford University Press, 1925). 12 I Kant, The Metaphysical Elements of Justice: Part 1 of the Metaphysics of Morals, transl J Ladd (Bobbs-Merril, 1965); Ernest Weinrib, ‘Corrective Justice’ (1992) 77 Iowa Law Review 403, 423. 13 See Aristotle, Ethica Nicomachea, transl David Ross, The Nicomachean Ethics of Aristotle (Oxford University Press, 1925) [1130a6]-[1134a12], 109-22. 14 Ibid [1130b18], 111.
46 transactions between individuals lead to injustice, corrective justice plays a ‘rectifying part’ in restoring justice between those individuals.15
Justice between individuals is regarded in the Aristotelian understanding as a type of equality. Injustice is regarded as a type of inequality, arising ‘when one person has too much or too little relative to another.’16 Where there is an inequality between individuals, the judge tries to ‘equalise’ the inequality, taking away the assailant’s gain and restoring it to the sufferer.17 In equalising the inequality and finding a ‘just’ outcome, the judge’s role is to determine the intermediate point between loss and gain which restores the previously existing equality between the individuals.18 The concept of equality in this context is a notional type of equality, representing what the parties held prior to entering into the particular transaction in question.19
The question which arises regarding the notional equality underpinning Aristotle’s notion of corrective justice is: what is it that must be equal between the parties? This is a question which Aristotle did not address.20 Both Weinrib and Beever argue that Immanuel Kant’s concept of right provides a potential answer to this question with corrective justice involving an equality of free wills.21 Weinrib discusses the place of Kantian right within his theory in The Idea of Private Law22 outlining Kant’s notion of law as an ‘idea of reason’, beginning in the free wills of mankind and then emanating into its public confirmation as law.23 Kantian right in this
15 Ibid. It is for this reason that Aristotelian corrective justice is sometimes referred to as rectificatory justice. 16 Ibid [1131b14], 114; Ernest Weinrib, ‘Corrective Justice in a Nutshell’ (2002) 52 University of Toronto Law Journal 4, 349, 349. 17 Aristotle, Ethica Nicomachea, transl David Ross, The Nicomachean Ethics of Aristotle (Oxford University Press, 1925) [1132a2], 115. 18 Ibid. 19 Ibid. 20 Indeed, Weinrib comments that Aristotle’s notion of corrective justice is concerned only with form, being ‘devoid of a specific content’: Ernest J Weinrib, ‘Toward a Moral Theory of Negligence Law’ (1983) 2(1) Law and Philosophy 37, 40. 21 This perspective allows one to follow the development of the law from its normative beginnings in the will of individuals, all the way to its legal consequences in the manifestation of justice in legal institutions: ibid 84-5; Ernest J Weinrib, ‘The Gains and Losses of Corrective Justice’ (1994) 44 Duke Law Journal 277, 279, 282-9; Allan Beever, Forgotten Justice: Forms of Justice in the History of Legal and Political Theory (Oxford University Press, 2013) 152-7. Beever applies Weinrib’s understanding of Kantian right to the elements of negligence, and so his work is relevant at particular points. 22 Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1992, 2012). 23 Ibid 100.
47 context is understood as ‘the juridical manifestation of self-determining agency.’24 Weinrib argues that an equality of free wills means that the free actions of one must be consistent with the free actions of others. Where this is not the case, the law justifiably intervenes to undo the resulting wrong.25
In order for action to be the result of free will it is required to be ‘purposive’. Weinrib considers that a demarcating line may be drawn between purposive activity which results from a purposive being exercising free will and merely passive behaviour which is the product of a sequence of events which does not.26 Weinrib argues that only actions that are the result of purposive activity are sufficient to justify imposing liability in negligence because non- purposive behaviour is consistent with the freedom of others. Behaviour that is the result of merely passive activity does not result in injustice (justifying the law’s intervention) as it does not impinge upon the free will of others.27
The principal matter of importance for Weinrib is whether actions are consistent ‘with the freedom of all persons.’28 Weinrib explains Kant’s concept of right as ‘the sum of conditions under which the choice of one can be united with the choice of another in accordance with a
24 Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1992, 2012) 81. Weinrib argues that Kant extended Aristotle’s notions of corrective justice back to the concept of free purposiveness, stating:
the equality of corrective justice acquires its normative force from Kantian right ... [with self-determining agents being] ... duty-bound to interact with each other on terms appropriate to their equal status. Implicit in corrective justice’s relationship of doer and sufferer are the obligations incumbent in Kantian legal theory on free beings under moral laws: Ibid 83-4.
25 Ernest J Weinrib, ‘Corrective Justice’ (1992) 77 Iowa Law Review 403, 421-4; Ernest J Weinrib, ‘The Gains and Losses of Corrective Justice’ (1994) 44 Duke Law Journal 277, 279. 26 Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1992, 2012) 89. 27 Ibid 88-9. This aspect of Weinrib’s theory is consistent with Jules Coleman’s conception of negligence based on corrective justice to the extent that Coleman is of the view that wrongdoing by the defendant requires human agency: Jules L Coleman, Risks and Wrongs (Oxford University Press, 1992) 335. Coleman argues, in this regard, that a defendant can accordingly defeat a claimant’s claim in negligence where they can establish that their actions are not the result of human agency: ibid. For a critique of Coleman’s Risks and Wrongs, see generally George P Fletcher, ‘Corrective Justice For Moderns’ (1992) 106 Harvard Law Review 1658. Particularly, see Fletcher’s criticism that in Risks and Wrongs, Coleman entirely disregards the Aristotelian understanding of corrective justice: at 1666-72. 28 Ibid 94; Ernest J Weinrib, ‘Right and Advantage in Private Law’ (1989) 10 Cardozo Law Review 1283, 1291.
48 universal law of freedom.’29 Weinrib argues that the duty of care in negligence should be characterised in terms of this antecedent equality between the parties. Any disturbance of this equality by the defendant’s act of negligence is a wrong to the claimant.30 The duty of care in negligence, along with the obligation to compensate arising out the breach of this duty by the defendant, should be seen as ‘the juridical reflex of [that] antecedent obligation not to wrong.’31 The court’s task in this process is to consider the connection between the parties and the moral dimensions of that relationship, and to intervene in order to attempt to undo the harm done to the claimant by the defendant.32 The most important aspect of this idea is that the concept of right constrains free and purposive action in the name of freedom itself. This is a crucial aspect of the theories of both Weinrib and Beever in that the parties’ respective rights to freedom – of interference with bodily integrity and of movement and action – are treated as being of equal importance by the concept of right.33
Two rights are significant to private law in accordance with these theories. The first is the right which is relevant to this thesis, namely the right to ‘one’s bodily integrity’.34 In seeking to explain this right, Weinrib states:
29 Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1992, 2012) 95; quoting Immanuel Kant, Metaphysics of Morals, 56 [230]. Weinrib describes this concept as a notion of ‘equal membership in the kingdom of ends’: Ernest J Weinrib, ‘Toward a Moral Theory of Negligence Law’ (1983) 2(1) Law and Philosophy 37, 40. 30 Ernest Weinrib, ‘The Special Morality of Tort Law’ (1989) 34 McGill Law Journal 403, 409. 31 Ibid. 32 Ibid 409-10. Jules Coleman, although initially taking a contrary view (see, eg, Jules Coleman, ‘Corrective Justice and Wrongful Gain’ (1982) 11 Journal of Legal Studies 421, 425), also regards the notion of correlativity as central to liability in negligence: Jules Coleman, ‘The Mixed Conception of Corrective Justice’ (1992) 77 Iowa Law Review 427, 438; Ernest J Weinrib, ‘Correlativity, Personality, and the Emerging Consensus on Corrective Justice’ (2001) 2 Theoretical Inquiries in Law 107, 126-133. Other negligence theorists such as Arthur Ripstein have also advanced theories of negligence which embrace a notion of correlativity similar to that outlined by Weinrib: see, eg, Arthur Ripstein, Equality, Responsibility, and the Law (Cambridge University Press, 1999). For comment upon the similarities between Ripstein’s ‘principle of reciprocity’ and Weinrib’s ‘juridical conception of corrective justice’, see Ernest J Weinrib, ‘Correlativity, Personality, and the Emerging Consensus on Corrective Justice’ (2001) 2 Theoretical Inquiries in Law 107, 141. 33 Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1992, 2012) 9; Allan Beever, Forgotten Justice: Forms of Justice in the History of Legal and Political Theory (Oxford University Press, 2013) 152-7. Peter Cane regards this aspect of Weinrib’s Idea of Private Law as ‘difficult to the point of obscurity’: Peter Cane, ‘Corrective Justice and Correlativity in Private Law’ (1996) 16 Oxford Journal of Legal Studies 471, 487. 34 Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1992, 2012) 128. The second is the right to ‘external objects of the will’. This right has no bearing on the subject matter of this thesis.
49
The body houses the free will and is the organ of its purposes. Thus every human being has an immediate – or, as Kant puts it, an ‘innate’ – right to the security of his or her physical constitution against injury and constraint by another ….35
The right to bodily integrity places others under a correlative duty not to interfere with this right, with a breach of this duty being seen as ‘incompatible with the equality of the interacting parties as free purposive beings’.36 The law of negligence then reflects the right to bodily integrity.37 Beever develops this argument in A Theory of Tort Liability38 arguing that the law protects bodily integrity not because the right to bodily integrity is the basis for the law but because it protects something more fundamental, the right to control the use of one’s body.39 According to this perspective, the commitment to ‘equal maximum freedom’ in Kant’s Metaphysics of Morals gives rise to one principal right: the right to freedom, or the right to ‘independence from being constrained by another’s choice’.40 Beever explains, ‘The innate right generates an entitlement to be free of constraint imposed by the choices of others’.41 According to this understanding the right cannot be violated unless the choices of one person are constrained by the actions of another, with this amounting to moral constraint of the will of the other.42 This is the sense in which this perspective views wrongs.
According to Beever’s perspective each person has complete freedom to act in any way they so choose as long as they do not by their actions impinge on the freedom of others.43 Injury is conceptualised as the deprivation of another’s means to realise their purposes.44 Wrongdoing
35 Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1992, 2012) 128. 36 Ibid. 37 The second right, being the right to ‘external objects of the will’, is reflected in the law of property and contract. In relation to this second kind of right, Weinrib states that this includes the rights to own property and the rights to have contracts performed: ibid. Other negligence theorists, such as Jules Coleman, also argue that loss in negligence amounts to more than simple factual loss, being instead the infringement of a right held by the plaintiff: see, eg, Jules L Coleman, Risks and Wrongs (Oxford University Press, 1992) 331. For Coleman, when a right of the plaintiff is wrongfully infringed by the defendant, justice imposes a duty of repair on the defendant. It is in this sense that Coleman defines the term ‘wrong’; that is, wrongs are ‘actions contrary to rights’: ibid 332. 38 Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016) 19. 39 Beever argues that the law protects against actions which put one’s body to the purposes of another without consent: see Allan Beever, ‘What Does Tort Law Protect?’ (forthcoming) Singapore Journal of Legal Studies (pages 10 and 11 of original manuscript). 40 Ibid. 41 Ibid. 42 Ibid. 43 Ibid 20. Beever calls this the ‘principle of innocence’: ibid. 44 Ibid chapter 12.
50 in negligence occurs when a defendant interferes with the claimant’s freedom to pursue their own purposes. In negligence this occurs in a way which is unintentional, which is to say that the defendant inadvertently constrains the choices of the claimant whilst pursuing their own purposes.45
In Rediscovering, Beever argues that the law of negligence can be understood by considering one overarching question: whether the defendant created an unreasonable risk of the claimant’s injury. This broad question incorporates three enquiries: whether the defendant created an unreasonable risk; whether the claimant was placed at an unreasonable risk; and whether there was an unreasonable risk of the claimant’s injury.46
When the defendant has created an unreasonable risk, Beever is of the view that it is necessary to consider whether the defendant has met the required standard of care. This requires considering the defendant’s actions against the objective standard of the hypothetical reasonable person, a standard required by corrective justice. The questions of whether the claimant was placed at an unreasonable risk – relevant to considering whether the claimant was owed a duty of care – and whether there was an unreasonable risk of the claimant’s injury – relevant to remoteness – are related to establishing whether the necessary normative connection between the defendant’s actions and the claimant’s injury can be established.47
Beever is of the view that the standard of care is not something which is simply relevant to whether the defendant has breached the duty of care, but is central to understanding negligence, having relevance to the questions of both duty and remoteness. He argues that the appropriate time to apply to the standard of care is when the defendant has ‘acted’, that is, when the defendant has ‘manifested their will in action.’48 As only ‘actions’ can give rise to liability (whereas ‘mere behaviours’ cannot), it is only when there has been the manifestation of will in action that moral responsibility may be laid at the feet of the ‘acting’ party. Objects not capable of exercising free will whilst nonetheless capable of causing injury in some way (such as a tree falling on someone and injuring them) cannot be morally responsible for causing that injury.49 In this context, Beever argues that the legal distinction between misfeasance and nonfeasance
45 Ibid. 46 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 37. 47 Ibid. 48 Ibid 74. 49 Ibid.
51 reflects the distinction between actions causing loss involving the violation of the rights of another, and actions causing loss although not involving the violation of another’s rights.50
The appropriate standard of care as far as corrective justice is concerned is an objective standard: the standard of the ‘ordinary reasonable person’ as it is this standard which treats the parties’ respective interests as being of equal importance in the eyes of the law. Beever regards the objective standard of the hypothetical reasonable person as a standard which reflects the normative equality of corrective justice and Kantian right embedded in the law. This is because it is this standard which identifies the point between the parties at which equal maximum freedom is achieved.51 This is an impersonal normative standard which is generalisable across the whole of the community and determines the point at which one person may pursue their own purposes ‘at the expense of another’.52 This test, which is ‘a value judgment about how people should behave’,53 sometimes benefits claimants (such as when the defendant does not possess the ability to exercise reasonable care) and at other times benefits defendants (such as when the defendant possesses more than sufficient ability to exercise reasonable care).54 To allow the extent of the claimant’s rights to be determined by the peculiarities of the defendant is, according to Beever, ‘incompatible with the formal equality of the parties imbedded in the law.’ An objective standard on the other hand treats the parties equally as it ‘mediates between the interests of the parties.’55 This standard is justifiably adjusted in accordance with corrective justice when it will treat the parties not as equals. This will occur when the idiosyncrasies of either of the parties affects the normative relationship between them.56
50 Ibid 217. 51 Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016) chapter 12. 52 Ibid. 53 Ibid. 54 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 79. 55 Ibid 78-84. As explained by Beever, an objective standard ‘sets the rights and duties of the parties, not by reference to the defendant alone (as does the subjective standard), nor by reference to the claimant alone (as does strict liability),…but by reference to a hypothetical person who embodies a standard universalisable across the community as a whole’: at 83. This view accords with the perspective advanced by Weinrib: Ernest J Weinrib, ‘Toward a Moral Theory of Negligence Law’ (1983) 2(1) Law and Philosophy 37, 51. 56 Ibid 87-96. This will occur when the idiosyncrasies of one of the parties forms an essential part of the common purpose bringing the parties together: Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016) ch 12.
52
Beever argues that his principled approach to the law of negligence is exemplified in five well- known and important negligence cases: Donoghue v Stevenson,57 Palsgraf v Long Island Railroad Co,58 Bolton v Stone,59 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1))60 and Overseas Tankship (UK) Ltd v The Miller Steamship (The Wagon Mound (No 2)).61
Beever argues that the standard of care that most reflects the attempt to achieve normative equality between the parties when considering the authorities is Lord Reid’s judgments in (The Wagon Mound (No 2)62 and in Bolton v Stone.63 In Bolton Lord Reid held that the level of risk created by the defendant was to be determined by considering the likelihood of risk and seriousness of the harm that would likely arise if the risk was to materialise.64 His Honour’s distinction between real risks and fantastic or far-fetched risks in The Wagon Mound (No 2) is considered by Beever to be an attempt to give the parties maximum equal freedom.65
Beever further argues the approaches taken by Lord Atkin in Donoghue v Stevenson66 and by Cardozo CJ in Palsgraf v Long Island Railroad Co67 to the existence of the duty of care are consistent with this conception of corrective justice.68 In Donoghue, Lord Atkin proposed a general test of reasonable foreseeability when he stated:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – 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 into question.69
57 [1932] AC 562. 58 162 NE 99 (NT CA 1928). 59 [1951] AC 850. 60 [1961] AC 388. 61 [1967] 1 AC 617; Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 28-9. 62 [1967] 1 AC 617. 63 [1951] AC 850 (‘Bolton’). 64 Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016) chapter 12. 65 Ibid. 66 [1932] AC 562 (‘Donoghue’). 67 162 NE 99, 99 (NY CA 1928) 101 (‘Palsgraf’). 68 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 119, 126; Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016) chapter 12. 69 Donoghue v Stevenson [1932] AC 562, 580.
53
The reason given by Lord Atkin for this was ‘no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.’70 This according to Beever is a broad conception of negligence resulting from Lord Atkin’s view that ‘in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances.’71 Beever regards this view as consistent with his view that law is by its very nature ‘general principle’,72 meaning that arbitrary rules cannot form part of the law.73 This does not mean that where law is made up of general principles without arbitrary rules liability will be unlimited. On the contrary, Beever considers that the role of general principle is to also determine the boundaries of liability.74 Beever states:
It would be inconsistent with the nature of legal principle to hold that those principles, rightly understood, are incapable of determining the sphere of liability so that liability would be, without the addition of policy, unlimited ... The task of legal principle must be to discover the conceptual boundaries of liability.75
Relating this view then to Lord Atkin’s judgment in Donoghue, Beever regards the role of legal principle as being to make clear the boundaries of liability, in a way which explains why those boundaries are where they are. Where a particular legal principle results in indeterminate liability Beever argues that that legal principle must, as a result, be incorrect.76 Beever also regards Cardozo CJ’s judgment in Palsgraf as reflecting corrective justice and Kantian right in
70 Ibid. 71 Ibid. 72 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 119. 73 Ibid 121. 74 Ibid 119. 75 Ibid 122. 76 Ibid 125. Beever further explains:
In Lord Atkin’s view, then, the point of legal principle is to determine the frontiers of liability, to elucidate the boundaries of legal responsibility. The task of legal principle is to tell what the law is and, importantly, why it is that way. Accordingly, if legal principles generate indeterminate liability, then they must be the wrong principles. Not wrong, or not merely wrong, as a matter of policy, but wrong as a matter of principle. The fact that a suggested set of principles generates indeterminate liability constitutes a reductio ad absurdum of that suggested set: at 125.
54 relation to the duty of care question,77 particularly in identifying risk as a relational concept. This can be understood by considering the following passage from Cardozo CJ’s judgment:
Negligence, like risk, is ... a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all...Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one’s bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm is not wilful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Affront to personality is still the keynote of the wrong ... The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause of action is to ignore the fundamental difference between tort and crime ... He sues for breach of a duty owing to himself.78
Viewing risk as a relational concept in this manner allows the duty of care to also be seen as a relational concept, in the sense that the duty to be observed in negligence is defined by the risk that can be reasonably recognised.79 This is an approach which consequently requires fault in order to ground liability.80 The approach to remoteness consistent with corrective justice as far
77 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 125; Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016) ch 12. 78 Palsgraf v Long Island Railroad Co 162 NE 99, 99 (NY CA 1928) 101; Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 126. 79 Cardozo J himself stated in this regard that ‘the risk reasonably to be perceived defines the duty to be obeyed’: Palsgraf v Long Island Railroad Co 162 NE 99, 99 (NY CA 1928) 101. It has been argued that the Cardozo J did not intend his judgment in Palsgraf to be based on corrective justice, instead, regarding matters such as ‘community standards’ as also relevant in the process of judging: see Mark Lunney, ‘Counterfactuals and Corrective Justice: Legal History and Allan Beever’s Rediscovering the Law of Negligence’ (2009) 17 Torts Law Journal 219, 236. This critique is considered further in chapter 3. 80 This means that strict liability will generally be inconsistent with the demands of corrective justice: see, eg, Stephen R Perry, ‘The Impossibility of Strict Liability’ (1988) 1(2) Canadian Journal of Law and Jurisprudence 147, 147. Indeed, Perry argues that there was no moral or economic justification for imposing strict liability in tort: Stephen R Perry, ‘The Impossibility of Strict Liability’ (1988) 1(2) Canadian Journal of Law and Jurisprudence 147. For an opposing perspective, see Richard Epstein, ‘A Theory of Strict Liability’ (1973) 2 Journal of Legal Studies 151.
55 as Beever is concerned is the approach taken by Viscount Simonds in The Wagon Mound (No 1):81
It is a principle of civil liability ... that a man must be considered responsible for the probable consequences of his act. To demand more of him is too harsh a rule. To demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour. This concept, applied to the slowly developing law of negligence has led to a great variety of expressions which can, as it appears to their Lordships, be harmonised with little difficulty with the single exception of the so-called rule in Polemis. For, if it is asked why a man should be responsible for the natural or probable consequences of his act (or any other similar description of them), the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged, by the standard of the reasonable man, that he ought to have foreseen them.82
Beever argues that the approach taken in The Wagon Mound (No 1)83 is in harmony with the general view stated in Donoghue v Stevenson84 and with the principles of corrective justice.85 Explaining the relational nature of risk from the perspective of corrective justice as reflected in the legal concepts of duty of care and remoteness, Beever states:
In order to be guilty of an injustice in the eyes of corrective justice, the defendant must create an unreasonable risk... that materialises in injury to the claimant. If the unreasonable risk created by the defendant is to a person other than the claimant, then the defendant’s negligence did not wrong the claimant, despite the fact that the claimant was injured. We say that the defendant did not owe the claimant a duty of care. Similarly, if the injury suffered by the claimant was not a foreseeable consequence of the defendant’s negligence, then the claimant was also not wronged, though he was injured. We say that the claimant’s injury was too remote.86
81 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No 1) [1961] AC 388. 82 Ibid; Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 131. 83 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No 1) [1961] AC 388. 84 [1932] AC 562, 580 (Lord Atkin). 85 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 132. 86 Ibid.
56
Accordingly, Beever’s principled approach weaves the normative discussion of the Kantian notion of right operating within a framework of corrective justice into some of the most fundamental doctrinal aspects of the law of negligence, contending that these features of the law can be understood in normative terms.
2.3 Implications for cases where the risk of particular injuries as a result of particular actions may not be appreciable in the general community
Beever’s principled approach is particularly useful in cases of negligence in which specific types of risk may not be well appreciated by the general community. This approach provides guidance as to whether a normative connection can be established between the defendant’s actions and the claimant’s injury, and therefore as to whether it can be concluded that the defendant is morally responsible for causing the claimant’s harm. In particular, Beever’s perspective suggests that where the risk of a particular type of injury, say, injury x, is not well- known across the general community to be associated with a particular action, say action y, there may be limits in the normative connection which may be made between the defendant’s actions and the claimant’s injury. This is relevant to cases including cases involving negligently inflicted psychiatric injury because, being based on community-wide norms of behaviour, it affects the extent of risk that the defendant is required to perceive and respond to.87
The applicability of this perspective to cases where the risks of particular injuries resulting from particular actions is not well-understood across the community can be related to a consideration of the extent to which the right to bodily integrity exists. The right to bodily integrity only exists to the extent to which threats to this right may be appreciated by others. As Kantian right operates within this perspective in accordance with a corrective justice framework which considers justice as a type of notional equality, the right to bodily integrity can exist only to the extent that it is consistent with the freedom of others pursuant to a universal
87 This theory may well also be particularly useful in other cases where the risk of injury is not well-known such as cases where the claimant has suffered injury due to exposure to dangerous agents. A potential example may be cases of mesothelioma resulting from exposure to asbestos. For a discussion of claims of negligently caused asbestosis, see Ray Ryan and Des Ryan, ‘Asbestosis Litigation and the Requirements of the Negligence Action: New Developments in Irish and English Law’ (2007) 2(3) Quarterly Review of Tort Law 10; George Robertson Murphy III, ‘Asbestosis Litigation: Prescription, Contribution, Exposure, Insurance, and The Public Interest - A Casenote on Cole v Celotex Corp’ (1993) 54 Louisiana Law Review 467.
57 law of freedom.88 The defendant has the right to determine his or her own ends in any way they choose, as long as they do not, by their actions freely chosen, impinge upon another’s right to bodily integrity or other right. As a defendant’s freedom of action coexists with the claimant’s right to bodily integrity pursuant to a universal law of freedom, the extent to which the right to bodily integrity exists pursuant to these theories must be limited in circumstances where the risk of a particular injury as a result of particular actions is not well-known across the general community. In particular, where there is a limited ability across the general community that action x may cause injury y, there must, as a matter of logic, be a limit to the extent to which a person who performs act x can be held to have interfered with another’s ability to achieve their own purposes in causing injury y to that other person.
This then must affect the objective assessment of what a reasonable person in the defendant's position is expected to foresee, that is, the point at which the norm against injuring is set. The requirement for formal transactional equality between the parties means that the reasonable person can only be considered to be morally responsible for causing harm to another when the risk of particular injury x was commonly appreciable as a result of action y. To expect a greater ability to appreciate risk than this will impinge upon the defendant’s freedom of action; to expect a lower ability will impinge upon the claimant’s right to bodily integrity. This points to the level of ability to appreciate harm to others expected according to corrective justice and Kantian right which in turn determines whether the defendant’s actions amount to negligence.
In relation to the assessments of duty and remoteness, if it is not well-known across the general community that there is a risk of injury x as a result action y, this will affect the assessment of the morality of the defendant’s actions in accordance with corrective justice. That is, the normative connection between the defendant’s actions and the claimant’s injury will be affected. First this will affect the assessment of whether the claimant was placed at an unreasonable risk and as such the question of whether the claimant was owed a duty of care. And second it will affect the question of whether there was an unreasonable risk of the claimant’s particular injury, relevant to remoteness.89
88 This was discussed above at section 2.2. 89 See Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 37.
58
This is important because it suggests a limit on the test of reasonable foreseeability which, rather than being arbitrary, is based on the same principles which justify the cause of action itself. This argument requires further development, which will be undertaken in chapter 4.
2.4 Conclusion
This chapter has served to provide an account of Beever’s principled approach to the law of negligence. The relevant core features of this perspective have been outlined. It has been argued that Beever’s principled approach provides an appropriate theoretical perspective from which to suggest an approach to cases of negligently inflicted psychiatric injury. This perspective suggests that limitations on the extent to which the ordinary member of the community is able to appreciate particular types of risk as a result of specific actions has an important effect on the point at which the community wide norm against injuring is set. This chapter serves as a platform from which Beever’s theory can be extended and applied to cases of negligently inflicted psychiatric injury in chapter 4. Before this is done, it is necessary in the following chapter to consider and respond to the common critiques made of this theory.
59
Chapter 3: Critique and Defence of Weinrib’s and Beever’s Interpretive Approaches
3.1 Introduction
There have been a number of rights-based theories of private law which have emerged in recent years.1 Weinrib advanced his theory in response to the ‘law and economics’ movement so prevalent in the United States of America in the 1960s and the 1970s, whilst Beever advanced his theory in particular in response to the perceived limitations of the law of negligence based on realist perspectives of law.2 Beever’s theory in particular has included a narrative about notions of principle and policy in legal reasoning which has attracted criticism from Australian tort theorists. Prior to this, Weinrib’s theory has attracted similar criticisms from American and Canadian scholars.
Weinrib’s and Beever’s rights-based perspectives are considered controversial amongst many tort theorists, in particular by those taking a legal realist or legal positivist perspective, who regard the adherence to formalism and doctrine by rights theorists such as Weinrib and Beever as an imperfect reflection of what judges actually do in real cases.3 Realist opposition to rights- based theories of law is not a new phenomenon4 and with current legal thought in Australia regarding the law of negligence being heavily influenced by legal realists, it comes as no surprise that there has been opposition to Weinrib’s and Beever’s rights-based theories.5
1 See, eg, R Stevens, Torts and Rights (Oxford University Press, 2007); N McBride and R Bagshaw, Tort Law (Pearson, 2008); Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1992, 2012); Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007). 2 R Brown, Rediscovering the Law of Negligence (Book Review) (2008) 46(1) Alberta Law Review 235, 235-6; Dan Priel, Torts, Rights and Right-Wing Ideology (2011) 19 Torts Law Journal 1, 1-4. 3 Legal realism is an approach to legal scholarship which argues generally that outcomes in particular cases have more to do with matters of public policy, perceptions of fairness, and the inherent biases of individual judges than to do with the application of abstract legal doctrine. Famous adherents to such a view include Oliver Wendell-Holmes Jnr: Brian Bix, Jurisprudence: Theory and Context (Sweet & Maxwell, 3rd ed, 2003) 177-9. 4 For example, American realists were critical of concepts such as formalism at the turn of the twentieth century: ibid 179-83. 5 Former Justice of the High Court of Australia, Honourable Michael Kirby, noted that most of the current judges in Australia received their legal educations at the time when legal realist John
60
Opposition to interpretive approaches of law has also been seen in the context of wider jurisprudential debates, particularly from those who identify as legal positivists.6
In this chapter, five common criticisms made regarding Weinrib’s and Beever’s theories are outlined and considered. It is then argued that these criticisms largely stem from a disagreement about the conditions of legal validity and are therefore not as effective as they may initially appear. It is contended that these critiques talk past the interpretive theories advanced by Weinrib and Beever as they take as their starting point theoretical positions which are not adopted by those employing interpretive techniques.7
3.2 Common criticisms of Weinrib’s and Beever’s theories
There are five criticisms commonly made of Weinrib’s and Beever’s theories. These are:
(i) these theories do not reflect the law as it actually exists, in terms of both the analysis of the doctrines of negligence, and of the analysis of facts and findings of particular cases;
(ii) there is no meaningful distinction between the concepts of principle and policy used by Weinrib and by Beever;
(iii) the concept of Kantian right is ambiguous and therefore no better a basis upon which to make laws than any other;
Fleming’s Fleming on Torts was the standard torts text in Australian law schools. He noted Fleming’s realist influence on his own analysis of the law of torts, as well as on generations of Australian lawyers and judges: Hon Justice Michael Kirby, ‘Comparativism, Realism and the Economic Factor – Fleming’s Legacy’, High Court of Australia website: http://www.hcourt.gov.au/assets/publications/speeches/former- justices/kirbyj/kirbyj_fleming.htm. 6 This can be seen in the context of the debates between followers of Hart and Dworkin. For a summary of these debates, see Scott J Shapiro, ‘The “Hart-Dworkin” Debate: A Short Guide for the Perplexed’ (Public Law and Legal Theory Working Paper Series, Working Paper No. 77, March 2007). Legal positivism is currently the orthodox understanding of law in the form advanced by HLA Hart and developed ‘in its strongest form’ by Joseph Raz. Positivism regards law as a socially constructed phenomenon which can be identified without having recourse to matters of morality: Nicos Stavropoulos, ‘Legal Interpretivism’, The Stanford Encyclopedia of Philosophy (Summer 2014 Edition), Edward N. Zalta (ed.): http://plato.stanford.edu/archives/sum2014/entries/law-interpretivist/. 7 The arguments presented in this chapter have been published in Martin Allcock, ‘In Defence of Weinrib’s and Beever’s Interpretive Theories of Negligence’ (2017) 24 Torts Law Journal 125.
61
(iv) the concept of Kantian right is external to the law and therefore no more appropriate a basis upon which to decide cases than other notions external to the law, such as notions of policy; and
(v) the concept of Kantian right is a political concept which is accordingly no better than any other political concept argued to underpin the law.
3.2.1 Theory does not reflect law as it actually exists – interpretive theory tautological
A common objection to Weinrib’s and Beever’s theories is the argument that that they do not reflect the law ‘as it is’ in the real world. The criticism is that these theories focus only on those aspects of the law of negligence which neatly fit within the doctrinal limits of the theories, whilst ignoring or explaining away those aspects which do not. Beever’s Rediscovering the Law of Negligence, for example, has been criticised for dismissing or ignoring cases which are not considered by him to be central to his view, thereby presenting a selective view of the law.8 In relation to Weinrib, the argument has been made that there is a lack of empirical evidence supporting his contentions.9 In relation to Beever, the argument is that his analysis is subjective and incomplete.10 This is a criticism which takes aim at the formalist nature of Weinrib’s and Beever’s theories, arguing that these perspectives simply assume what they set out to prove.
8 See, eg, Prue Vines, ‘Rediscovering the Law of Negligence (Book Review)’ (2008) 16 Torts Law Journal 182, 182; Peter Cane, ‘Rights in Private Law’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012) 40; Christian Witting, ‘The House that Dr Beever Built: Corrective Justice, Principle and the Law of Negligence’ (2008) 71(4) Modern Law Review 621, 635-7; Mark Lunney, ‘Counterfactuals and Corrective Justice: Legal History and Allan Beever’s Rediscovering the Law of Negligence’ (2009) 17 Torts Law Journal 219, 224-33. 9 For arguments of this nature, see George Brencher, ‘Formalism, Positivism, and Natural Law Theory: Will the Real Ernest Weinrib Please Come Forward?’ (1992) 42 University of Toronto Law Journal 318, 343-4; Allan C Hutchinson, ‘The Importance of Not Being Ernest’ (1989) 34 McGill Law Journal 233, 245-9; Stephen R Perry, ‘Professor Weinrib’s Formalism’ (1993) 16 Harvard Journal of Law and Public Policy 597, 599-600; Jane Stapleton, ‘Evaluating Goldberg and Zipursky’s Civil Recourse Theory’ (2006) 75 Fordham Law Review 1529, 1537-8; Robert L Rabin, ‘Law for Law’s Sake’ (1996) 105 The Yale Law Journal 2261; Peter Cane, ‘The Anatomy of Private Law Theory: A 25th Anniversary Essay’ (2005) 25 Oxford Journal of Legal Studies 203, 206-9. 10 See, eg, Christian Witting, ‘The House that Dr Beever Built: Corrective Justice, Principle and the Law of Negligence’ (2008) 71(4) Modern Law Review 621, 630-9; Prue Vines, ‘Rediscovering the Law of Negligence (Book Review)’ (2008) 16 Torts Law Journal 182, 182; Peter Cane, ‘Rights in Private Law’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012) 40.
62
Weinrib’s and Beever’s use of interpretive methods is one of the primary reasons for this criticism.
Beever regards such concerns as misplaced principally because they result from a misunderstanding of what is at the heart of legal theory, namely, an attempt by the theorist to provide an account of the law as a normative enterprise. Beever has responded to criticisms of this kind by arguing that a normatively coherent theory of negligence is not likely to fit with all of the cases, but that this does not necessarily demonstrate that the theory in question is without explanatory power.11 This argument makes two particular claims which relate to the general nature of interpretive theories. The first is that an interpretive theory may hold that some cases are more important than others. And the second is that the notion of explanatory power relates, not to explaining each and every relevant case which has been decided, but also to providing normative justification for the rules applied in the most important cases.
The problem that many scholars have with Weinrib’s and Beever’s theories relates principally to their use of interpretive methods. Beever responds to this general criticism by explaining that the process of reflective equilibrium involves testing one’s moral intuitions against one’s other moral intuitions or theories. Where there is inconsistency between one’s moral intuitions or theories, one can amend the theory to take into account the intuitions, reject those intuitions entirely, or do a combination of both, partially revising the theory and partially rejecting the intuitions. With respect to applying this process in developing his legal theory, Beever explains that one can begin with the case law (in place of moral intuition), and test the fit of this case law with the theory. This will inevitably result in there being on occasions a poor fit between the theory and the case law. Beever’s solution to this problem, bearing in mind that one cannot revise the case law in the same manner as one can simply revise one’s moral intuitions, is to consider some cases as more (or less) important than others, and to consider some cases as being wrongly decided.12
This is an approach which many scholars find particularly jarring. One can choose to reject one’s moral intuitions. However, many legal scholars are not comfortable rejecting previously accepted common law rules and principles because these parts of the law do not fit a particular
11 Allan Beever and Charles Rickett make this argument in ‘Interpretive Legal Theory and the Academic Lawyer’ (2005) 68(2) Modern Law Review 320. 12 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 27-8.
63 theory. Beever is convinced that a theory of negligence that will fit with all cases is almost certainly not possible.13 Moreover, Beever also rejects the argument that the theory which should be accepted is the theory which best fits with the case law.14 The reason provided for this is that some cases are more important than others.15 Accordingly, Beever’s theory is developed satisfying the criterion of fit and transparency in relation to what he considers to be all of the central cases and many (though not all) of the standard cases.16 Those cases which do not fit with Beever’s theory, such as some controversial cases (cases dealing with the thin skull rule and disappointed beneficiary cases) Beever explains as being wrongly decided.17 Beever foresaw the potential for criticism in using this technique, recognising that some may see a ‘sleight of hand’ in the rejection or marginalisation of cases which did not fit with his theory.18 Beever’s response to such a potential claim is to argue that in order to prove that a case is put into an inappropriate category, it is necessary to develop a rival theory which puts the case in the more appropriate category and does so in a way which is better able to explain the law.19
It is important to recognise that from an interpretivist perspective inconsistency between a theoretical account and the positive law does not disprove the theory. Rather, such divergences represent a departure from the law as a normative system. It must also be made clear that Beever does not simply dismiss as unimportant anything that doesn’t fit his theory. Rather, he is attempting to provide a plausible perspective of the law which is normatively coherent. In Beever’s words: ‘The theorist is not trying to capture every element of the positive law, still less the daily grind of practice. She is trying to capture the law qua normative enterprise.’20 Having said that, it would seem to be the case, at least as a matter of intuition, that a legal theory should be able to explain the orthodox aspects of the particular law being considered, and the greater the deviation between the theory and the law, the more convincing the explanation would need to be as to why the law is arguably ‘mistaken’. Otherwise, it would appear that the very claim that law is a normative enterprise is weakened.
13 Ibid 31. 14 Ibid. 15 Ibid. Beever explains: ‘Not all cases are created equal. It is more important that the theory fit the central cases than the standard cases, the standard cases than the controversial cases, and the controversial cases than the divisive cases’: ibid. 16 Ibid. 17 Ibid 32. 18 Ibid. 19 Ibid. 20 Allan Beever, ‘Torts and Wrongs’ (forthcoming book chapter) (page 9 of original manuscript).
64
There are two reasons why this general category of criticisms of Weinrib’s and Beever’s theories do not affect this thesis. The first is that the cases chosen for analysis in this thesis are all leading cases in relation to negligently inflicted psychiatric injury. That is, these cases represent an orthodox understanding of the development of the law in Australia, and are discussed in most, if not all, treatments of this area of law. Indeed, it is difficult to envisage a competent treatment of this area of law in the absence of any of these cases. It will be shown in chapters 5 to 9 that there are many aspects of these leading cases and the individual judgments within them that are consistent with corrective justice. It will also be shown that there are some aspects of these that are not. Accordingly, it cannot be argued that a selective treatment of the law has been provided in this thesis. Furthermore, even though this thesis uses a qualitative research method, an attempt is made to test these theories by making direct connections between moral and philosophical arguments and the cases, which itself requires reference to scientific and historical evidence.
The second reason these criticisms do not affect this thesis relates to an issue within legal philosophy. It is submitted that there is a particular issue underpinning these debates which, if not dealt with directly, will result in scholars continuing to simply talk past each other. Whilst the criticism discussed above appears to relate to a debate within the realm of tort theory, it arguably relates to a wider jurisprudential debate concerning what Dworkin called the grounds of law. That is, these criticisms are the result of a fundamental disagreement between the authors of these theories and their critics about what ‘the law’ actually is. This being the case, the argument that the view of the law presented by interpretivists does not reflect the law ‘as it is’ does not register with those taking an interpretivist perspective, in the same way that the interpretivist claim that the law is more than its positive description does not register with those making the general criticism. As such, in order for this debate to be capable of any type of resolution, it is contended that the focus of enquiry should be shifted to the more theoretical question concerning valid grounds of law.
Analysis of the leading cases in chapters 5 to 9 therefore is not technically undertaken with a view to determining whether these theories really reflect the law ‘as it is’; rather, this analysis is concerned principally with whether these leading cases are consistent with a normatively coherent understanding of the law. This argument requires further development, but as it also
65 applies to other common critiques considered in this section, it is considered in greater depth below in section 3.3.
3.2.2 No meaningful distinction between principle and policy
The meaning ascribed by Weinrib and by Beever to the terms principle and policy has also been criticised as being problematic.21 In part, these theories are structured upon a distinction between these two concepts, with one being argued to be appropriate for judges to consider when making decisions, and the other not. These concepts are for Beever definitionally appropriate or inappropriate for consideration by judges; that is, a matter that is appropriate to be considered by judges is for Beever, by definition, a matter of principle. Everything else is, by definition, a matter of policy, and inappropriate for judges to consider when making decisions.22 The criticism that has been raised in relation to this position is that not everyone shares Beever’s definitions of the complex concepts of principle and policy. Indeed, it has been argued that there is no meaningful distinction between these terms.23
This type of debate is arguably another symptom of the fundamental differences in position between those such as Weinrib and Beever who take an interpretive perspective and those who do not. For some, ‘realism, a functional analysis and greater transparency in judicial reasoning represent the modern norms’.24 However, there are those who do not agree that this is the preferable approach, and Beever’s attempt to restore the concept of principle to its ‘rightful’ place in judicial reasoning can be seen in this light.25 Beever attributes realist views in the law of torts at least in part to the prominence of John Fleming’s realist torts text book The Law of
21 See, eg, Christian Witting, ‘The House that Dr Beever Built: Corrective Justice, Principle and the Law of Negligence’ (2008) 71(4) Modern Law Review 621, 624-6. 22 This is also true of Weinrib’s theory, although developed further by Beever. Crucially, it should be kept in mind that in Rediscovering Beever does not advocate considering particular considerations matters of principle or policy simply because of the application of those particular labels. Rather Beever argues that these labels can be applied to particular considerations only by virtue of argumentation as to whether they can be justified in accordance with corrective justice and Kantian right. 23 See, eg, Christian Witting, ‘The House that Dr Beever Built: Corrective Justice, Principle and the Law of Negligence’ (2008) 71(4) Modern Law Review 621, 624-6; P Cane, ‘Another Failed Sterilization’ (2004) 120 Law Quarterly Review 189, 191-3. 24 See, eg, Travel Compensation Fund v Robert Tambree (2005) 224 CLR 627, 648 (Kirby J). 25 See, eg, Justice Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 47(1) Quadrant 9.
66
Torts.26 In this influential text, Fleming made clear his disdain for the concepts of foreseeability and proximity in determining the duty of care in negligence.27 It is worth noting on this context that at least one prominent Justice of the High Court has acknowledged Fleming’s realist influence on their own analysis of the law of torts, as well as on generations of Australian lawyers and judges.28
Beever recognises that his theory of negligence is in opposition to the views put forward by legal realists such as Fleming – indeed, his theory of negligence is put forward as a response to such positions, which he argues have come to dominate the modern law of negligence in Australia.29 For Beever, the terms principle and policy are inherently value-laden, such that there can be no ‘theory neutral’ way of defining these concepts.30 Beever’s response to the above criticisms is to argue that the views advanced in relation to this point lead logically to an absurd end-point, which is that if there is no such distinction between these concepts, the law can then be anything and nothing. If there is no reason to prefer one set of reasons to another set of reasons, the law can be marshalled in such a way as to reach any conclusion one considers desirable.31
The logical consequence which follows from the argument that there is no distinction between principle and policy is that no policy arguments – in Beever’s understanding of the term i.e., arguments having no basis in corrective justice and Kantian right – are inadmissible.32 Beever argues that this perspective results in the collapse of the distinction between law and politics, and he questions whether anyone really believes that courts can consider any relevant concern
26 Beever referred to the 9th edition of this text: John Fleming, The Law of Torts (Law Book Company, 9th ed, 1998); in Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 9, fn 36. 27 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 9. 28 The Hon Justice Michael Kirby, ‘Comparativism, Realism and the Economic Factor – Fleming’s Legacy’, High Court of Australia website
67 when making decisions. It is clear to most that some moral matters should clearly not be considered by courts. For example, Beever makes the argument that it would not have been appropriate, for example, for the court in Donoghue v Stevenson33 to have considered relevant to their decision whether snails ought to be protected from negligent manufacturers on ecological grounds. Beever argues that those collapsing the distinction between principle and policy cannot explain why some policies are relevant, whilst others are not.34 However, his arguments relating to this point have not been universally accepted by scholars.
It is relatively clear that the way Weinrib and Beever use the terms principle and policy differs from the way these terms have often been used by judges and legal scholars. However, this seems to suggest only that care should be taken in how these terms are used when engaging in debate. By way of a simple example, Kirby J’s view of the meaning of the concept of legal principle outlined in his judgment in Travel Compensation Fund v Robert Tambree35 is very much at odds with the concept of legal principle put forward by Dworkin.36 Robertson’s recent theory illustrates this point well. Rather than questioning the role played by legal principle, Robertson has instead questioned the idea that matters relating to proximity and to policy are not principled. In doing so, Robertson is then able to logically conclude that matters of proximity and policy are appropriate matters to be taken into account when determining the duty of care.37
In taking issue with the idea that matters of community welfare ought not to be considered when determining the duty of care, Robertson has argued that the term policy is used in two particular ways in the context of determining a duty of care in negligence. The first of these is in referring to broad matters that tend to justify a particular outcome, such as ethical reasons.38 Legal rules of specific application therefore do not fit within this understanding of the meaning of policy.39 The second way that the term policy is used is in a restricted sense, referring to matters of ‘public interest or the welfare of the community as distinct from reasons of justice
33 [1932] AC 562. 34 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 16. 35 (2005) 224 CLR 627, 649. 36 See, eg, Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1978). 37 Andrew Robertson, ‘Justice, Community Welfare and the Duty of Care’ (2011) 127 Law Quarterly Review 370, 371. 38 Andrew Robertson, ‘Policy-Based Reasoning in Duty of Care Cases’ (2013) 33(1) Legal Studies 119, 120. 39 Ibid.
68 or fairness between the parties before the court.’40 Robertson seeks to draw a distinction between matters relating to interpersonal justice and matters relating to community welfare, both of which he sees as relevant in determining the question of the duty of care in negligence.41
Being sensitive to the importance of definitions, Robertson has noted that the meaning ascribed to the word ‘policy’ necessarily impacts greatly upon any assessments made as to whether policy is a legitimate matter to be considered by courts.42 If one gives the word ‘policy’ a meaning which relates to matters having a bearing on the interpersonal morality between the parties, it might reasonably be concluded that matters of policy (according to this definition) are routinely taken into account by courts when determining the duty of care.43 ‘Policy-free’ reasoning when determining the duty of care under such a definition of policy is clearly not desirable. Where another definition is adopted on the other hand, perhaps including matters relating to community welfare or broader ethical matters, it will then become more difficult to claim that courts routinely take into account matters of policy, and less controversial to argue that when determining the duty of care courts should not consider matters of policy.44
As Beever’s definitions of the terms principle and policy differ from the definitions of these terms used by others, it is only logical that contrasting views of the appropriate role played by those concepts in judicial reasoning will be taken.45 Having said this, there is a more important point to make in relation to the terms principle and policy. In Australian law, matters of policy are overtly considered by the High Court.46 This is especially so, for example, in relation to claims for negligently inflicted psychiatric injury.47 Butler considers a number of policy concerns as being particularly relevant to claims of negligently inflicted psychiatric injury, namely, fears of the floodgates of litigation opening, fears of indeterminate or disproportionate liability, fears of fraud, concerns relating to the potential for conflicting medical opinions, the
40 Ibid. 41 Ibid. 42 Andrew Robertson, ‘Policy-Based Reasoning in Duty of Care Cases’ (2013) 33(1) Legal Studies 119, 121. 43 Ibid 121-2. 44 Ibid. 45 That is not to say that there is no true difference in position, but simply that definitional inconsistencies can serve to obscure true differences where they may exist. 46 See, eg, Bryan v Maloney (1995) 182 CLR 609, Hill v Van Erp (1997) 188 CLR 159, and Perre v Apand Pty Ltd (1999). 47 Des Butler, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury Resulting From Negligence’ (2002) 10 Torts Law Journal 1, 1.
69 perspective that psychiatric injury is not worthy of compensation, concerns relating to victims being only ‘secondary’ victims, and concerns that litigation may have an effect on the course of the injury itself.48 These considerations have routinely been taken into account by courts in Australia and England, and as such, claims that policy is not legitimately taken into account by judges appear to be misguided on the one hand (if the aim is to describe the law ‘as it is’) or prescriptive on the other.
Beever responds to such critiques by arguing that a legal theory is not required to tally with every case, and that especially when the theory is interpretive this is unlikely to occur. Rather than extending Beever’s argument with regard to this criticism, it is instead argued in this section that a focus on the distinction between principle and policy perhaps unnecessarily distracts from the matter of core importance to these theories. In particular, it is contended that the real issue so far as these theories are concerned is whether the consideration in question – whether described as being one of principle or policy – is relevant to the relationship of risk between the parties, and therefore justifiably taken into account in such a normatively coherent system. A consideration which is internal to the parties because it is relevant in terms of the relationship of risk between them is relevant and legitimately taken into account from the perspective of corrective justice and Kantian right. Importantly, this is supportable irrespective of whether the consideration has previously been given the epithet of principle or of policy.
A good example of this is Weinrib’s distinction between relational and extra-relational public policy considerations, adopted and applied by Sharon Erbacher in her consideration of the illegality defence in negligence.49 Relational policy considerations are relevant to corrective justice as they are relevant to, and affect, the relationship of risk between the parties in some way. Extra-relational policy considerations on the other hand relate to matters external to the parties and are accordingly not relevant to corrective justice.50 Erbacher uses this type of approach to argue that the concern for legal coherence, itself a ‘policy’ concern, is one which is relevant to the relationship between the parties and therefore relevant to corrective justice.51
48 Ibid 5. 49 See Ernest Weinrib, Corrective Justice (Oxford University Press, 2012) 66-7, 76; Sharon Erbacher, Negligence and the Wrongdoing Plaintiff: A Corrective Justice Analysis (PhD Thesis, Deakin University, 2014) 33-43. This work has now been published as Sharon Erbacher, Negligence and Illegality (Hart Publishing, 2017). 50 Ernest Weinrib, Corrective Justice (Oxford University Press, 2012) 66-7, 76. 51 See Sharon Erbacher, Negligence and the Wrongdoing Plaintiff: A Corrective Justice Analysis (PhD Thesis, Deakin University, 2014) 33-43.
70
This argument can be demonstrated by briefly considering the two most common matters of ‘policy’ in relation to claims of negligently inflicted psychiatric injury, concerns of indeterminate liability and fears of an opening of the floodgates of litigation. It is arguable that concerns of indeterminate liability are relevant to the relationship between the parties, primarily because a rule of liability which results in indeterminate liability unduly restricts the freedom of action of the defendant and gives too much freedom of action to the claimant. This is unwarranted so far as corrective justice is concerned, as it is inconsistent with the transactional equality between the parties demanded by a law which is of universal application. In this sense, whilst it is almost certainly the case that the fear of indeterminate liability in cases of negligently inflicted psychiatric injury has not been intentionally associated with the concerns of corrective justice, it can be argued that this is a policy concern which is relational and as such might justifiably be translated into a concern taken into account in a system of corrective justice. With this in mind it is notable that Beever argues that principles leading to indeterminate liability cannot be legal principles in the Kantian sense. From this perspective, concerns of indeterminate liability are directly relevant to identifying the relevant legal principles. These concerns are internal to the parties because it is only principles not leading to indeterminate liability which are consistent with the normative equality between the parties demanded by corrective justice. If this is accepted, these theories do not actually deny that such a ‘policy’ consideration can legitimately be considered by a court if considered in a way which is consistent with corrective justice.
On the other hand, fears of an opening of the floodgates may well be regarded as external to the parties, not being relevant to the relationship of risk between them. This consideration, which may be manifested as fears of overtaxing the legal system and impeding a functional society,52 is concerned only with the effect of a rule of liability on external parties and as such is irrelevant to the overriding question of whether the defendant has wronged the claimant. As such, it might be argued that this concern is an extra-relational policy concern, and not justifiably be taken into account as part of a system based on corrective justice. Accordingly, as long as attention is given to whether a particular consideration is relevant to the relationship of risk between the parties, the criticism relating to the distinction between principle and policy
52 See generally Des Butler, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury Resulting from Negligence’ (2002) 10 Torts Law Journal 1.
71 used by Weinrib and by Beever – ie, the ‘policy’ criticism – does not particularly affect this thesis.
3.2.3 Rights analysis ambiguous
It has also been argued that rights are abstract, ambiguous, and contested concepts, and that, as such, are not suitable for setting the boundaries of law.53 The central point of this common criticism is that whilst discussion of matters relating to rights is common in tort law, rights by themselves are not enough to fully explain the shape of private law.54 With these theories requiring the determination of the existence and extent of rights prior to the legal action, rights must be able to be assessed in a clear and unambiguous way in order to form the basis upon which a theory of negligence can be built. This is potentially problematic for Weinrib’s and Beever’s theories, as rights are said to occur in varying scope and degree depending on the context and whether such rights are personal or public.55
The concepts underpinning Weinrib’s and Beever’s rights perspective are undeniably abstract and ambiguous. Whether such analyses of rights are terminally so however, is another question altogether. The criticism of Weinrib’s and Beever’s theories on the ground that the notion of rights they use is abstract and ambiguous can be interpreted in one of two general ways. The first is that it might be being claimed that rights analyses are ambiguous and abstract, and nothing more. The second is that it might instead be being claimed that rights analyses are ambiguous and abstract, and will forever be so, such is the nature of rights analyses (as a category). To be clear, these two claims are very different. The argument that something is ambiguous is a very different sort of claim to the argument that something is ambiguous in a way which cannot be reduced or eliminated (i.e., it is terminally ambiguous).
In relation to the claim that rights analyses are ambiguous and abstract and nothing more, it is difficult to accept that this is what those scholars meant when they made the general critique
53 See Christian Witting, ‘The House that Dr Beever Built: Corrective Justice, Principle and the Law of Negligence’ (2008) 71(4) Modern Law Review 621, 627; François du Bois, ‘Social Purposes, Fundamental Rights and the Judicial Development of the Private Law’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012) 92; Peter Cane, ‘Rights in Private Law’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012) 62. 54 Ibid. 55 Ibid.
72 that right analyses were ambiguous and abstract. Such an argument makes no claim, or at least no convincing claim, that the subject is not worth pursuing. In relation to the claim that rights analyses are terminally ambiguous and abstract, this sort of claim seems defeatist at the very least. Whilst there is a rich history of scholarship relating to Kant’s moral philosophy there has been relatively little consideration of the concept of Kantian right in relation to specific aspects of private law at least until relatively recently. In order to accept that a concept is terminally ambiguous, one would presumably need to be aware of sustained and consistent attempts to clarify and demystify that concept which have proved unsuccessful. This certainly has not been the case, at least in relation to potential connections between corrective justice and Kantian right and specific private law doctrines.
It is contended that dismissing these theories on the grounds of the claim that they are ambiguous and abstract is unpersuasive on either interpretation of this general criticism. There is no convincing argument that the existence and extent of rights – such as the notion of Kantian right used by Weinirib and by Beever – cannot be meaningfully debated in the context of their potential expression in private law. Such debates may later be drawn upon by judges (if judges are minded to do so) in order to determine particular cases.56 Commenting on the ambiguity commonly seen when there is talk of rights, Wenar simply cautions against the risks inherent in using the term rights loosely.57 Wenar is of the view that talk of rights can indeed be ‘entirely rigorous and error-free’,58 as long as there is clarity about how ‘assertions of rights map onto the Hohfeldian incidents’.59 The challenge then in further developing these theories should be to give further attention to the nature of rights in order to clarify as much as possible their potential normative underpinnings.
There is also one further point which ought to be made in relation to this general criticism. Even though Kantian right is a concept dependent upon context which can be abstract and difficult to determine, there is nonetheless at least one crucial difference between Kantian right and policy considerations external to the relationship of risk between the parties which has a
56 Indeed, that is the primary purpose of chapter 4 of this thesis and my previous article concerning the right to physical and psychological integrity: see Martin Allcock, ‘Corrective Justice and Kantian Right as a Mechanism to Reconcile “Substantially Clashing Interests” in Cases of Negligently Inflicted Psychiatric Injury’ (2015) 40 Australian Journal of Legal Philosophy 17. 57 Leif Wenar, ‘The Nature of Rights’ (2005) 33 Philosophy and Public Affairs 223, 236. 58 Ibid 237. 59 Ibid.
73 bearing on the usefulness of each of these concepts in judicial decision-making. That difference is that the concept of policy as often used by the courts is a variable concept depending on context in a way which Kantian right is not. The crucial difference in these concepts lies in the reasoning underpinning the concept of Kantian right which does not underpin the concept of policy. Whether one is of the view that it provides a suitable basis for understanding the law of negligence or not, one cannot easily argue that Kantian right is not the result of a clear process of reasoning, however abstract it may be. In other words, it is a concept which is conceptually unified, such that any deviations from the unity of this concept can be easily identified as something which is not a ‘Kantian right’.
This means that it is a concept which can be deconstructed according to shared rules using reason and logic in order to guide reasoning in any system of decision-making which chooses to adopt this concept as its guiding principle. However, the same cannot be said for the concept of policy, which is used as a sort of a catch-all category for miscellaneous considerations which the court may wish to take into consideration. Whilst there are some concerns of policy which are clearly important concerns of courts in making decisions (eg, the desire to avoid indeterminate liability), that importance cannot conceal the fact that policy is a notion which is not conceptually unified. That is to say, one will find it extremely difficult (if not impossible) to identify the core feature of the concept of policy, common to all expressions of that concept.
3.2.4 Rights analysis external to the law
Some scholars have challenged the claim underpinning Weinrib’s and Beever’s theories that Kantian right is internal to the law.60 This is a challenge to Weinrib’s and Beever’s arguments regarding the ‘proper’ roles of principle and policy, primarily because it is the internal understanding of the concept of right which is central to the claim that rights are an appropriate
60 See, eg, George Brencher, ‘Formalism, Positivism, and Natural Law Theory: Will the Real Ernest Weinrib Please Come Forward?’ (1992) 42 University of Toronto Law Journal 318, 329; Allan C Hutchinson, ‘The Importance of Not Being Ernest’ (1989) 34 McGill Law Journal 233, 249-51; Robert L Rabin, ‘Law for Law’s Sake’ (1996) 105 The Yale Law Journal 2261, 2271; Donal Nolan and Andrew Robertson, ‘Rights and Private Law’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012) 8; TT Arvind, ‘Beyond “Right” and “Duty”: Lundstedt’s Theory of Obligations’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012) ch 6; Peter Cane, ‘Rights in Private Law’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012) 41; J Stapleton, ‘Evaluating Goldberg and Zipursky’s Civil Recourse Theory’ (2006) 75 Fordham Law Review 1529, 1538.
74 basis upon which courts can establish rules of liability in negligence.61 Weinrib and Beever set themselves a considerable task in attempting to establish that only principle is an appropriate matter for judges to base their decisions upon and that policy is not. In seeking to argue this, these theorists are forced to find a particular distinguishing feature which makes principle an appropriate matter for judges to consider, which policy does not possess. That feature is the quality of being internal to the law, possessed only by principle understood in the Kantian and corrective justice sense of the term.
By taking such an approach, Weinrib and Beever have seemingly staked everything on an interpretation of the concept of principle which is impervious to claims of it including anything at all which might be described as being external to the law. As a result, these theories are vulnerable to claims that the concept of principle used by them is based on concepts which are themselves external to the law. If such an argument is successfully advanced, then this notion of principle is potentially in no better position than any other factor external to the law, and Weinrib’s and Beever’s preference for principle becomes incompletely justified. Weinrib and Beever may well argue in response that Kantian right, in emanating from the will of individuals, is eminently internal to the law, and that any claim that Kantian right is external to the law is a fundamental misunderstanding of the nature of right. However, this appears to a number of scholars to be simply assertion based on matters relevant to moral philosophy, rather than to law.
As I have argued above in relation to the first general criticism of Weinrib’s and Beever’s theories, at the core of this debate lies a theoretical disagreement as to what constitutes valid grounds of law. The general criticism that rights analysis is external to law is underpinned by perspectives which regard the law and morality as being concepts which share no common ground. These perspectives take it is accepted and uncontroversial that Kantian right and corrective justice are concepts which are external to the law, and as such, take it as settled that the law can be identified without resort to matters of morality. However, this criticism does not acknowledge that such a position is itself not uncontroversial. As with my response to the first general criticism, this argument requires further development, which is undertaken in section 3.3.
61 Cane has argued that this actually makes such theories prescriptive, rather than descriptive: Peter Cane, ‘Rights in Private Law’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012) 41.
75
3.2.5 Rights analysis not apolitical
At the heart of Beever’s Rediscovering the Law of Negligence is an attempt to provide a view of the law of negligence which is apolitical, assigning appropriate roles to both parliament and the judiciary. It should be recognised that Beever’s theory of negligence is advanced in a particular context. Beever agrees with Fleming and Stapleton that the law of negligence cannot be anything but deeply political if it is accepted that a principled account of this area of law cannot be advanced.62 Faced with choosing to see the law as based on principle or as based on there being no distinction between principle and policy, Beever sought to establish the possibility of the former.63 The irony with Beever’s position in this regard, however, is that this view, which is a view which seeks to separate the realms of law and politics, is arguably quite a political view, in the sense that it concerns the proper roles of the organs of government functioning in a democratic system.
It has been argued that the question of what purposes rights exist to serve is fundamentally political in nature.64 The notion of rights pursuant to an Aristotelian notion of justice has been criticised on the basis that it maintains pre-existing patterns of political privilege and social hierarchy.65 In particular, it is the commitment to an individualistic view of the world which is the issue in this context, a view which is at the heart of modern liberalism and which gives little consideration to social context.66 This is a further challenge to Weinrib’s and Beever’s wider
62 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 18. 63 Ibid 18-9. 64 Peter Cane, ‘Rights in Private Law’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012) 49. Dan Priel has argued that whilst rights-based theories of negligence espouse a view of the law of negligence which is separate from politics, they are actually inherently political as they are in essence concerned with the individual’s relationship with the state, as well the function of the state: see Dan Priel, ‘Torts, Rights and Right-Wing Ideology’ (2011) 19 Torts Law Journal 1. The claim here is that rights theories are inherently right wing as they are based on a form of libertarianism. Beever rejects this view in relation to his theory on the basis that his principled approach is ‘consistent with any mainstream political philosophy’: Beever, above n 4, 53. 65 See Allan C Hutchinson, ‘The Importance of Not Being Ernest’ (1989) 34 McGill Law Journal 233, 257-60. 66 Ibid 257-8. Note: whilst Kantian morality is consistent with modern neo-liberalism, it is also consistent with other forms of liberalism which are decidedly inconsistent with neo-liberalism, such as Philip Pettit’s republican liberalism: see Philip Pettit, Republicanism: A Theory of Freedom and Government (Clarendon Press, 1997); Philip Pettit, A Theory of Freedom: From the Psychology to the Politics of Agency (Oxford University Press, 2001); Philip Pettit, ‘Law and Liberty’, in Legal Republicanism: National and International Perspectives, Samantha Besson and José Luis Martí (eds) (Oxford University Press, 2009); Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge University Press, 2012).
76 thesis that rights are an appropriate basis for establishing rules of private law because they are internal and apolitical.67 In attempting to establish that Kantian right and not the causation of harm is the matter which is of central importance in the law of negligence, Cane regards Beever’s theory as ‘externalist’ and ‘revisionist’, seeking to force the law of negligence ‘into the Procrustean bed of fundamentalism’.68
Beever anticipated such criticisms and argues in response that even if his approach is more political than he admits, it is still much less so than the modern approach to the law of negligence, as well as approaches to the law of negligence which would be based on other theories of justice, such as distributive justice.69 Beever argues that corrective justice is ‘an entirely or a relatively apolitical conception of justice, and for that reason… is appropriate for judicial decision making’.70 Beever was attempting to provide a perspective of the law which was consistent with a strict separation of powers between the judiciary, the executive and the legislature. This was made clear when Beever outlined that his theory aimed to provide a defined sphere of reasoning which was clear and morally appropriate to the law of negligence, and which did not usurp democratic authority.71
Weinrib and Beever propose a perspective of the role of judges which is based on a particular view about the distinction between judicial and parliamentary decision-making. This clearly raises fundamental questions regarding the separation of powers within a system of democracy which need to be considered in detail before any firm conclusions about the ‘correctness’ of these propositions may be reached. Having said that, the view advocated by Beever, whilst being based upon a particular political perspective, outlines a system of decision-making by judges based on Kantian right and corrective justice which seeks to discard the resort to politics at the point of the making of judicial decisions. To this extent at least, Beever’s theory may be
67 Peter Cane, ‘Rights in Private Law’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012) 47; referring to M Kramer, ‘Rights in Legal and Political Philosophy’, in K Whittington, R Kelemen and G Caldeira (eds), The Oxford Handbook of Law and Politics (Oxford University Press, 2008) 414, 421; Dan Priel, ‘Torts, Rights and Right- Wing Ideology’ (2011) 19 Torts Law Journal 1. 68 Peter Cane, ‘Rights in Private Law’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012) 62. 69 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 53. 70 Ibid 71 Ibid 19.
77 viewed as being apolitical. However, there is a more powerful response to such criticisms which is taken up further in section 3.3.
3.3 Disagreement about the conditions of legal validity – the argument from theoretical disagreement
As outlined above, it is my contention that a number of the general criticisms considered in this paper are symptomatic of a more fundamental theoretical disagreement about the grounds of law, about what conditions must be satisfied in order for law to exist. The general criticisms considered above are not uncommonly based on positivist or realist perspectives, which each take a particular theoretical view as to what conditions must be satisfied for a law to come into existence. Crucially, neither positivist nor realist perspectives regard the law as normative in the same sense that Weinrib and Beever argue the law is normative. That is to say, whilst modern positivist accounts view the law as possessing normativity, these differ from Weinrib’s and Beever’s interpretive theories in the sense that the former accounts broadly see normativity as a feature of the law which descriptive theories of the law ought to be able to account for, whereas the latter perspectives see the normativity of the law as essential to understanding the nature of law itself.72 And neither positivist nor realist perspectives take the view that coherence of the law is a necessary aspect of the law’s taking on normative power. As such, these aspects of the law are, by definition, considered external to the law.
Consider the criticism that Weinrib’s and Beever’s approaches do not conform to the law ‘as it is’. Such an argument can only be made if one considers the law ‘as it is’ to be something that can be identified using methods other than interpretive methods, that the law is not inherently normative in the sense intended by Weinrib and by Beever, and that coherence of the law is not a necessary condition in the determination of law. Interpretivists take a different perspective from legal positivists, for example, as to the necessary grounds of law (what positivists may call the conditions of legal validity). A positivist understanding of law considers that legal validity can be determined by considering only social facts, these facts being taken into account in relation to whether the rule of recognition has been satisfied. Interpretivists such as Weinrib and Beever regard normativity and coherence as being necessary parts of private law. As explained by Stavropoulos, ‘interpretivism builds moral investigation into the
72 Allan Beever, Kant’s Doctrine of Private Law (forthcoming) ch 3.
78 metaphysical one. The moral explanation that it offers assumes no nonmoral prior account of grounds and leaves no residual question about whether legal obligations have moral force.’73 As such, perspectives which do not regard normative coherence as a necessary ground of law are regarded as providing an incomplete explanation of the law.
The critique that the morality underpinning Weinrib’s and Beever’s theories is external to the law also takes it as settled that the law can be identified at a separate stage from this morality. As with the general criticism that these theories do not tally with the law as it is, this criticism judges Weinrib’s and Beever’s interpretive theories according to theoretical standards which regard normativity and coherence as concepts which are, by definition, external to the law. Likewise, the criticism that Weinrib’s and Beever’s theories are not apolitical is also affected by this point. With the morality identified by Weinrib and Beever forming part of the law, the claim that these theories are not apolitical does not carry the same force. This criticism attempts to demonstrate that Weinrib’s and Beever’s morality is as arbitrary and unprincipled as these theorists argue is the conception of policy. However, the concepts providing the moral underpinnings to Weinrib’s and Beever’s theories are internal to these theorists’ concept of law, are conceptually unified and coherent, and apply equally to all who come before the courts.
It might be argued in response to these contentions that interpretivist claims that normativity and coherence are essential aspects of the grounds of law are misguided, that there is no legitimate controversy regarding this issue. However, there are a range of reasonable theoretical perspectives concerning valid grounds of law currently within jurisprudence, and lively debate regarding Dworkin’s ‘argument from theoretical disagreement’.74 In particular, there currently is controversy about the explanatory power of any theories of law – including legal positivism and legal realism – which may be unable to account for the common phenomenon of theoretical disagreement amongst legal officials.75 To understand this
73 Nicos Stavropoulos, ‘Legal Interpretivism’, The Stanford Encyclopedia of Philosophy (Summer 2014 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/sum2014/entries/law-interpretivist/, 3. 74 This was originally advanced by Ronald Dworkin in Law’s Empire (Harvard University Press, 1986). 75 For literature discussing the phenomenon of theoretical disagreement, see Verónica Rodríguez- Blanco, ‘‘Genuine’ Disagreements: A Realist Reinterpretation of Dworkin’ (2001) 21(4) Oxford Journal of Legal Studies 649; Dale Smith, ‘Dworkin's Theory of Law’ (2007) 22(2) Philosophy Compass 267; Brian Leiter, ‘Explaining theoretical disagreement’ (2009) The University of Chicago Law Review 1215; Jose Juan Moreso, ‘Legal Positivism and Legal Disagreements’ (2009) 22(1) Ratio Juris 62; Tim Dare, ‘Disagreeing about Disagreement in
79 controversy, Ronald Dworkin’s Law’s Empire must be briefly considered.76 Dworkin, the most well-known advocate of legal interpretivism, argued that there are two distinct types of legal disagreement. The first are disagreements about the conditions of legal validity, that is, what are the conditions which must be satisfied in order to conclude that a law is indeed a law – Dworkin called these disagreements about the ‘grounds’ of law. The second are disagreements about whether the conditions of legal validity have been satisfied in a particular case, that is, what the law is in a particular case – Dworkin called these disagreements about ‘propositions’ of law.77
Disagreement about the propositions of law, such as whether a statute prohibits driving over a particular speed, were regarded by Dworkin as ‘empirical’ disagreements. Disagreement about the grounds of law on the other hand, such as whether a particular statute or precedent are the only relevant sources of law, are ‘theoretical’ disagreements.78 Dworkin argued that theoretical disagreements could not be explained by existing theories of law, as existing theories pre- suppose that there is always agreement about the conditions of legal validity.79 Such a position is demonstrably false according to Dworkin, as theoretical disagreements in the law are commonplace.80 From this perspective, existing positive theories present a one-dimensional view of the law which does not reflect reality. More importantly, as many legal theories are based on the claim that legal officials within a particular legal system agree generally about the
Law: The Argument from Theoretical Disagreement’ (2010) 38(2) Philosophical Topics 1; Tutt, Andrew, ‘The Improbability of Positivism’ (2014) 34(2) Pace Law Review 562; Barbara Baum Levenbook, ‘Dworkin's Theoretical Disagreement Argument’ (2015) 10(1) Philosophy Compass 1; Dale Smith, ‘Agreement and Disagreement in Law’ (2015) 28(1) Canadian Journal of Law & Jurisprudence 183; Alani Golanski, ‘Nonmoral Theoretical Disagreement in Law’ (2016) 42(1) Mitchell Hamline Law Review 225; Dennis Patterson, ‘Theoretical Disagreement and Interpretation’ (2016) 16(1) Diritto e Questioni Pubbliche 201; Alani Golanski, ‘Why There is Widespread Nonmoral Theoretical Disagreement in Law’ in David A Frenkel (ed) Selected Issues in Modern Jurisprudence (Athens Institute for Education and Research, 2016) 23. 76 Ronald Dworkin, Law’s Empire (Harvard University Press, 1986). It should be noted that whilst Weinrib and Beever use an interpretive approach, Dworkin has had very little influence on Weinrib’s or Beever’s perpectives. Notwithstanding this, Dworkin’s discussion of the grounds of law is helpful in understanding the phenomenon of theoretical disagreement. 77 Ibid 4-6. 78 Ibid; Dale Smith, ‘Theoretical Disagreement and the Semantic Sting’ (2010) 30(4) Oxford Journal of Legal Studies 635, 638. 79 Ronald Dworkin, Law’s Empire (Harvard University Press, 1986) 4-6. 80 Ibid.
80 conditions of legal validity, if it can be shown that theoretical disagreements are commonplace in the law, then these theories must be considered with caution.81
Shapiro argues that theoretical disagreements are commonplace in the law, and has suggested that the adoption of an interpretive methodology – albeit underpinned by the claim that the law should be interpreted in light of stated objectives based on social facts – might be the answer to save positivism from this criticism.82 Shapiro has pointed out that positivists have made little effort to respond to Dworkin’s critique regarding theoretical disagreement, which is of concern as both exclusive and inclusive positivist accounts are particularly vulnerable to this criticism.83 Overlooking this challenge is, for Shapiro, ‘to ignore the most serious threat facing legal positivism at the beginning of the twenty-first century.’84 Smith has gone further than Shapiro, arguing that Dworkin’s argument from theoretical disagreement applies to all theories which cannot account for theoretical disagreement.85
With this in mind, it is my contention that in order for there to be any chance of general resolution on the question of whether concepts such as normativity and coherence are internal or external to private law, the focus of the debate should be shifted to the more general theoretical question of what constitutes valid grounds of law, and more particularly, on the topic of theoretical disagreement. It is suggested that this is the real issue underpinning most if not all of the common criticisms outlined in this chapter, and that unless attention is focused on this issue, scholars with an interest in the theoretical underpinnings of private law will continue to simply talk past one another.
The leading cases concerning negligently inflicted psychiatric injury lay bare widespread theoretical disagreement about the grounds of law amongst the judges deciding these cases.86 The importance of this point is twofold. First, it serves as a practical demonstration of
81 For fuller explanation of the argument from theoretical disagreement, see Dale Smith, ‘Theoretical Disagreement and the Semantic Sting’ (2010) 30(4) Oxford Journal of Legal Studies 635, 637-644. In this article, Smith contends that there a number of particular forms of theoretical disagreement: ibid 641-2. 82 Scott J Shapiro, ‘The “Hart-Dworkin” Debate: A Short Guide for the Perplexed’ (Public Law and Legal Theory Working Paper Series, Working Paper No. 77, March 2007) 41-52. 83 Ibid 38-41. 84 Ibid. 85 See Dale Smith, ‘Theoretical Disagreement and the Semantic Sting’ (2010) 30(4) Oxford Journal of Legal Studies 635, 643, 654. 86 This is commented upon the in analyses of the leading cases in Part III of this thesis.
81 theoretical disagreement about grounds of law, which undermines the theoretical assumptions underpinning the critiques made of Weinrib’s and Beever’s theories. Second, it demonstrates the value of Weinrib’s and Beever’s interpretive accounts of the law as they are able to account for the phenomenon of theoretical disagreement.87 It is therefore unsurprising that interpretive accounts of the law are not uncommon88 and that interest in interpretation in legal reasoning continues.89
3.4 Conclusion
There have been many concerns raised by scholars regarding Weinrib’s and Beever’s theories of negligence, particularly in relation to the wider thesis that corrective justice supplemented by Kantian right is the sole justification underpinning private law. The use of rationalist and interpretive techniques of reasoning has left these theories open to the criticism that they are not supported by empirical evidence. In using such techniques of reasoning, Weinrib and Beever make every effort to ensure theoretical purity, but many scholars consider the cost of this approach to be too great. Some are of the view that in not considering the fit of their theories to the case law as a matter as important as theoretical purity, Weinrib and Beever have rendered their theories prescriptive rather than descriptive. Similarly, claims that the normativity of Kantian right within a corrective justice framework is internal to a coherent and normatively justified perspective of private law are regarded as not reflecting the law as it exists in reality.
It has been argued in this thesis that many of the common criticisms of Weinrib’s and Beever’s interpretive approach are symptomatic of a more fundamental disagreement as to what
87 See Scott J Shapiro, ‘The “Hart-Dworkin” Debate: A Short Guide for the Perplexed’ (Public Law and Legal Theory Working Paper Series, Working Paper No. 77, March 2007) 42-4. The possibility of theoretical disagreement is implied in Weinrib’s and Beever’s interpretive theories because these theories take the explanation of rights and obligations pursuant to the law of negligence to include the consideration of matters of morality which are controversial: Nicos Stavropoulos, ‘Legal Interpretivism’, The Stanford Encyclopedia of Philosophy (Summer 2014 Edition), Edward N. Zalta (ed.): http://plato.stanford.edu/archives/sum2014/entries/law- interpretivist/. 88 See, eg, John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980); Cass Sunstein, the Partial Constitution (Harvard University Press, 1998); Basak Cali, ‘On Interpretivism and International Law’ (2009) 20(3) European Journal of International Law 805. 89 Nicos Stavropoulos, ‘Legal Interpretivism’, The Stanford Encyclopedia of Philosophy (Summer 2014 Edition), Edward N Zalta (ed): http://plato.stanford.edu/archives/sum2014/entries/law- interpretivist/.
82 constitutes valid grounds of law. These criticisms are often underpinned by theoretical positions which regard concepts such as coherence and normativity to be external to the law by definition. Interpretive accounts such as those advanced by Weinrib and by Beever would likely be very difficult to justify were questions regarding the valid grounds of law settled and uncontroversial. Importantly, this is not the case. There is currently lively debate regarding the issue of theoretical disagreement in law, this potentially posing a threat to those theories of law which cannot account for this common phenomenon. It is argued that unless this more fundamental theoretical issue is given greater attention, scholars interested in the theoretical underpinnings of private law risk talking past one another. As such, this chapter demonstrates that the criticisms made of Weinrib’s and Beever’s theories are perhaps not as convincing as might initially appear. This is significant to this thesis as the analysis of the law in chapters 5 to 9 is interpretive in nature.
In the following chapter an approach to cases of negligently inflicted psychiatric injury is advanced which is underpinned by Beever’s corrective justice theory of negligence.
83
Chapter 4: An Approach to Cases of Negligently Inflicted Psychiatric Injury Which is Both Principled and Pragmatic
4.1 Introduction
In this chapter an approach to cases of negligently inflicted psychiatric injury underpinned by Beever’s principled approach will be advanced. Weinrib did not comment specifically upon the rights base of negligence so far as it relates to negligently inflicted psychiatric injury. Although Beever did address this question in Rediscovering, his analysis was brief and he was non-committal on the issue of whether a right to psychological integrity is justified pursuant to Kantian right.1 In A Theory of Tort Liability Beever applied his theory to this area of law.2 This chapter attempts to extend the application of Beever’s conception of corrective justice and Kantian right so far as these apply to the right to psychological integrity and claims for negligently inflicted psychiatric injury.
An approach is advanced in this chapter which applies and extends Beever’s theory of negligence to cases involving negligently inflicted psychiatric injury. This first involves advancing the argument that a right to psychological integrity exists pursuant to corrective justice and Kantian right. It also involves exploring the normative limits of this right in light of the normative equality which exists between the parties pursuant to Beever’s theoretical approach. It will be argued that a right to physical and psychological integrity exists in Australia, and, following the exploration of the normative limits of this right, an approach to liability is suggested which reflects the extent of this right.3
1 See Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 404-11, and ch 11 generally. Beever states that ‘it needs to be decided’ whether a right to psychological integrity exists. If it is decided that there is a right to psychological integrity, the limits of such a right then have to be made clear as the extent of such a right will determine the scope of liability in negligence in accordance with corrective justice: ibid. 2 Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016) ch 14. 3 The argument that a right to physical and psychological integrity exists in Australia has been published in Martin Allcock, ‘Corrective Justice and Kantian Right as a Mechanism to
84
4.2 Existence of a right to psychological integrity
Beever argues that the right to bodily integrity can be found to be recognised by the common law ‘by pointing to cases in which claimants [have recovered] for violations of their bodily integrity and inferring from those cases that the right to bodily integrity exists.’4 Beever further suggests that such an approach may be taken in relation to determining whether the law recognises a right to psychological integrity.5 It is clear from chapter 1 that such a right has been recognised in Australian, United Kingdom, American and Canadian law because in these jurisdictions a duty not to cause psychiatric injury has been recognised. The development of the law of negligence in relation to psychiatric damage outlined in chapter 1 tracks the gradual expansion of the ambit of liability at common law for such action and therefore the growing extent to which the common law in Australia has recognised the right to psychological integrity.
Whilst it may be argued that a right to psychological integrity was first explicitly recognised in some of the early leading ‘nervous shock’ cases,6 this is not strictly accurate. In Dulieu v White & Sons,7 whilst the court recognised that fright could ground an action in the absence of any accompanying impact,8 this finding was made in circumstances where ‘fright’ caused an injury which was characterised by the court as ‘physical’.9 Mrs Dulieu was pregnant at the time she suffered a fright as a result of the defendant’s negligence. As a result of this shock, she became seriously ill and suffered a miscarriage. Kennedy J was concerned to attach his finding to the existence of a bodily injury, noting that it could not be assumed to be scientifically true that nervous shock causing bodily illness was not actually accompanied by physical injury.10
Reconcile Substantially Clashing Interests in Cases of Negligently Inflicted Psychiatric Injury’ (2015) 40 Australian Journal of Legal Philosophy 17. 4 Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) 213. This is the case, according to Beever, notwithstanding that the court does this only implicitly in recognising a duty not to cause bodily harm. 5 Ibid. 6 See Dulieu v White & Sons [1900] All ER 353; Hambrook v Stokes Brothers [1924] All ER Rep 110. 7 [1900] All ER 353 (‘Dulieu’). 8 Dulieu v White & Sons [1900] All ER Rep 353, 356 (Kennedy J). 9 Ibid. 10 Ibid 358.
85
Kennedy J indicated that physical injury was a necessary part of the claimant’s claim, stating that where nervous shock caused physical injury and a jury was satisfied upon medical evidence that the physical injury followed the nervous shock as its direct and natural consequence, the separation in time of nervous shock and physical injury should not bar an action for damages.11 Phillimore J in Dulieu also characterised an action based on a duty not to inflict mental shock as an action for physical damage. This was made clear when he stated that such an action could be sustained, notwithstanding the fact that the mind was the vehicle through which the damage was inflicted, with the ultimate damage being physical.12 As with Dulieu, the injury forming the basis of the claim in Hambrook v Stokes Brothers13 was physical. Mrs Hambrook was pregnant at the time she suffered shock as a result of the defendant’s negligence, and she subsequently suffered a haemorrhage. As a result of this haemorrhage, she miscarried her baby and this ultimately led to her death.
The failure of the plaintiff’s claim in Chester v The Council of the Municipality of Waverley14 means that at the time of this case in 1939, the Australian High Court had yet to recognise a right to psychological integrity at common law. This was so even though it is implicit in the High Court’s decision in Chester that such a right would have existed where psychiatric injury to the claimant was found to be reasonably foreseeable. Recognition did not occur until the decision of Mount Isa Mines Limited v Pusey.15 The five cases after Pusey which went to the High Court16 all recognise the existence of a right to psychological integrity in Australian law.17
11 Ibid. Kennedy J provided the analogy of death caused by poisoning first provided by Palles CB in Bell v Great Northern Rail Co of Ireland 26 LR Ir 428 to support this proposition, who stated: ‘As well might it be said that a death caused by poison is not to be attributed to the person who administered it, because the mortal effect is not produced contemporaneously with its administration’: at 439. 12 Dulieu v White & Sons [1900] All ER Rep 353, 361. 13 [1924] All ER Rep 110 (‘Hambrook’). 14 (1939) 62 CLR 1 (‘Chester’). 15 (1970) 125 CLR 383. 16 Jaensch v Coffey (1984) 155 CLR 549 (‘Jaensch’), Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 (‘Tame; Annetts’), Gifford v Strang Patrick Stevadoring Pty Ltd (2003) 214 CLR 269, Wicks v State Rail Authority (2010) 241 CLR 60 (‘Wicks’) and King v Philcox (2015) 255 CLR 304 (‘King’). 17 While in Wicks and in King, the High Court was considering the claimants’ respective entitlements to claim for damages pursuant to the civil liability legislation, the decisions in those cases nonetheless confirm the existence of a right to psychological integrity pursuant to Australian common law. This is because of the High Court’s finding in Wicks that this legislation must be considered in light of the common law, which, as outlined above, had by that time recognised this right.
86
No explicit mention of the existence of a right to psychological integrity was made by any of the courts in Coultas, Dulieu, Hambrook, Bourhill, Pusey, or in Jaensch. It was not until Tame; Annetts that explicit comment was made by a judge relating to the existence of such a right. At the outset of their combined judgment in Tame; Annetts Gummow and Kirby JJ commented that the law of ‘nervous shock’ is characterised by the accommodation of competing interests struggling for legal protection.18 Their Honours were referring to the competing interests of plaintiffs in their own bodily and psychological security, and of defendants in their freedom of action.19 They referred to The Province and Function of Law, wherein Professor Stone observed:
The apparent anomalies and illogicalities of this subject are overt signs of a substantial clash of interests. Full support of the claim to nervous integrity might not only subject defendants to being mulcted in damages on false claims, thus infringing their interests of substance. It would also tend to inhibit freedom of action generally, thus prejudicing claims to free motion and locomotion.20
Gummow and Kirby JJ made reference to the function of the law of negligence, stating that:
A fundamental objective of the law of negligence is the promotion of reasonable conduct that perverts foreseeable harm. In part, this explains why a significant measure of control in the legal or practical sense over the relevant risk is important in identifying cases where a duty of care arises. Further, it is the assessment, necessarily fluid, respecting reasonableness of conduct that reconciles the plaintiff's interest in protection from harm with the defendant's interest in freedom of action. So it is that the plaintiff's integrity of person is denied protection if the defendant has acted reasonably.21
Their Honours were seeking to realign the point at which the competing interests of plaintiffs and defendants were reconciled. Gummow and Kirby JJ regarded such a realignment as justified by notions reflecting Weinrib’s and Beever’s theories, as may be seen in the following passage:
18 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 374 [170]. 19 Ibid. 20 Ibid: citing Stone, The Province and Function of Law (1946) 512. 21 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 379.
87
Protection of … integrity [of person] expands commensurately with medical understanding of the threats to it. Protection of mental integrity from the unreasonable infliction of serious harm, unlike protection from transient distress, answers the ‘general public sentiment’ underlying the tort of negligence that, in the particular case, there has been a wrongdoing for which, in justice, the offender must pay.22
Gummow and Kirby JJ made similar comments in Gifford:
[I]n attempting to define the scope of liability in negligence, it is useful to identify those interests which are sufficient to attract the protection of the law in any given field… It was said in Tame that the interest which the law seeks to protect in actions such as the present is more narrowly defined than the interest in ‘peace of mind’ which has been held in the United States to warrant legal protection. Australian law seeks to protect, in an appropriate case, the plaintiff’s freedom from serious mental harm which manifests itself in a recognisable psychiatric illness.23
Hayne J in Tame v New South Wales; Annetts v Australian Stations Pty Ltd also made some brief comments regarding the right to psychological integrity. His Honour regarded ‘ordinary fortitude’ as generally the only control mechanism, in addition to satisfying the test of reasonable foreseeability of harm, that would need to be considered in claims of negligently inflicted psychiatric injury.24 He stated that this was an approach which ‘treated the individual’s interest in psychiatric integrity as being no less valuable, and no less worthy of protection, than that person’s interest in physical integrity.’25
There has also been comment made, albeit brief, in the academic literature relating to the existence of a right to psychological integrity at common law in Australia,26 as well as in other common law jurisdictions.27 Mendelson has argued that Australian law protects all individuals’
22 Ibid [185]. 23 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 300-1 [88]. 24 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 411[275]. 25 Ibid. 26 See, eg, Danuta Mendelson, ‘Legal and Medical Aspects of Liability for Negligently Occasioned Nervous Shock: A Current Perspective’ (1995) 39(6) Journal of Psychosomatic Research 721, 724, 732. 27 See, eg, Peter Bell, ‘The Bell Tolls: Toward Full Tort recovery For Psychic Injury’ (1984) 36(3) University of Florida Law Review 333, 341.
88 right to not only physical integrity, but also to ‘emotional integrity’.28 This is not from all forms of harm that may affect bodily or emotional integrity, but only from harm that results from conduct which is wrongful.29 This, according to Mendelson, is then reflected in the duty at common law to refrain from producing risk which results in foreseeable harm.30 The nature of this right is not expanded upon further by Mendelson (save in relation to the legal elements said to reflect this right), and it is unclear whether Mendelson considers the duty of care at common law to be a judicial reflex (to use Weinrib’s wording) of the pre-existing right to bodily and psychological integrity.31
Beever argues in A Theory of Tort Liability that causing another person to suffer a recognised psychiatric illness interferes with that person’s means to pursue their own choices and therefore can be connected to the innate right contended to underpin the law of negligence.32 He further contends that there is no reason for limiting liability beyond the general requirement that the claimant show that the defendant ‘can foresee that their actions will have an impact on the [claimant’s] mental states that will undermine the [claimant’s] freedom.’33 This will be considered further below.34
28 See Danuta Mendelson, ‘Legal and Medical Aspects of Liability for Negligently Occasioned Nervous Shock: A Current Perspective’ (1995) 39(6) Journal of Psychosomatic Research 721, 732. 29 Ibid. 30 Ibid. 31 However, Mendelson has alluded to this on occasion. In arguing that an award of damages in cases of negligently inflicted psychiatric injury will not restore plaintiffs to the position they were in prior to suffering the effect of the defendant’s wrongful act, Mendelson states: ‘Perhaps, we should re-examine the assumption that the primary objective of compensation for nervous shock is to restore the plaintiff to the position in which he or she had been before the wrongful event’: Danuta Mendelson, ‘Legal and Medical Aspects of Liability for Negligently Occasioned Nervous Shock: A Current Perspective’ (1995) 39(6) Journal of Psychosomatic Research 721, 732. Mendelson has instead suggested that:
[W]e should regard the award of damages in tort to plaintiffs who suffer negligently occasioned mere psychiatric illness, as an affirmation of the public interest principle. Namely, that a civilized and humane society recognizes and protects the private individual’s interest in physical and psychological integrity, and that wrongful conduct which results in mental injury with consequent serious emotional and physiological dislocation is not to be regarded as legally acceptable: ibid.
32 Ibid. 33 Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016) ch 14. 34 At section 4.4.
89
4.3 Normative limits of a right to psychological integrity
The second question addressed in this chapter relates to the appropriate extent of the right to psychological integrity. This is not strictly a legal question, but is instead a normative question. It might be said that the right to psychological integrity exists to the extent of the rules of liability as set out in the current leading common law case of Tame; Annetts. However, this would not be helpful in terms of the normative question being considered, as the rules of liability which recognise the existence of the right to psychological integrity do not provide the normative basis upon which the existence and extent of such a right is justified.35 In order to determine the extent to which the right to psychological integrity exists, it is therefore necessary to consider the normative matters affecting this right.
Weinrib argues that Kant’s concept of personality manifests itself in two ways: the first being in the bodily integrity of the actor and the second in the personal property of the actor.36 Weinrib states that: ‘the body … houses the free will and is the organ of its purposes. The body is that in which the will is directly present... In abstract right an individual’s physical constitution is always the embodiment of personality.’37 Weinrib argues that an individual’s health and life are of particular significance for reasons that are directly related to the notion that individuals are under a moral duty not to injure others.38 Weinrib argues that Kant regarded physical integrity as essential for an individual to set about acting purposively in the world.39 In this context, Weinrib contends that a moral duty to refrain from injuring others can exist only to the extent that the individual upon whom the duty is placed is possessed of the ‘capacity to make choices and to set ends for himself’.40 Physical integrity is a suitable matter for a
35 Weinrib and Beever would likely regard the rights flowing from a finding by a court that a duty of care was owed to be secondary rights. This is consistent with a Hohfeldian analysis of rights. An interpretive approach taking the law to be the starting point would not be considered a pure interpretive approach, but would likely be a hybrid interpretive approach: see Nicos Stavropoulos, ‘Legal Interpretivism’, in Edward N Zalta (ed.), The Stanford Encyclopedia of Philosophy (Summer 2014 Edition): http://plato.stanford.edu/archives/sum2014/entries/law- interpretivist/. 36 Ernest J Weinrib, ‘Right and Advantage in Private Law’ (1989) 10 Cardozo Law Review 1283, 1289. 37 Ibid. 38 Ernest J Weinrib, ‘The Case for a Duty to Rescue’ (1980) 90 The Yale Law Journal 247, 287. 39 I Kant, The Metaphysical Principles of Virtue 49 (M Gregor trans. 1964): in Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1992, 2012) 287. It is in this sense then that the right to physical integrity is normatively justified from the perspective of Kant’s concept of right. 40 Ibid.
90 scheme involving duties which apply equally to all in restricting behaviour, primarily because physical integrity is ‘necessary for the accomplishment of any human aim.’41
However, it has a limited scope with the extent of the right from the Kantian perspective being determined by the extent to which that right can co-exist with the right to freedom of action of others pursuant to a universal law of freedom.42 Accordingly, the law does not recognise a duty to refrain from causing any and all harm. Such a right (and resulting duty) would deny the possibility of action and therefore be inconsistent with the formal equality underpinning corrective justice and Kantian right. Rather, the law recognises a duty in negligence to refrain only from causing wrongful harm, that is, harm that is a reasonably foreseeable result of one’s actions.
In terms of the normative aspect of the limits of a person’s right to bodily integrity: ‘The limits of one person’s embodiment are … the limits of another person’s freedom. Short of infringing these limits, one’s freedom to act is unrestricted.’43 With this in mind, there appear to be at least three possibilities by which a right to psychological integrity consistent with these theories arises. The first is that this right arises as a necessary element of bodily integrity. The second is that this right arises independently of the right to bodily integrity. The third is that the right to bodily integrity and the right to psychological integrity are not independent rights, but are part of a larger combined right.
In this thesis, it is the third possibility which is advocated. The third option is more appealing than the first two due to the demise of the Cartesian notion of dualism. Those researching the scientific bases of psychiatric injuries have over time come to the realisation that the distinction between purely physical injury and purely psychiatric injury is not reflected in the scientific
41 Ernest Weinrib, The Idea of Private Law (Oxford University Press, 1992, 2012) 288. 42 Ernest Weinrib states:
A person contemplating the ethical exercise of his freedom of action must impose certain restrictions on that freedom. Because morality is something that he shares with all humanity … he cannot claim a preferred moral position for himself. Any moral claim he makes must, by its very nature as a moral claim, be one to which he is subject when others can assert it. Acting on the basis of his own personhood therefore demands recognition of the personhood of others: ibid.
43 Ernest J Weinrib, ‘Right and Advantage in Private Law’ (1989) 10 Cardozo Law Review 1283, 1292-3.
91 evidence.44 In the seventeenth and early eighteenth centuries, scientists studying diseases of the nervous system gradually came to understand that changes in the psychological state were accompanied by changes in the physiological state.45 This challenged the notion of dualism put forward by Rene Descartes in the 1600s, which postulated that the mind and the body are separate.46 Unless there is something fundamentally different about physical and psychological harm, it is more appealing to regard the right to bodily integrity and the right to psychological integrity as being parts of a larger combined right.
It is initially tempting to conceive of physical and psychological integrity as inhabiting different domains. On a superficial level, a fractured leg seems to involve an interference with only the physical aspect of the being. No interference with psychological or psychiatric functioning seems to occur in this simple example. By the same token, Major Depressive Disorder superficially seems to involve an interference with only the psychological or psychiatric aspect of the being, with no immediately apparent interference with physical functioning occurring. The law of negligence as it has developed has adopted this distinction and perhaps reinforced it for lawyers familiar with these concepts. There are also several other important reasons why physical injuries have been traditionally conceived of as distinct from psychiatric injuries. For one, psychiatric injuries sometimes appear to involve distinct and much more complex causal mechanisms than do physical injuries. Physical injuries may also generally be characterised as involving a change in some aspect of physiology whereas psychiatric injuries sometimes cannot. Changes in physiology in relation to physical injuries may also generally be verified by clinical tests, whereas psychiatric injuries cannot. In addition there is usually a consistent and predictable response to physical trauma, which cannot be said of psychiatric trauma.
44 See Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 7-8, ch 5; Des Butler, Damages for Psychiatric Injuries (Australian Legal Monographs, Federation Press, Sydney, 2004) 12-5. 45 Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 96-7. 46 See René Descartes, Meditations on First Philosophy (1641). Also see Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 32-3; Des Butler, Damages for Psychiatric Injuries (Australian Legal Monographs, Federation Press, Sydney, 2004) 12. A growing recognition of this fact can be found in the leading cases as the law gradually developed: see, eg, Dulieu v White & Sons [1900] All ER Rep 353, 358 (Kennedy J); Hambrook v Stokes Brothers [1924] All ER Rep 110, 118 (Sargant LJ); Chester v The Council of the Municipality of Waverley (1939) 62 CLR 1, 47 (Evatt J); King v Phillips [1953] 1 QB 429, 439 (Denning LJ); Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 394 (Windeyer J ); Jaensch v Coffey (1984) 155 CLR 549, 592 (Deane J).
92
However, these matters simply relate to cases in which the causal mechanisms are particularly complex and are not a sufficient basis upon which to posit a justifiable distinction between physical and psychological or psychiatric aspects of the being.
4.3.1 The ability to appreciate risk
It is common to conceive of the risk of physical injury as being relatively straightforward to appreciate. The causal mechanisms involved in the vast majority of negligence cases are often solely a matter of physics and mechanics being aetiological factors which are both relatively straightforward to conceive of, and widely appreciated. If one person brings a heavy object down on another’s leg with force, it is readily apparent that the likely outcome will be that the second person will suffer injury of a particular kind. The outcome in this example is not a matter which requires particular education or training. All one needs in order to appreciate the likely effects of such an action is a little experience in relation to cause and effect in nature. Importantly, one’s own experience is generally all that is required to gain such an appreciation. Indeed, one’s experience as a child is generally sufficient in this context.
It also seems reasonable to assume that the community’s ability to appreciate the risk of physical injuries of this kind has remained relatively unchanged for millennia. Whilst technical understanding of subjects such as physics and medicine have undoubtedly advanced a great deal over history and the physical environment has changed a great deal, no particular technical understanding is required in order to appreciate the risk that if one brings a heavy object down with force onto another’s leg they will likely suffer injury of a particular kind.47 This is a kind of ‘common knowledge’ which is possessed by people regardless of age (save for young children or those with particular problems in understanding), race, religion, education and training. In relation to physical injuries of this type, it may accordingly be said that understanding of the risk of such injuries is readily appreciable in the general community and requires no particular education or training in order to be appreciated.
47 In other words, a person living many hundreds (indeed thousands) of years ago would arguably have had the same appreciation as a person living today as to the physical effects of a heavy object falling onto themselves or another, and accordingly, would be in same position with regard to the ability to appreciate the risk in this happening.
93
It is initially appealing to create a distinction between physical and psychiatric injuries on the basis that the ability to appreciate the risk of mental disorders is by comparison more difficult than the risk of physical injuries, as the aetiological factors associated with the onset of mental disorders are generally less-well-understood by those expert in the area as well as by those in the general community. This is reinforced by the observation that the knowledge of experts in the area is much more recent when compared to physical injuries, only being a devoted area of scientific research from around the end of the 19th century. However, a distinction between concepts should not be created simply because knowledge of one aspect of a particular phenomenon is less developed when compared to another. There are many areas of scientific knowledge which are less advanced than scientific knowledge in relation to simple physical injuries and these cut across the artificial boundary lines of physical and psychiatric injuries.
For example, scientific knowledge in relation to particular forms of cancer48 or bronchiectasis49 is less developed than scientific knowledge in relation to simple contusions despite these all being commonly understood as conditions affecting the physical aspect of the body. By the same token there are some areas of scientific knowledge in relation to mental disorders which are relatively well-developed such as knowledge regarding the risks posed by exposure to particular traumatic events in causing Posttraumatic Stress Disorder.50 Such a factor by itself is accordingly insufficient to ground a distinction between physical and psychiatric aspects of the being. The reasons identified above as to why physical injuries have traditionally been conceived of as distinct from psychiatric injuries are considered in further detail below.
4.3.1.1 Changes in brain physiology not necessarily ‘injuries’
Whilst trauma to a person’s leg resulting from a heavy object being brought down onto it with force (likely amounting to broken bones and damage to the soft tissue) can quite clearly be described as an injury, the same cannot always be said in relation to the notion of a psychiatric injury. It is true to say that it is becoming increasingly clear that the distinction between the mind and the body is at best a spurious one, with changes in one’s psychological functioning
48 See, eg, Emily Chan and Jordan Berlin, ‘Biliary Tract Cancers: Understudied and Poorly Understood’ (2015) Journal of Clinical Oncology 1. 49 See, eg, T Keistinen, O Säynäjäkangas, T Tuuponen, and SL Kivelä, ‘Bronchiectasis: An Orphan Disease with a Poorly-Understood Prognosis’ (1997) 10(12) European Respiratory Journal 2784. 50 This is discussed below in Part III.
94 becoming more and more recognised by the scientific community as being accompanied by changes in brain physiology.51 However, it must be kept in mind that it is not necessarily changes in brain physiology which amount to psychiatric injury. This is because changes in a person’s brain physiology as well as in relation to psychological and psychiatric functioning cannot all be described as injuries.
Indeed, it is clear from neuropsychological research that human brain physiology changes constantly throughout life, changing day to day as humans learn and adapt to new situations and circumstances.52 By the same token, some changes in psychiatric functioning whilst often reliant upon self-reporting are often readily observable to those with sufficient education and training. Moreover, there are some diseases which are thought of as ‘physical’ diseases which are not able to be characterised by observable physiological changes. Accordingly, physiological changes are not necessarily indicative of disorder or disease which means that more than a change in brain structure and function is needed in order to justify classing such a change as an injury.
4.3.1.2 No unequivocal medical tests indicating cause
The issue of causation in relation to mental disorders is complex and multifactorial. A range of factors intertwine and have a causative effect in relation to psychiatric disorders, including biological, psychological, and social factors.53 It can accordingly be very difficult to determine the relative weight of various causative factors. Diagnosis within psychiatry reflects this and does not involve consideration of simply physical changes brought about in a person suffering from mental distress as is often the case with diagnosis in relation to physical injuries. In relation to physical injuries a medical professional can often call upon a number of physical
51 See, eg, Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) ch 5. 52 Neural plasticity is necessary for everyday functioning, for example in relation to forming and storing long-term memories: RHS Carpenter, Neurophysiology (Arnold, 4th ed, 2003) 383-8. This process involves chemical and functional alterations in the anatomy of the neurons and synapses in the brain through experience and through learning: Eric Kandel, James Schwartz and Thomas Jessell, Principles of Neural Science (McGraw-Hill, 4th ed, 2000) 34. 53 Sidney Bloch and Bruce Singh, Foundations of Clinical Psychiatry (Melbourne University Press, 3rd ed, 2007) 47-68. This caused Bloch and Singh to note Albert Einstein’s famous statement that: ‘For every problem there is a solution which is simple, obvious, and wrong’: at 47.
95 tests54 to build up a clinical picture enabling a diagnosis to be made based on physical objectively verifiable evidence. Diagnosis of a psychiatric condition on the other hand involves the use of a diagnostic tool such as the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) or the International Statistical Classification of Diseases and Related Health Problems (ICD-10). The diagnostic tool most often used in Australia – the DSM-V – classifies mental disorders into types with particular crucial features and allows those using it to diagnose individuals suffering from classified mental disorders based on the extent to which those individuals exhibit particular symptoms.55 Importantly, the DSM-V does not provide causal explanations for mental disorders. Unambiguous neuropathological and pathophysiological test findings which indicate with certainty what particular mental disorder is present in an individual as well as the factors which caused it are simply not available.56
However, this too is not a sufficient basis upon which to base a distinction between the ‘physical’ and the ‘psychiatric’. This is instead simply a reflection of the relative lack of scientific knowledge in relation to some mental disorders rather than a reflection of a distinction between the physical and psychiatric aspects of the being. Unambiguous physiological tests are also not available to provide causal explanations for a number of diseases and disorders such as autoimmune diseases which are ordinarily thought of as physical in nature. On the other hand some mental disorders such as PTSD can sometimes be clearly aetiologically-related to a particular identifiable stressor event. Accordingly, something more than a lack of unequivocal medical tests indicating cause is required to justify a distinction between the physical and psychiatric aspects of the being.
4.3.1.3 Range of responses to trauma
Further relevant is the research literature which suggests that not everyone responds to stressful events in the same way. This means that where a particular stressful event occurs one person may suffer no change in their psychiatric functioning, another may experience transitory psychiatric symptoms, whilst a third person may experience chronic psychiatric symptoms
54 Such as blood tests, x-rays and magnetic resonance imaging (MRI). 55 Benjamin J Sadock and Virginia A Sadock, Kaplan and Sadock’s Synopsis of Psychiatry (Lippincott, Williams & Wilkins, 9th ed, 2003) 288-96. 56 Sidney Bloch and Bruce Singh, Foundations of Clinical Psychiatry (Melbourne University Press, 3rd ed, 2007) 74.
96 which impairs their functioning to a high degree.57 The biopsychosocial approach within psychiatry recognises that biological, psychological and social elements are all relevant when considering a person’s response to trauma.58 Factors regarded as internal to the person such as one’s genes, psychological coping style, age, sex and race, are all relevant when considering an individual’s psychological functioning. Factors regarded as external to the person including one’s environment, experiences and culture are also all relevant in this context.59 Significantly, not everyone experiencing a traumatic event will go on to suffer from a mental disorder as a consequence.60 Indeed, many individuals who suffer trauma, whilst suffering from short term mental distress, never go on to develop a longstanding mental disorder.61 When this occurs the individual experiences unpleasant symptoms as a result of the trauma, but these are transient and the person’s normal psychological state returns in time.62 Whilst this might seem to suggest something particular to psychiatric injuries this is not necessarily the case. For example, there may also be variation in the extent to which individuals are affected by physiological trauma, as well as in relation to how individuals respond to medical treatment.63 Accordingly, this too is an insufficient basis upon which to base a distinction between the physical and the psychiatric aspects of the being.
57 See, eg, Des Butler, Damages for Psychiatric Injuries (Australian Legal Monographs, Federation Press, Sydney, 2004) 10. 58 Sidney Bloch and Bruce Singh, Foundations of Clinical Psychiatry (Melbourne University Press, 3rd ed, 2007) 47-68; Bourne and Russo, Psychology, Behaviour in Context (WW Norton, 1998); Jennifer Barraclough and David Gill, Hughes’ Outline of Modern Psychiatry (John Wiley & Sons, 4th ed, 1996) 5-18; Richard W Hudgens, ‘Personal Catastrophe and Depression: A Consideration of the Subject With Respect to Medically Ill Adolescents, and a Requiem for Retrospective Life-Event Studies’ in Barbara Dohrenwend and Bruce Dohrenwend, Stressful Life Events: Their Nature and Effects (John Wiley & Sons, 1974) 119. 59 Sidney Bloch and Bruce Singh, Foundations of Clinical Psychiatry (Melbourne University Press, 3rd ed, 2007) 49; Jennifer Barraclough and David Gill, Hughes’ Outline of Modern Psychiatry (John Wiley & Sons, 4th ed, 1996) 5-18. 60 Sidney Bloch and Bruce Singh, Foundations of Clinical Psychiatry (Melbourne University Press, 3rd ed, 2007) 49; Des Butler, Damages for Psychiatric Injuries (Australian Legal Monographs, Federation Press, Sydney, 2004) 10. 61 Ibid. 62 Ibid. 63 Ibid. For example, one individual’s response might differ from another’s due to variations in DNA which cause alterations in the way that proteins are expressed or how proteins function: see William E Evans and Mary V Relling, ‘Moving Towards Individualized Medicine With Pharmacogenomics’ (2004) 429 Nature 464, 464.
97
4.3.1.4 Causal explanations differ between disorders
Mental disorders have also been associated in the scientific literature with specific causative factors and these differ from each other. For example, the research has shown that events described as losses, including life threatening illness suffered by a loved one, are causally related to the onset of depressive disorders.64 On the other hand, an important causal factor in relation to anxiety disorders is whether an event involves danger.65 In relation to PTSD the causal mechanisms have been shown to relate to fear for one’s life or for another’s life.66 However, whilst this causal complexity might seem to indicate a separation between the physical and psychiatric aspects of the being, this too is not a sufficient basis upon which to ground such a distinction. Physical injuries also vary enormously in relation to the factors which are aetiologically related to their onset. Some physical injuries are caused by significant physical impact between the body of the person and an object, such as a vehicle. Other physical injuries are caused by exposure to substances such as poisons or to asbestos.
4.3.1.5 A larger combined right to physical and psychological integrity
Given this discussion, the dichotomy between purely physical injury and purely psychiatric injury is difficult to sustain on the scientific evidence. The right to physical integrity pursuant to Kantian right should accordingly not be considered a distinct right from the right to psychological integrity but should instead be considered part of a larger combined right, perhaps to be considered the ‘right to physical and psychological integrity’. Language is only the prism through which the world can be viewed and analysed and should not serve to enslave the phenomena that the observer seeks to describe. In the examples given above the terms physical and psychiatric presuppose a distinction in concepts which is not necessarily reflected
64 B Brown and T Harris, Social Origins of Depression (Tavistock Press, 1978); G Brown and T Harris, Depression, in G Brown and T Harris, Life Events and Illness (Guildford Press, 1989). 65 R Finlay-Jones, Anxiety, in G Brown and T Harris, Life Events and Illness (Guildford Press, 1989). 66 Des Butler, Damages for Psychiatric Injuries (Australian Legal Monographs, Federation Press, Sydney, 2004) 166. For example, when bereavement is included as a stressor, this generally increased rates of mental disorders; K Kim and S Jacobs, Stress of Bereavement and Consequent Psychiatric Illness, in C Mazure, Does Stress Cause Psychiatric Illness? (American Psychiatric Press Inc, 1995). For further discussion regarding medical literature in relation to mental disorders, see Des Butler, Damages for Psychiatric Injuries (Australian Legal Monographs, Federation Press, Sydney, 2004) ch 2; Peter Handford, Mullany & Handford’s Tort Liability for Psychiatric Damage (Thomson Lawbook Co, 2nd ed, 2006) ch 3.
98 in the real world and this terminology should not impact upon the assessment of the existence and extent of the right to be free of interference with one’s mental functioning where this amounts to an injury.67
Having argued that the appearance of greater difficulty in the ability to appreciate the risk of psychiatric injuries when compared to physical injuries does not sustain a distinction between such injuries, limits in the extent to which the general community is able to appreciate the risk of injury nonetheless impacts significantly upon the extent to which it can be said that persons factually responsible for causing injuries are also morally responsible for doing so. More particularly, from a normative perspective, it is the effect that limited ability in the general community to appreciate the risk of particular injuries as a result of particular actions has on the normative connection between the defendant’s actions and the claimant’s resulting injury which is important in this respect.
This issue transcends any distinction between physical and psychiatric or psychological aspects of the being. Instead, the more meaningful question in such cases is instead: How should the law allocate moral and therefore legal responsibility for causing another person injury when the risk of such injury is not appreciable as a result of particular actions as a matter of community expectation? One answer to this question is to use Beever’s perspective involving moral responsibility for injuring others68 to determine the extent to which a connection can be made between the defendant’s wrongful actions and the claimant’s resulting injury.
4.3.2 Common perceptions of risk relevant to the right to freedom from interference
Pursuant to Beever’s principled approach a person’s right to freedom from interference – whether that be interference with bodily integrity or psychological integrity or a combination of both – exists only to the extent that this right is consistent with the freedom of action of all others pursuant to a universal law of freedom.69 Where a person (or the general community,
67 This raises the question of whether the terms physical and psychiatric, when referring to the nature of injury, themselves create boundaries which, not being reflective of medical realities, are artificial. It might be argued that these terms are simply relics of the long-discredited notion of Cartesian dualism, which ought to be used with caution. 68 Discussed above in chapter 2. 69 Weinrib explained this concept by arguing that a person acting in the world in a purposeful way, must not ‘grant to himself an advantage that he would deny to others’: Ernest J Weinrib, ‘Toward a Moral Theory of Negligence Law’ (1983) 2(1) Law and Philosophy 37, 50.
99 judged against the standard of the reasonable person) has a limited ability to appreciate the risk of a particular type of injury – say injury x – as a result of a particular type of action – say action y – there will be a limit to the extent to which a normative connection can be made between the defendant’s purposive action – action y – and the claimant’s injury – injury x. Where injury is caused in such circumstances, it might be argued that the actor was negligent. However, where as a matter of community understandings and expectations the risk of injury to the claimant was not appreciable, a normative connection will not be able to be made between the defendant’s actions and claimant and the claimant’s resulting injury. In such circumstances it can be concluded that the actor was not morally responsible for causing the claimant’s injury.70
When a person, or more accurately when a community, has a limited ability to appreciate the risk of particular injuries as a result of particular actions, this must be considered in the context of the effect that this has on the notion of moral responsibility for causing harm. This is because in accordance with Beever’s principled approach a person’s right to physical and psychological integrity must be consistent with other’s freedom of action pursuant to a universal law of freedom. Limited common ability to appreciate the risk of particular injuries as a result of particular actions must accordingly limit the extent to which the right to physical and psychological integrity exists pursuant to a universal law of freedom. In accordance with this view, the extent of this right must expand or contract commensurably with community understandings of threats to it. This is because recognition of a right to physical and psychological integrity in circumstances when risk is not commonly appreciable is inconsistent with others’ freedom of action pursuant to a universal law of freedom.
Accordingly, ‘the rationality of his own purposive actions must mesh with the equality of persons generally’: ibid. 70 This is consistent with both Weinrib’s and Beever’s conceptions of negligence based on corrective justice. Particularly, this is consistent with Weinrib’s conception of negligence as involving ‘conduct and choice’: Ernest J Weinrib, ‘Toward a Moral Theory of Negligence Law’ (1983) 2(1) Law and Philosophy 37, 58. In this regard, Weinrib states:
negligence… can accommodate the absence of liability where there is no act in the technical tort sense of a manifestation of the will… Under the Kantian approach lies the view that moral personality is marked by the capacity to form and advance a conception of the good…. Liability should not be visited on actions that cannot plausibly be regarded as instances of the exercise of this capacity’: ibid.
100
A simple hypothetical example based on the facts in Victorian Railways Commissioners v Coultas71 will perhaps assist in demonstrating this argument. Consider the following: Person A is travelling in a horse-drawn buggy which narrowly escapes a collision with an oncoming steam train. The near collision is caused by the negligence of person B who is responsible for guiding the horse-drawn buggy safely across the railroad tracks. Although the two vehicles do not collide person A suffers a great fright as a result of this near collision, and subsequently suffers a mental disorder. Where it was not generally appreciated as a matter of common understandings at the time of the accident that there was a risk that a person suffering a great fright as a result of such a near collision might suffer psychiatric injury, it could not be said that person A possessed a right to physical and psychological integrity which extended to place person B under a correlative duty to refrain from injuring person A. This is because such a right would not be expressive of the transactional equality between the parties, and would be inconsistent with a universal law of freedom. In such circumstances the relevant normative connection between the defendant’s negligence cannot be established, which is relevant to both the questions of duty and remoteness.
4.3.3 Refinements to the general proposition
A few further observations may be made in order to refine this general proposition. The first is that the risk of particular psychiatric injuries as a result of particular actions is not totally unappreciable in the general community, that is, amongst those not possessing particular education or training regarding psychiatric injuries.72 In particular, the observation may be made that most people regardless of education or training have some appreciation that a person may suffer a psychiatric injury due to the death by accident of a loved one.73 Similarly, most
71 (1888) App Cas 222 (‘Coultas’). 72 The converse is also true, namely, that the causal mechanisms involved in relation to physical injuries are not always generally known. There are circumstances when such causal mechanisms are not widely understood. This point is taken up in the following section. 73 For example, it is well-known that there is a strong connection between stressful life events such as death of a loved one and depression: see, eg, K Romanov, J Varjonen, J Kaprio and M Koskenvuo, ‘Life Events and Depressiveness – The Effect of Adjustment for Psychosocial Factors, Somatic health and Genetic Liability’ (2003) 107 Acta Psychiatrica Scandinavica 25, 25-26; B Sadock and V Sadock, Kaplan and Sadock’s Comprehensive Textbook of Psychiatry (Lippincott, Williams & Wilkins, 9th ed, 2005), 540-1. There is also a well-known link between exposure to extreme traumatic stressors in the form of seeing, hearing, or being involved in relation to such a stressor and anxiety disorders such as Posttraumatic Stress Disorder (PTSD) and Acute Stress Disorder: ibid 623-4. It is therefore of no surprise that almost all of the leading Australian and United Kingdom cases involve psychiatric injury resulting from these two
101 people have some appreciation that if a person witnesses a particularly horrific or gruesome accident involving another, the person may suffer some kind of psychiatric injury regardless of whether the person injured or killed was a loved one.74
The relationship between the norm against injuring others pursuant to corrective justice and the extent to which the risk of particular injuries resulting from particular actions is appreciable as a matter of community understandings and expectations is explored below.
Figure ‘1’: Injuries which are well-understood by the general community to be causally related to particular actions or events
A------x1----N----x2------B
Figure 1 relates to injuries which are well understood by the general community to be causally related to particular actions or events. An example might be the physical injuries – such as bruising, broken bones etc – which will likely result from being struck by a motor vehicle at high speed. Points A and B are on a continuum of the ability to appreciate risk in the community, with point A representing a hypothetical complete absence of such an ability, and point B representing a hypothetical complete ability. A particular individual’s ability to appreciate risk in relation to a particular injury may be anywhere between points A and B on this continuum, depending upon their own personal experience and education.75 Points x1 and x2 represent the range of ability to appreciate risk which is common in the general community, with point x1 representing the lowest ability and point x2 representing the highest. Points x1 and x2 can be considered the points on a bell curve between which the majority of people in the
situations; see, eg, Hambrook v Stokes Brothers [1924] All ER Rep 110 (accident involving imagined serious injury or death of a loved one); Chester v The Council of the Municipality of Waverley (1939) 62 CLR 1 (accident involving death of a loved one); Hay or Bourhill v Young [1942] 2 All ER 396 (claimant heard accident involving death of a stranger and claimant saw blood on the road); Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 (claimant witnessed horrific burns to fellow employee); Jaensch v Coffey (1984) 155 CLR 549 (accident involving death and injury to loved ones); Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 (neglect leading to death of a loved one); Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 (accident involving death of a loved one). This will be considered further in Part III. 74 This will also be considered further in Part III. 75 A range of other personal characteristics may also affect a particular person’s knowledge of the relevant causal mechanisms. However, it is sufficient for the purposes of this example to focus on those characteristics identified.
102 particular sample, in this case, the community as a whole, are clustered. Point N in the figure represents the norm set by corrective justice and Kantian right in relation to the level of risk a person ought to be able to appreciate and the objective reasonable person standard. This is the amount of knowledge that is common in the community and is therefore the level of ability individuals are expected to possess.
A few particular points should be noted in relation to figure 1. The first is that x1 is a long way from A, comparatively speaking. This represents the idea that even those at the lower end of the range of ability to appreciate risk have a much greater ability to appreciate risk than nothing. No particular education or training is required in order to appreciate the risk of such injuries as a result of particular actions. The second point to note is that the distance between x1 and x2 – the range of ability to appreciate this risk in the community – is relatively small. This represents the idea that it commonly does not require significant education or training in order to appreciate the risk of such injuries. This ability can be gained through simple common experience. Of course, one can acquire specific education or training and therefore have a greater ability to appreciate the risk of such injuries when compared to those in the general community, and this is represented by x2 being closer to point B than x1. However, this specific education or training is not required in order to be able to appreciate the risk of such injuries occurring in specific circumstances.
The third point to note is that points x1 and x2 are both comparatively close to point B. This reflects the idea that whilst there is a range of abilities to appreciate the risk in the general community, the average person possesses a relatively good ability to appreciate the risk of such injuries as a result of particular actions. Point N is positioned between points x1 and x2, representing the fact that the law of negligence sets the norm at a point between the lowest and highest ability to appreciate risk. A person may possess more ability than N, or they may possess less. Where a particular person has an ability to appreciate risk which is less than N and negligently injures another person, the law does not excuse their lack of ability. Rather, the law effectively tells that person that they ought to have foreseen injury in the circumstances by finding them liable in negligence.76 As points x1 and x2 are both relatively close to point B,
76 Assuming that all of the elements of the cause of action are satisfied.
103 point N is comparatively high, representing the idea that the law expects individuals to possess a relatively good ability to appreciate the risk of such injuries.77
The equivalent figure regarding injuries involving limited community abilities to appreciate the risk of particular injuries – such as psychiatric injury – as a result of particular actions is considered below.
Figure 2: Injuries which are not well-understood by the general community to be causally related to particular actions or events
A-x1------N------x2------B
Figure 2 relates to injuries which are not well-understood by the general community to be causally related to particular actions or events, and includes some cases of psychiatric injury. The first point to note in relation to figure 2 is that x1 is relatively close to A when compared to figure 1. This represents the idea that those at the lower end of the ability to appreciate risk in the community have a comparatively lower ability to appreciate the risk of such actions as a result of particular actions. Without particular education or training, those at the lower end of the scale of ability to appreciate this risk have little to no ability to appreciate the inherent risks associated with particular actions. The second point to note is that the distance between x1 and x2 is quite large in comparison to the distance between those two points in figure 1. Some people have very little ability, and some have a lot. This represents the idea that in comparison with the injuries in figure 1, it generally requires specific education or training in order to gain an appreciation of the risk of the injuries in figure 2 as a result of particular actions. Such ability is not easily acquired through ordinary human experience.
The third matter to note is that even though some in the community have a greater ability to appreciate risk than others, those at point x2 are much further from point B in comparison with
77 It should be pointed out that in reality, the extent to which the causal mechanisms involved in relation to physical injury are appreciated is not actually considered in real cases before real courts, as knowledge of these causal mechanisms is such as to be assumed to be possessed by the defendant in question. It would be highly unusual, for example, for a defendant to claim that they did not understand that their negligently dropping of a heavy object onto the plaintiff’s leg would cause the plaintiff a physical injury. A court would simply reject such an argument as being without substance.
104 figure 1. This reflects the idea that even amongst those possessing particular education and training, the ability to appreciate the risk of the injuries in figure 2 is much further from a state of hypothetical ‘complete ability’ than in relation to the injuries in figure 1. The fourth thing to note is that the norm of expected ability at point N in figure 2 is, as a result, much closer to point A than point B when compared to figure 1. This reflects the idea that people are not expected to have as much ability to appreciate the risk of the injuries in figure 2 in comparison with risk of injuries in figure 2. It is arguable that over time, as community awareness of the risks of the injuries in figure 2 as a result of particular actions increases, point N should move closer to point B. However, overall, point N is lower in figure 2 than in figure 1 due to a lower general ability in the community to appreciate the risk of such injuries when compared to the injuries in figure 2.
Figures 1 and 2 assist in drawing out one of the important points made in this thesis. From the perspective of Beever’s principled approach, the extent to which those in the general community with no special education or training are able to appreciate the risk of particular injuries as a result of particular actions is more important in terms of moral and legal responsibility for causing injury, than is a distinction between physical and psychiatric injury. This is because moral and legal responsibility requires that a normative connection be made between the defendant’s negligent actions and the claimant’s resulting injury, which in turn requires an ability to appreciate the risk of injury to others by one’s actions.
Critically, both ‘categories’ of injury – ‘physical’ and ‘psychiatric’ – include sub-types which broadly meet the criteria for the injuries in both figures 1 and 2 discussed above. For example, it might be argued that the general community has a relatively good ability to appreciate the risk of ‘psychiatric’ injuries as a result of the death or injury of a loved one in unexpected or distressing circumstances. Furthermore, it might also be argued that the general community also has a comparatively good ability to appreciate the risk of psychiatric injury as a result of witnessing a particularly horrific accident involving another person, even whether that other person is a complete stranger. It may be argued therefore, that such a psychiatric injury is more akin to the injuries in figure 1 than the injuries in figure 2. Alternatively, the ability to appreciate the risk of some ‘physical’ injuries caused by exposure to poisonous substances, or in relation to some forms of cancer, is not high in general the community, and it may be argued that such injuries are more akin to the injuries in figure 2 than to those in figure 1.
105
Adding nuance to this discussion is the observation that the monikers ‘Injuries which are well- understood by the general community to be causally related to particular actions or events’ and ‘Injuries which are not well-understood by the general community to be causally related to particular actions or events’ so far as they relate to the ability to appreciate the risk of injury are artificially polarised when compared to reality. The ability to appreciate the risk of each particular injury is more likely sit somewhere on a continuum between these two poles. Figure 3 assists in demonstrating the point that it is the ability to appreciate the risk of particular injuries as a result of particular actions measured again at community understandings and expectations which is the most important factor in terms of moral and legal responsibility for causing harm.
Figure 3: ‘Psychiatric’ injury resulting from death or injury of a loved one or from witnessing horrific injury – common knowledge of risks of injury
A------x1-----N-----x2------B
The first matter to note in relation to psychiatric injury resulting from death of a loved one or from witnessing an horrific injury to another is that points x1 and x2 are a lot closer to point B in figure 3 than they are in figure 2 (injuries not well-understood to be causally-related to particular events). This represents the idea that both those with the lowest and those with the highest ability to appreciate this risk possess a greater ability in relation to ‘psychiatric’ injuries resulting from death or injury of a loved one or witnessing horrific injury when compared to the injuries in figure 2 as a general category. Scientific understandings of the causal mechanisms involved in relation to ‘psychiatric injury’ resulting from death of a loved one or from witnessing an horrific injury to another are relatively good. Further, those with the lowest ability to appreciate this risk in this figure have a higher ability when compared to the injuries in figure 2 as a general category.
The second point to note is that the range of ability to appreciate risk from the lowest to the highest in the community – represented by the distance between x1 and x2 – is smaller than in figure 2. This represents the idea that even though there may be still a large difference between the ability to appreciate risk possessed by those at the highest end of the scale compared to those at the lowest, those with the lowest ability may still be expected to possess a greater ability than in relation to the injuries in figure 2 as a general category. Those at the lower end
106 of the scale are better able to appreciate the risk of such ‘psychiatric’ injuries than in relation to the injuries in figure 2 as a general category. The third matter to note is that those with the highest ability to appreciate risk are closer to point B than in figure 2, although not quite as close to the same point as in figure 1.
The fourth matter to note is that point N, occurring as it does between points x1 and x2, is accordingly higher in figure 3 than in figure 2, although lower than in figure 1. This represents that idea that the norm set by the law of negligence with regard to what ability to appreciate risk individuals are expected to possess in relation to ‘psychiatric’ injuries resulting from actions well-known to be causally related to specific actions is higher than in relation to the injuries in figure 2 as a general category. Indeed, what we can really see is that figure 3 (‘psychiatric’ injuries resulting from the death of a loved one or from witnessing an horrific injury to another) exhibits a pattern which is actually much closer to figure 1 (well-known causal association with particular actions) than it is to figure 2 (not well-known causal association with particular actions). The opposite argument may also be made in relation to ‘physical’ injuries involving not well-known causal associations, save to say that such injuries resemble figure 2 more than figure 1.
This indicates that the norm set by the law of negligence in relation to what ability to appreciate risk individuals are expected to possess in relation to particular ‘types’ of injury is much more related to the ability of the general community to appreciate the risk of a particular injury as a result of particular actions than it is to the description of the type of injury suffered. This is because it is community understandings which directly affect how much the reasonable person is adjudged to be able to appreciate the risk of causing particular types of injury when engaging in particular actions. Where the risk of a particular injury as a result of a specific act or series of actions is relatively well-known not just by experts but also by the general community, the reasonable person will be adjudged to be able to appreciate the risk of causing such injuries by their actions. Accordingly, the reasonable person standard reflects the point at which it can be said that normative connection between the defendant’s actions and the claimant’s resulting injury can be established. The right to physical and psychological integrity in cases where the risk of injury is commonly appreciable as a result of particular actions should accordingly exist to a greater extent when compared to injuries where the risk of injury is not commonly appreciable. The right accordingly should expand commensurably with the ability of those in the general community to appreciate the risks of threats to that right, this being consistent with
107 the universal law of freedom posited by Beever. By the same token, the normative extent of the right should be lessened when this common ability contracts.
Connecting the extent of the right to physical and psychological integrity to common ability to appreciate risk balances the claimant’s right to freedom from interference with the defendant’s freedom of action, making this approach consistent with the formal equality underpinning the relationship between the parties pursuant to corrective justice and Kantian right. The right expands only when common ability to appreciate particular risks is adjudged to have expanded. Likewise (although less likely), it will also contract as this common ability is adjudged to have contracted. It is argued therefore that the extent of the right to physical and psychological integrity varies in relation to the particular injury suffered. The exception to this point is in relation to those with particular expert knowledge of the causes of injury. Where an individual possesses such expert knowledge and therefore a greater ability to appreciate the risk of a particular injury as a result of specific actions, it will in some circumstances be consistent with the formal equality underlying corrective justice and Kantian right to recognise a greater right to physical and psychological integrity when compared to this right amongst those in the wider community with no special knowledge. The circumstances in which this greater right is consistent with Beever’s theory relates to situations in which the actor’s expert knowledge of the causes of harm is relevant to the relationship of risk between the parties, but not to situations where this knowledge has no such relevance.78
4.4 An approach to cases involving negligently inflicted psychiatric injury which is both principled and pragmatic
Relating the extent of the right to physical and psychological integrity back then to the legal elements in a claim of negligence, an approach to cases involving negligently inflicted psychiatric injury emerges. In particular, the discussion above affects the assessment of the duty of care as well as the issue of remoteness. The Kantian notion of purposivity underpins Lord Atkin’s neighbour principle with this principle reflecting the idea that legal responsibility should be imposed only when one is morally responsible for causing injury to another. The duty and remoteness questions relate to establishing the required normative connection
78 Beever discusses these circumstances in Rediscovering the Law of Negligence (Hart Publishing, 2007) 87-96 and in A Theory of Tort Liability (Hart Publishing, 2016) 184-5.
108 between the defendant’s wrongdoing and the claimant and their resulting injury, with the issue of duty establishing the connection between this wrongdoing and the particular claimant, and the issue of remoteness relevant to the connection between the defendant’s wrongdoing and the claimant’s particular injury. If either cannot be established, it cannot be concluded that there was a sufficient normative connection between the defendant’s wrongful action and the claimant’s resulting injury.
Duty is affected where there is a limited common ability to appreciate a particular risk, as psychiatric injury to the particular claimant (or class to which the claimant belongs) will not be reasonably foreseeable. In the language of Lord Atkin, only when it is adjudged that those in the general community have the ability to appreciate the risk of particular injury to another by specific actions can it be concluded that the defendant ought to have had that other in mind as one who was so closely and directly affected by the defendant’s acts that the defendant ought to have had that other in contemplation when directing their mind to the acts in question. Characterised in this way, the objective reasonable person standard against which the defendant’s actions are judged when considering the issue of duty represents an attempt to establish the necessary normative connection between the defendant’s wrongful act and the particular claimant in question. The issue of remoteness is also affected.79 Only when it is adjudged that those in the general community have the ability to appreciate the risk of psychiatric injury to another as a result of specific actions can it be said that this risk was reasonably foreseeable. Where this is not the case it may be concluded that the claimant’s injury was also too remote a consequence of the defendant’s actions.
An overall picture emerges of the shape of the law which is consistent with Beever’s theory so far as the elements of duty of care and remoteness are concerned. The overriding test in relation to the existence of a duty of care consistent with this theory is the Donoghue v Stevenson80 test of reasonable foreseeability, informed by a mechanism which takes into account community understandings and expectations in relation to the risks of psychiatric disorders as a result of exposure to specific types of trauma. The overriding test for remoteness consistent with this
79 The remoteness test consistent with this perspective is the test of reasonable foreseeability put forward by Viscount Simonds in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1) [1961] AC 388. For further discussion of this point, see chapter 2. 80 [1932] AC 562.
109 theory is the Wagon Mound (No 1)81 test outlined by Viscount Simonds, also informed by this mechanism. This mechanism reflects the extent to which the Kantian right to physical and psychological integrity exists. The effect of it is that individuals are only expected to be able to appreciate the risk of psychiatric injury to others which is common in the community to those with no special education or training. The mechanism proposed in this thesis is to consider in relation to both the duty and remoteness tests: whether the risk of psychiatric disorder suffered by the claimant was appreciable as a matter of community understandings and expectations, that is, by those in the community with no special education or training. This approach attempts to establish the necessary normative connection between the defendant’s wrongdoing and the claimant and their resulting injury.
As discussed in chapter 1, the law in relation to negligently inflicted psychiatric injury is in many ways ‘a patchwork quilt of distinctions which are difficult to justify.’82 There have been a number of responses to this regrettable state of affairs, each of which is potentially problematic. One response has been to relax the rules of liability in such claims, leaving reasonable foreseeability as the only guiding principle.83 Another response has been to argue that the existing clear but arbitrary rules should be maintained and that any expansion should be left to Parliament.84 Leaving liability simply to the test of reasonable foreseeability based on mere predictability has the potential to lead to too many claims. On the other hand, maintaining clear although ultimately arbitrary rules results in the law acting in an unprincipled and unjust manner, and in the potential denial of meritorious claims. Each of these suggestions has the potential to lead to results which may bring the law into disrepute and ought to be treated with caution. It might be thought that this is simply a result of the complexity of the subject matter and that this is a reality which ought to be accepted. This appears to be the position taken by Lord Steyn when he stated in White v Chief Constable of the South Yorkshire Police:85 ‘In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way which is coherent and morally defensible.’86
81 [1961] AC 388. 82 See White v Chief Constable of the South Yorkshire Police [1999] 1 All ER 1, 38 (Lord Steyn). 83 See, eg, Peter Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (Lawbook Co, 2nd ed, 2006). 84 The only sensible strategy as far as Lord Steyn was concerned was for the courts to say ‘thus far and no further’: White v Chief Constable of the South Yorkshire Police [1999] 1 All ER 1, 39. 85 [1999] 1 All ER 1. 86 Ibid at 39.
110
The significance of the community understandings mechanism is that it is principled and at the same time pragmatic. It is able to achieve a number of goals which have previously been considered to be irreconcilable and so challenges this orthodoxy. First, being connected to the general principles of negligence outlined in Donoghue v Stevenson,87 it can be argued that it is a coherent and principled approach to the duty of care in cases of negligently inflicted psychiatric injury. Second, it is morally defensible in the sense that it justifies liability only when it can be said that the defendant is morally responsible for causing the claimant’s injury. This mechanism, applicable to all cases of negligently inflicted psychiatric injury, takes into account the normative matters discussed previously and alters the Donoghue v Stevenson88 and Wagon Mound (No 1)89 tests in cases of negligently inflicted psychiatric injury in a way which is consistent with Beever’s principled approach to the law of negligence.
It is contended that this approach is at the same time pragmatic. Because of the requirement of normative equality at the heart of this approach, it does not place too great or too little a burden on either the claimant or the defendant. Rather, this approach maintains the pre-existing transactional equality between the parties by reconciling their ‘substantially clashing interests’ according to a universal law of freedom. This approach also responds to some of the other most common fears expressed by the courts regarding claims for negligently inflicted psychiatric injury, namely fears of indeterminate liability, and of an opening of the floodgates of litigation. By connecting the relevant standard when determining reasonable foreseeability of psychiatric injury to the ability to appreciate risk which is common in the general community, this approach extends the right to physical and psychological integrity only so far as is determinate amongst those in the general community with no special education or training. Where the risk of psychiatric injury to the claimant is indeterminate to the general community, this mechanism reflects the limited extent of the claimant’s right to physical and psychological integrity in this circumstance, resulting in there being no requisite normative connection between the defendant’s wrongdoing and the claimant (relevant to duty) and the claimant’s resulting injury (relevant to remoteness). In such a circumstance, it may be concluded – in language familiar to lawyers – that because psychiatric injury is not reasonably foreseeable, the claimant’s action
87 [1932] AC 562. 88 [1932] AC 562. 89 [1961] AC 388.
111 must fail for want of duty and because the claimant’s injury was too remote a consequence of the defendant’s actions.
This approach also responds to the fears of the floodgate of litigation opening. According to this approach, where the risk of psychiatric injury to the claimant as a result of exposure to trauma is appreciable at a community understandings level, the claimant possesses a right to physical and psychological integrity. This places a correlative duty on defendant, with any interference with this right by the defendant therefore being wrongful in the moral and the legal sense. According to this approach, were there to be a flood of litigation, this would be an indication not of too many claims being brought but of too many instances of wrongful interference with others’ rights to physical and psychological integrity. The function of the law is to protect these rights and reflect the norm against injuring others. The flood of litigation should then be seen in this light, functioning to bring home the existence of this norm to the wider community. This in turn will have the normative effect of promoting more reasonable behaviour with respect to the particular risks in question.
It is significant that community understandings, standards or expectations are already considered relevant in determining the content of the law in a number of contexts. In considering whether someone is guilty of defamation, the courts apply a test which refers to the ‘ordinary, reasonable member of society’ which incorporates a consideration of community standards.90 In their joint judgment in Radio 2UE Sydney Pty Ltd v Chesterton,91 French CJ, Gummow, Kiefel and Bell JJ stated in relation to this test:
The expression does not necessarily import a particular social standard. It may be seen as a benchmark by which some views would be excluded from consideration as unacceptable. It confirms that the hypothetical referee is a person who will apply general community standards. It may be taken to refer to ordinary decent persons.92
90 See Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, 573 (Kirby J); Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, 301; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505; Parmiter v Coupland (1840) 6 M & W 105, 108; Lewis v Daily Telegraph Ltd [1964] AC 234, 258, 285. 91 [2009] HCA 16. 92 [2009] HCA 16, [40].
112
The test for obscenity and indecency in Australia also uses a test which incorporates community standards. This test, from Crowe v Graham,93 judges particular material the subject of such an action in light of whether it would offend ‘the modesty of the average man or woman in sexual matters’.94 Referring explicitly to community expectations in Crowe, Windeyer J stated that what was offensive was to be determined by reference to ‘contemporary standards, community standards … those currently accepted by the Australian community.’95 Similarly, when deciding whether a person has been vilified under s 18C of the Racial Discrimination Act the material in question is viewed from the perspective of an ordinary, reasonable person.96
The community understandings test in this thesis also reflects comments made by judges in the cases concerning negligently inflicted psychiatric injury. It reflects the insightful comments made by Lord Wilberforce in McLoughlin v O’Brian97 regarding claims for negligently inflicted psychiatric injury:
Although we continue to use the hallowed expression ‘nervous shock’, English law, and common understanding, have moved some distance since recognition was given to this symptom as a basis for liability. Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact. It is safe to say that this, in general terms, is understood by the ordinary man or woman who is hypothesised by the courts in situations where claims for negligence are made.98
Also reflecting the community understandings test are the comments of Lord Bridge in the same case. Giving consideration to what the test of reasonable foreseeability required, His Honour stated:
93 (1968) 121 CLR 375. 94 (1968) 121 CLR 375, 379 (Barwick CJ). 95 (1968) 121 CLR 375, 399 (Windeyer J). For further discussion of this point, see Des Butler and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5th ed, 2015) [9.540]. 96 Eatock v Bolt (2011) 197 FCR 261 [19]. 97 [1982] 2 All ER 298. 98 Ibid 301.
113
A moment’s thought will show that the answer to that question depends on what knowledge is to be attributed to the hypothetical reasonable man of the operation of cause and effect in medicine.99
The community understandings mechanisms is also consistent with the current common law approach as reflected in Tame v New South Wales; Annetts v Australian Stations Pty Ltd100 and Gifford v Strang Patrick Stevedoring Pty Ltd.101 First, there is consistency between these two approaches in the sense that for both, reasonable foreseeability is the overriding test. Secondly, there is consistency between the two approaches in that the ‘considerations’ which are relevant to the overriding test of reasonable foreseeability at common law may be conceived of as instantiations of the common understandings test in certain fact situations.
The direct perception consideration can been seen to provide an indication of when the risk of psychiatric injury will be appreciable at a community understandings level, particularly in situations where the accident victim is not known to the claimant. Whether the claimant was in a close and loving relationship with the accident victim will provide an indication of when this risk will be appreciable at a community understandings level, regardless of whether the claimant directly witnessed the accident in question. The general relationship between the parties will provide further indication as to whether the risk of psychiatric injury to the claimant was appreciable by the defendant.102 The requirement for a recognisable psychiatric illness recognises that interferences with the right to physical and psychological integrity must be more than simply transient or minor.103 This is required as insults to a person’s emotional wellbeing, whilst no doubt upsetting, does not deprive them of ‘the means of achieving her purposes.104 And the normal fortitude consideration operates to maintain the transactional equality between the parties by setting the norm at a point which treats each party’s interests as being of equal importance to the law.
99 Ibid 312. 100 (2002) 211 CLR 317, 374 [170]. 101 (2003) 214 CLR 269. 102 These points will be considered in much greater depth in Part III. 103 The exception to this is the sudden shock consideration, which is not consistent at all with the approach advanced in Part II. These arguments are considered in greater depth in chapters 5-9. 104 Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016) ch 12.
114
The normal fortitude doctrine, when considered as a matter relevant to an overriding test of reasonable foreseeability – as it was by Lords Wright and Porter in Bourhill and by the High Court in Tame – is consistent with Beever’s principled approach because it anchors liability to community understandings of the perception of risk. The test in this form operates to ensure that the claimant is not expected – as a matter of interpersonal morality – to be able to appreciate the risk of psychiatric injury to another which would not be appreciable to anyone else in the community as a matter of general knowledge. Conceived of in this way this doctrine treats the defendant’s right to freedom of action and the claimant’s right to psychological integrity as being of equal value in the eyes of the law. In circumstances where the defendant has particular knowledge of the claimant’s unusual susceptibility, psychiatric injury to the claimant may still be found to be reasonably foreseeable notwithstanding that they may not be a person of ordinary fortitude. In this sense the normal fortitude consideration has much in common with this corrective justice approach based on common understandings, with both of these mechanisms operating to ensure that both claimants and defendants are given the maximum amount of freedom possible that is consistent with the freedom of all others.
According to this corrective justice approach, the claimant’s susceptibility may be relevant to whether the defendant is able to appreciate the risk of harm to the claimant as a matter of community understandings and expectations. However, it matters little to the question of moral culpability whether the claimant is actually a person of normal fortitude if such a determination could even be made in any particular case.105 Rather, the matter of critical importance is whether the defendant has breached the norm against injuring, and, in the absence of specific knowledge of the claimant’s peculiar susceptibility, this can only be done by considering community understandings and expectations. It is to this end that the normal fortitude rule as a consideration relevant to the overriding question of whether the risk of harm to the claimant was appreciable is relevant.
This rule is justifiable from the perspective of corrective justice as it ensures the transactional equality between the parties is maintained in all circumstances. The normal fortitude rule in this form ensures that the claimant’s susceptibility to psychiatric harm is taken into account when determining the defendant’s moral culpability, but only when it is just to do so. This
105 See Des Butler, ‘Susceptibilities to Nervous Shock: Dispensing with the Mythical ‘Normal Person’’ (1997) 1 Macarthur Law Review 107.
115 ensures that the point at which the norm against injuring is set is not at the subjective level of the particular claimant, but rather, at an objective level which is consistent with community understandings and expectations. As a result, the rule in this form is morally justified. It ensures that in cases where the defendant cannot be considered to have been morally culpable for causing the claimant’s harm, liability will likely be denied.106 On the other hand the rule in this form also allows a finding of liability when the defendant is morally culpable for causing the claimant’s harm, notwithstanding the claimant in fact being a person with unusual susceptibility to psychiatric harm. As such, liability is not prevented by the rule in this form where the necessary connection between the defendant’s wrongful actions and the claimant and the claimant’s injury can be established, and as such, the rule is well-attuned to achieving corrective justice between the parties.
Significantly, there are also numerous judicial statements in the leading cases which reflect a concern to link the test of reasonable foresight to community standards and expectations.107 These will be considered in depth in Part III.
4.5 Conclusion
Cases involving negligently inflicted psychiatric injury have often presented significant difficulties for courts. Scientific questions relating to the factors playing a causal role in the onset of psychiatric disorders are often complex and scientific understandings of the onset of psychiatric injuries are often far less advanced when compared to such understandings of the onset of physical injuries. Furthermore, there are limitations in the extent that those in the general community are able to appreciate the risks of particular psychiatric injuries resulting from specific actions. For these reasons, a desire by the courts to develop an approach based solely on reasonable foreseeability which reflects the most up to date scientific understandings for reasons of principle has been continually shadowed by fears that such an approach will be unworkable, likely resulting in indeterminate liability and an opening of the floodgates of litigation.
106 Such as Tame v New South Wales (2002) 211 CLR 317. This will be considered in chapter 8. 107 This normative framework logically may also have application in relation to cases commonly considered to involve purely physical injuries. However, such a claim requires more evidence than is provided in this thesis in order to convincingly be made. That this is not taken up in this thesis is merely a reflection of the fact that claims involving physical injuries are not the primary focus of this project.
116
This chapter, together with chapter 2, has sought to address the first primary hypothesis of this thesis. In chapter 2 Beever’s principled approach to the law of negligence was presented as a theoretical basis from which to present an approach to cases involving negligently inflicted psychiatric injury which is both principled and pragmatic, the task of the present chapter. In this chapter, Beever’s theory of negligence has been applied and extended to cases of negligently inflicted psychiatric injury. A common understandings approach relevant to the tests of duty and remoteness has been proposed which, it has been argued, is able to both extend and contract liability for reasons of principle. Moreover, it has also been argued that this approach responds to unfair burden, indeterminacy, and floodgates fears. As such, it is argued that this approach is a challenge to the orthodox understanding that a choice must be made between an approach which is principled and an approach which is pragmatic.
This approach is based on an argument that a right to physical and psychological integrity arises pursuant to Beever’s principled approach when applied to cases involving negligently inflicted psychiatric injury. In order to determine the extent of this right and therefore the limits of the correlative duty of care and whether the claimant’s injury is too remote a consequence of the defendant’s wrongful actions, it has been argued that the Donoghue v Stevenson108 test of duty and the Wagon Mound (No 1)109 test of remoteness are the appropriate tests of duty and of remoteness respectively, where they are supplemented by considering: whether the risk of psychiatric disorder suffered by the claimant was appreciable as a matter of community understandings and expectations, that is, by those in the community with no special education or training.
It has been argued that this approach reflects the existence and extent of the Kantian right to physical and psychological integrity and will reflect whether the necessary normative connection can be established between the defendant’s wrongful actions and the claimant and their resulting injury. This deceptively simple consideration gives equal weight to the substantially clashing interests of the claimant and the defendant, and is coherently connected to the profound moral norms underpinning corrective justice and Kantian right. As this
108 [1932] AC 562. 109 [1961] AC 388.
117 approach is reflective of these profound matters of morality, it makes distinctions between claimants which, from the perspective of Beever’s theory, are normatively justified.
This draws to an end Part II of this thesis. Part II – comprising chapters 2, 3, and 4 – has addressed the first primary hypothesis on this thesis and suggested an approach to cases of negligently inflicted psychiatric injury which is both principled and pragmatic. In Part III – comprising chapters 5, 6, 7, 8, and 9 – the second primary hypothesis is addressed. These chapters analyse the leading cases and the civil liability legislation with the aim of testing whether the approach advanced in Part II provides an appropriate basis for understanding and explaining the law relating to pure psychiatric injury.
118
PART III ANALYSIS Chapter 5: Analysis of Leading Common Law Cases: Coultas, Dulieu and Hambrook – Early Threads of Corrective Justice
5.1 Introduction
Part III is focussed on addressing the second primary hypothesis of this thesis, namely, that the approach suggested in Part II provides a suitable basis for understanding and explaining the law relating to negligently inflicted psychiatric injury. It should be made clear that the analysis of the fit of the theories to the law is not strictly a comparison of the theories with the law ‘as it is’. Rather, being interpretive in nature, the analysis in this thesis regards positivist determination of the conditions of legal validity incomplete and builds a moral enquiry into the determination of the law.1
Whilst the approach adopted in this thesis does not consider institutional history to provide a complete explanation of the law, it nonetheless considers this history to be relevant. It is much harder to make the case that a theoretical approach provides a basis for understanding and explaining a particular area of law if it is completely at odds with an orthodox understanding of the law. As such, the analysis is also concerned with whether this approach is grounded in institutional history, in other words, with the findings of the courts in the leading cases. As such, rather than being simply concerned with whether the approach advanced in this thesis is normatively coherent (the primary concern of pure, non-hybrid interpretivist perspectives) or whether this approach is reflected in the cases (the primary concern of positivist perspectives), the analysis attempts to make connections between the normative aspects of the theories used and the law in the leading cases.2
1 See Nicos Stavropoulos, ‘Legal Interpretivism’, The Stanford Encyclopedia of Philosophy (Summer 2014 Edition), Edward N Zalta (ed.): http://plato.stanford.edu/archives/sum2014/entries/law-interpretivist/. 2 For discussion as to the difference between hybrid interpretivism and pure, non-hybrid interpretivism, see Nicos Stavropoulos, ‘Legal Interpretivism’, The Stanford Encyclopedia of
119
Chapters 5-8 are concerned with analysing the extent to which historical developments in the principles of liability at common law are consistent with the corrective justice approach to cases of negligently inflicted psychiatric injury advanced in chapter 4. Chapter 9 focusses on the civil liability legislation and its effect on the law. Chapter 5 begins with an explanation of the analysis undertaken in Part III. This is followed by analysis of Victorian Railways Commissioners v Coultas,3 Dulieu v White & Sons,4 and Hambrook v Stokes Brothers.5
5.2 Assessing the common ability to appreciate the risk of psychiatric injury
In Part III of this thesis, the fit between the leading cases and the approach to cases of negligently inflicted psychiatric injury presented in chapter 4 will be assessed. This involves considering first whether the outcome of each case is consistent with the outcome that would have been reached according to this approach. It also involves considering whether the legal rules applied by the court in each relevant case were conceptually consistent with this approach.
Second, the leading cases will be discussed from the perspective of whether there is transparency between the theories and the cases; that is, whether the reasons for decision given by the judges in each case are consistent with this approach. The reasons for decision given by the judges are regarded as internal explanations of the law. In the case of common law rules, this means the reasons provided by the judges in the most important cases.6 As a self- understanding phenomenon, a theory which is consistent with the reasons of the judges in the most important cases is preferable to one which is not.7 Attention will also be given to whether the reasoning of judges is consistent with other important features of the theories, such as the notions of purposivity and coherence.8
The analysis is also concerned with whether the approach advanced in this thesis presents the law as unified and coherent, that is, whether the various aspects of the law can be linked to a
Philosophy (Summer 2014 Edition), Edward N Zalta (ed.): http://plato.stanford.edu/archives/sum2014/entries/law-interpretivist/. 3 (1888) App Cas 222 (‘Coultas’). 4 [1900] All ER Rep 353 (‘Dulieu’). 5 [1924] All ER Rep 110 (‘Hambrook’). 6 Ibid 24. 7 Ibid. 8 The important features of Weinrib’s and Beever’s theories were discussed above in chapter 2.
120 particular master value, in this case, Kantian right operating within a corrective justice framework. Theories which are coherent are more likely to be able to ‘reveal… an intelligible order in the law’, and as such, are preferable to those which are not.9 The argument about the coherence of the common understandings test with corrective justice and Kantian right has primarily been advanced above,10 however, where relevant in relation to the particular cases considered will be further commented upon.
And finally, the analysis in Part III is also concerned with whether the approach advanced in this thesis presents the law in a morally justifiable manner. A theory which is able to satisfy this criterion is preferable to one which is not, as law’s claim to authority rests in no small part on whether it provides morally justifiable reasons to comply with its requirements.11 As with the coherence criteria, chapter 4 contains the primary argument that the approach advanced in Part II of this thesis presents the law in a morally justifiable manner. However, the moral justifiability of this approach will be further discussed where relevant to the cases analysed in the following chapters.
In considering whether each case is consistent with the corrective justice approach advanced in Part II, a few points should be made as to how an argument will be made regarding whether the risk of the particular mental disorder suffered by the claimant was appreciable to an ordinary member of the community at the time of the accident in question. The determination of whether a right to physical and psychological integrity existed at a particular point in time is a normative question. However, in order to make this determination, a range of non- normative pieces of evidence can be drawn upon including scientific, sociological and historical evidence. Such evidence is accordingly considered in relation to each case below under the heading ‘Prevailing understandings of the causes of mental disorders.’
Both modern scientific understandings of the causes of mental disorders as well as scientific understandings at the time of each case will be considered. Whilst scientific understandings of the causes of mental disorders are clearly also relevant the issues of causation, this thesis focuses only on such understandings for the purposes of considering matters relating to the duty of care. It is necessary to consider this evidence as it provides important contextual
9 Ibid 11. 10 See section 4.4. 11 Rediscovering the Law of Negligence (Hart Publishing, 2007) 13-5.
121 information. As this is a normative question, it must be determined by evidence which is of universal application and part of a shared reality. The development of knowledge based upon the scientific method is one of the most commonly accepted forms of accumulation of knowledge known to humanity, and scientific knowledge is therefore an appropriate source of evidence upon which to begin to determine common understandings.
However, by itself, evidence of scientific knowledge is likely to be insufficient in attempting to determine common understandings. To simply equate common understandings with scientific understandings would be to ignore the reality that understandings of scientific knowledge throughout the general community generally lag behind scientific understandings. The common law, being reactive by nature, also generally follows behind science. Windeyer J’s comments in Mount Isa Mines v Pusey12 ring particularly true in this context, that the ‘law, march[es] with medicine but in the rear and limping a little’.13
It is recognised that the task of assessing general community understandings at any point in time is fraught with danger. Unless reliable empirical research has been conducted on the particular topic of concern at the particular time and place of interest, one can do little other than review the available historical evidence and make relevant inferences. This is likely also to be more difficult to do reliably the further back one goes in time. In recognition of this legitimate concern, attempts will be made wherever possible to consider evidence from a range of differing sources so that the inferences made can be strengthened as much as possible. It should also be kept in mind that any conclusions reached on the basis of inferential reasoning alone are unlikely to be as strong as arguments based on empirical research, and as such, are likely to always be subject to further confirmation.
5.3 Victorian Railways Commissioners v Coultas (1888)14
In this case the Privy Council considered a claim for damages made by Mrs Coultas, who alleged that she had suffered psychiatric injury as a result of the defendant’s servant’s negligence. Mrs Coultas suffered fright leading to psychiatric injury as a result of the horse- drawn buggy in which she was travelling nearly being struck by an oncoming train. This was
12 (1970) 125 CLR 383. 13 Ibid 395. 14 (1888) App Cas 222 (‘Coultas’).
122 caused by the defendant’s servant’s actions. The Privy Council was strongly influenced by the lack of physical impact between the train and the claimant, considering this to be relevant to the issue of whether the claimant’s injury was too remote from the defendant’s actions. Sir Richard Couch, delivering the court’s judgment,15 stated that such an injury in the absence of physical injury could not be considered ‘a consequence which, in the ordinary course of things, would flow from the negligence of the gate-keeper.’16 This was despite the court recognising that the medical evidence showed that Mary Coultas’ illness resulted from the fright she suffered.17 The Privy Council expressed its concerns relating to a proliferation of claims and the difficulties that would face the courts if liability for nervous shock was extended in the way that was proposed.18
At the time Coultas was decided duty was determined according to whether the case fell within an established duty category, and remoteness depended on the The Notting Hill natural and reasonable result test.19 The law of negligence and the concept of the duty of care had only come into being relatively recently at the time of this decision.20 The issue of duty did not arise in Coultas because the claimant’s injury occurred at a level crossing. This meant that the claimant was able to establish she was owed a duty of care because she could show her case fell within an established duty category.21 Delivering the judgment of their Lordships,22 Sir Richard Couch stated that the claimant had to show that her damages were ‘the natural and reasonable result of the defendant’s act; such a consequence as in the ordinary course of things
15 Made up of Lords FitzGerald and Hobhouse, Sir Barnes Peacock, and Sir Richard Couch. 16 Victorian Railways Commissioners v Coultas (1888) App Cas 222, 225. 17 Ibid. 18 Ibid. 19 (1884) 9 PD 105; Victorian Railways Commissioners v Coultas (1888) App Cas 222, 225-6. The legal basis upon which plaintiff’s claim failed in Coultas was remoteness, i.e., in the absence of impact between the plaintiff and the defendant, the plaintiff’s injury was too remote a consequence of the defendant’s actions. However, the Judicial Committee regarded the question of impact and of physical injury to be separate questions. For further discussion of this point, see Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 38. 20 The duty of care was established as a necessary part of the law of negligence in the case of Heaven v Pender (1883) 11 QBD 503 (Brett MR): Winfield, ‘Duty in Tortious Negligence’ (1934) 34 Columbia Law Review 41; cited in Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 119, 151. 21 This duty category was established in the case of North Eastern Railway Company v Wanless [1874] 43 LJ QB 185. For further discussion of this point, see Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 57-8 . 22 Present were Lord Fitzgerald, Lord Hobhouse, Sir Barnes Peacock and Sir Richard Couch.
123 would flow from the act.’23 It is important to note that in finding against the claimant on the basis that she could not satisfy this test, the Privy Council did not explicitly require that the claimant suffer impact. Rather, the lack of impact simply underpinned the Privy Council’s reasons regarding remoteness.24
Although there were some relevant authorities in relation to the importance of impact to the test of remoteness, there was no binding authority and the case could therefore not be decided by deductive logic alone. The Privy Council could have referred to the Irish Court of Appeal in Byrne v Great Southern & Western Rly Co25 which had four years earlier considered the issue, finding impact not to be necessary.26 However, no mention of this case was made by the Judicial Committee.
The Notting Hill27 test of remoteness required the claimant to show that her damages were ‘the natural and reasonable result of the defendant’s act; such a consequence as in the ordinary course of things would flow from the act.’ However, there were other approaches open to the Privy Council with respect to the appropriate test of remoteness. Writing in 1878 in his book A Manual of Common Law for Practitioners and Students, Josia William Smith noted that a number of epithets had been used in attempting to define remoteness, including the requirement that there be a ‘proximate’, ‘natural’, or ‘probable’ relationship between the defendant’s negligence and the claimant’s damage.28 Pollock CB had also proposed a test in two cases a
23 Victorian Railways Commissioners v Coultas (1888) App Cas 222, 225. 24 The Privy Council did not go so far as to find impact causing injury a necessary requirement. However, Coultas was nonetheless cited as authority for this proposition in a number of American cases: see, eg, Spade v Lynn and Boston Rail Road 168 Mass 285, 47 NE 88, 89 (1897); Braun v Craven 175 Ill 401, 51 NE 657, 659 (1898); McGee v Vanover 148 Ky 737, 147 SW 742, 744-5 (1912). See Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 54, fn 211. 25 (1884) 26 LRI 428. 26 This decision was relied upon only two years after Coultas in Bell v The Great Northern and Western Railway Co (1890) 26 LR Ir 428, in which case the Irish Court of Appeal found that ‘nervous shock’ was to be distinguished from ‘mental shock’, with the former amounting to a physical injury: see Des Butler, Damages for Psychiatric Injury (Federation Press, 2004) 37-8. Whilst not being binding on the Judicial Committee, Byrne was no doubt a relevant decision on the issue of impact in relation to cases of negligently inflicted psychiatric injury, and was considered to be important later in Dulieu: see section 5.4. 27 (1884) 9 PD 105. 28 Joshia William Smith A Manual of Common Law for Practitioners and Students (Stevens & Sons Ltd, 11th ed, 1898) 452; cited in Danuta Mendelson, The Interfaces of Medicine and Law:
124 few decades earlier which limited the damage a person was required to anticipate and guard against to only that which was a reasonable consequence of one’s actions.29 Whilst the reasonable foreseeability test proposed by Pollock CB was rejected as a test of remoteness in 1870 in Smith v London and South Western Railway,30 the Privy Council in Coultas was technically free to follow Pollock CB’s approach, or any of the approaches noted by Smith.31
5.3.1 Prevailing understandings of the causes of psychiatric disorders
In order to analyse whether this case was consistent with the principled and pragmatic approach, it must be considered whether the ordinary member of the community at the time of Mrs Coultas’ accident would have been able to appreciate the risk of psychiatric injury to Mrs Coultas in the circumstances. It is particularly difficult to assess a nebulous concept like common understandings when it is so far back in time, however, there are a number of telling pieces of evidence which can be referred to for this purpose.32 The first is scientific understandings of the causes of mental disorders.
By modern day scientific understandings, fear of being struck and killed by a large vehicle has been associated with the onset of PTSD and other anxiety disorders which are related to the experiencing of traumatic stress.33 However, at the time of Mrs Coultas’ accident, psychiatry as a discrete area of expertise was in its infancy. Furthermore, there was medical uncertainty up until at least the final decade of the nineteenth century as to whether the mental conditions that patients were presenting with were the result of physical or psychological processes.
The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 58. 29 In Rigby v Hewitt (1850) 5 Ex 240 and Greenland v Chaplin (1850) 5 Ex 243: cited in Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 58. 30 (1870) 40 LJ (CP) 21, 21 (Channell B), 21 (Blackburn J). 31 See Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 60. 32 Keeping in mind the proviso mentioned above at 5.2 regarding conclusions based on inferential reasoning alone. 33 Exposure to the extreme stress of an impending railway accident (even though narrowly avoided) is outside the normal range of human experiences, and of a character which has been associated with the onset of PTSD: see Mardi J Horowitz, ‘Stress-Response Syndromes: A Review of Posttraumatic Stress and Adjustment Disorders’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 54; Des Butler, Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 240, citing JL Herman, Trauma and Recovery (Pandora, 1992) 15-6.
125
There were researchers at the time of Mrs Coultas’ accident in 1886 who were of the opinion that exposure to non-physical trauma could result in physical and psychiatric symptoms, including Professor Burr, Dr Da Costa, Brodie, Abercrombie, Charcot and Erichsen.34 Professor George Burr first reported this phenomenon in the New York Medical Journal in 1865, describing psychological and physical symptoms resulting from being close to exploding shells.35 This was followed in 1871 with the publication of an article by Dr Da Costa in the American Journal of Medical Science, in which Dr Da Costa described such disorders as being due to ‘irritable heart’.36 In 1869, American neurologist George Beard described a type of neurosis resulting in changes to the functioning of the brain unrelated to physical lesions or heredity which he termed ‘neurasthenia’. This syndrome was simply ‘functional’, meaning evidence of it could not be seen under a microscope,37 despite sufferers being clearly and genuinely afflicted.38
Studies on the psychological effects of traumatic stress on individuals were conducted in the 1880s by researchers and clinicians such as Jean-Martin Charcot, Pierre Janet and also John
34 JE Erichsen, On Concussion of the Spine: Nervous Shock and Other Obscure Injuries of the Nervous System in Their Clinical and Medico-Legal Aspects (Longmans, Green & Co, 1882); JM Charcot, Clinical Lectures on Diseases of the Nervous System Delivered at the Infirmary of la Salpêtrière (New Sydenham Society, London, 1889). Also see B Brodie, ‘Injuries to the Spinal Cord’ (1837) 20 Medico-Chirurgical Transactions 118; J Abercrombie, Diseases of the Brain and Spinal Cord (Longmans, 4th ed, 1828); H Mayo, Outlines of Human Pathology (Burgess and Hill, 1836); A Boyer, Maladies Chirurgicales (Migneret, Cinquieme ed, 1814): cited in Michael R Trimble, Post-Traumatic Neurosis: From Railway Spine to Whiplash (John Wiley & Sons, 1981) 6-8. 35 G Burr, ‘Cases of Injuries of the Nervous Centres, From Explosion of Shells, Without Wound or Contusion’ (1865) 1 New York Medical Journal 428-32, cited in Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 92-3. 36 J M Da Costa, ‘On Irritable heart: A Clinical Study of a Form of Functional Cardiac Disorder and its Consequences’ (1871) 61 American Journal of Medical Science 17-52, cited in Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 92-3; Des A Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 218. 37 Des A Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 218; Ralph Colp, ‘History of Psychiatry’ in Kaplan & Sadock’s Comprehensive Textbook of Psychiatry Vol 2 (Lippincott Williams & Wilkins, 9th ed, 2009) 4478-9; Edward Shorter, A History of Psychiatry (John Wiley & Sons Inc, 1997) 130. 38 Edward Shorter, A History of Psychiatry (John Wiley & Sons Inc, 1997) 130.
126
Erichsen.39 Injuries to the nervous system as a result of railway accidents were common in the nineteenth century, and this lead to research into psychiatric disorders suffered as a result of such accidents.40 In 1866, Professor John Erichsen published a book on the phenomenon41 in which he claimed that organic injury – a condition he called ‘railway spine’ – could be caused by trauma in the absence of impact.42 This was followed by the publication by Erichsen of a further book on the topic in 1882.43 These publications, along with the work of others such as Clevenger,44 described psychological symptoms which were similar to the symptoms which can been seen in relation to modern understandings of PTSD.45
Charcot, a well-known expert on the topic at the time and director of the famous Salpêtrière infirmary in France, wrote in the late 1880s that neurological dysfunction was caused partly by the degeneration of the nervous system due to hereditary predisposition, and partly by exposure
39 Charles R Figley in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) xviii; Des A Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 220; Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) ch 2. 40 See Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 36. 41 E Erichsen, On Railway and Other Injuries of the Nervous System (Walton & Maberly); Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 37; Charles R Figley in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) xviii. 42 Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 38-40. 43 E Erichsen, On Concussion of the Spine: Nervous Shock and Other Obscure Injuries of the Nervous System in Their Clinical and Medico-Legal Aspects (Longman, Green, 1882); Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) xviii; Des A Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 220; Des Butler, ‘Identifying the Compensable Damage in “Nervous Shock” Cases’ (1997) 5 Torts Law Journal 1, 1. 44 S Clevenger, Spinal Concussion, (FA Davies, 1889); Charles R Figley in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) xviii; Des A Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 220; Des Butler, ‘Identifying the Compensable Damage in “Nervous Shock” Cases’ (1997) 5 Torts Law Journal 1, 1. 45 Charles R Figley in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) xviii; Des Butler, ‘Identifying the Compensable Damage in “Nervous Shock” Cases’ (1997) 5 Torts Law Journal 1, 1.
127 to physical or emotional shock.46 Emotional shock from severe and unanticipated fright by itself was regarded by Charcot as able to cause neurological dysfunction.47 Writing in 1889, Janet – an associate of Charcot – concluded that psychological symptoms could result from non-physical trauma. Janet wrote that traumatic events could cause hyperarousal, this having a negative impact on the ability to process information.48 This overwhelmed the individual, interrupting ordinary coping mechanisms, resulting in excessive automatic emotional and physiological reactions to events.49
However, this work was not uncontroversial at the time. Notwithstanding the work of Erichsen, Charcot, and Janet, the dominant view amongst European psychiatrists in the late nineteenth century was that those who went on to suffer from psychological symptoms following a traumatic event suffered from a hereditary weakness of the nervous system, making them predisposed to suffer such symptoms.50 Vehemently disagreeing with Erichsen was the surgeon Herbert Page, who regarded the symptoms experienced by those as a result of railway accidents as having psychological origins.51 Furthermore, many, such as Page, Shaw, and Le Gros Clark, regarded psychiatric symptoms resulting from exposure to traumatic events as being due in no small part to hereditary weakness.52 There was also a school of thought which regarded mental
46 JM Charcot, Clinical Lectures on Diseases of the Nervous System Delivered at the Infirmary of la Salpêtrière (New Sydenham Society, London, 1889); MS Micale, Approaching Hysteria: Disease and its Interpretations (Princeton University Press, 1995) 25; A Young, The Harmony of Illusions; Inventing Post-Traumatic Stress Disorder (Princeton University Press, 1995) 21; cited in Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 52. 47 Ibid. 48 Pierre Janet, L’Automatisme Psychologique: Essai de Psychologie Expérimentale Sur Les Formes Inférieures De L’Activité Humaine (Félix Alcan, 1889), cited in Bessel A van der Kolk and Jose Saporta, ‘Biological Response to Psychic Trauma’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 25. 49 Ibid. 50 Michael Trimble, Post-Traumatic Neurosis (Wiley, 1981), cited Horowitz, above n 145, 49. 51 H Page, ‘Injuries of the Spine and Spinal Cord Without Apparent Mechanical Lesion’ (1885), in Bessel A van der Kolk, Lars Weisaeth and Onno van der Hart, ‘History of Trauma in Psychiatry’, in Bessel A van der Kolk and Alexander C McFarlane (eds), Traumatic Stress: The Effects of Overwhelming Experience of Mind, Body, and Society (Guilford Publications, 2007) 48; Des A Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 220-1. Also see Des Butler, ‘Identifying the Compensable Damage in “Nervous Shock” Cases’ (1997) 5 Torts Law Journal 1, 1. 52 See H Page, Injuries of the Spine and Spinal Cord Without Apparent Mechanical Lesion (J and A Churchill, 1885); A Shaw, In Holmes’ System of Surgery (W Parker & Sons, 2nd ed, vol 2, 1870); F Le Gros Clark, Lectures on the Principles of Surgical Diagnosis (J and A Churchill,
128 conditions resulting from non-physical trauma as being due to a form of hysteria – that is, due to psychological causes particular to the patient – rather than due to exposure to trauma per se.53 Crucially, no general consensus had been reached between those experts in the area by the time of Mrs Coultas’ accident.54 Indeed, the rivalry between those who thought railway spine had organic origins and those who regarded the condition as psychologically-induced was fierce.55
Whilst there appeared to be no general consensus in the scientific community regarding the effects of trauma on the mind, there are other pieces of evidence which show that despite not understanding the scientific nuances involved, the ordinary member of the community may well have been familiar with the idea that psychical problems could be caused by exposure to trauma in the absence of physical injury. In particular, mental injury resulting from exposure to trauma is a subject which has appeared often in popular works of literature since antiquity onwards, particularly in writing which considers the experiences of soldiers in battle.56 There are many examples of this and a few examples here will be sufficient to support this contention. In the third century BC, the ancient Mesopotamian poem The Epic of Gilgamesh tells the story of Gilgamesh who suffers psychiatric symptoms as a result of the death of his friend in battle which appear to be similar to those related to the modern condition PTSD:
I wept for him seven days and nights till the worm fastened on him. Because of my brother I am afraid of death, because of my brother
1870); cited in Michael R Trimble, Post-Traumatic Neurosis: From Railway Spine to Whiplash (John Wiley & Sons, 1981) 30-1. 53 Page was one of the surgeons who regarded the psychiatric symptoms resulting from the trauma associated with railway accidents as being due to hysteria: see Herbert W Page, Injuries of the Spine and Spinal Cord Without Apparent Mechanical Lesion, and Nervous Shock, in Their Surgical and Medio-Legal Aspects (J & A Churchill, 1883) 147: cited in Eric Michael Caplan, ‘Trains, Brains, and Sprains: Railway Spine and the Origins of Psychoneuroses’ (1995) 69(3) Bulletin of the History of Medicine 387, 395. The distinction here is significant, as sufferers of hysteria were not ordinarily given the same degree of sympathy reserved for those suffering from diseases of organic origin: Carroll Smith-Rosenberg, ‘The Hysterical Woman: Sex Roles and Role Conflict in Nineteenth-Century America’, in Disorderly Conduct: Visions of Gender in Victorian America (Alfred A Knopf, 1985) 196-217: cited in Eric Michael Caplan, ‘Trains, Brains, and Sprains: Railway Spine and the Origins of Psychoneuroses’ (1995) 69(3) Bulletin of the History of Medicine 387, 394. 54 Eric Michael Caplan, ‘Trains, Brains, and Sprains: Railway Spine and the Origins of Psychoneuroses’ (1995) 69(3) Bulletin of the History of Medicine 387, 389. 55 Ibid. 56 G C Lasiuk and K M Hegadoren, ‘Posttraumatic Stress Disorder Part I: Historical Development of the Concept’ (2006) 42(1) Perspectives in Psychiatric Care 13, 14-5.
129
I stray through the wilderness. His fate lies heavy upon me. How can I be silent, how can I rest? He is dust and I too shall die and be laid in the earth for ever. I am afraid of death.57
Numerous other ancient pieces of literature tell the story of the suffering of psychiatric symptoms resulting from experiencing trauma. These include the story of a warrior from Athens named Epizelus who was so frightened during the battle of Marathon in 490 BC that he lost the sight in both eyes. Herodotus wrote of this soldier:
A strange prodigy likewise happened at this fight. Epizelus, the son of Cuphagoras, an Athenian, was in the thick of the fray, and behaving himself as a brave man should, when suddenly he was stricken with blindness, without blow of sword or dart; and this blindness continued thenceforth during the whole of his afterlife. The following is the account which he himself, as I have heard, gave of the matter: he said that a gigantic warrior, with a huge beard, which shaded all his shield, stood over against him; but the ghostly semblance passed him by, and slew the man at his side. Such, as I understand, was the tale which Epizelus told.58
Ancient literature tells the story of other psychiatric symptoms as a result of the trauma of battle. In Homer’s Iliad, the story is told of Patroclus, a soldier who is killed because he had gone into a stupor in the midst of battle, unable to continue fighting:
57 N K Sandars, ‘The Search for Everlasting Life’, in N K Sandars (Ed), The Epic of Gilgamesh (Penguin Books, 1972) 97-107: cited in Philippe Birmes, Leah Hatton, Alain Brunet, and Laurent Schmitt, ‘Early Historical Literature for Post-Traumatic Symptomatology’ (2003) 19 Stress and Health 17, 18; Marc-Antoine Crocq and Louis Crocq, ‘From Shell Shock and War Neurosis to Posttraumatic Stress Disorder: A History of Psychotraumatology’ (2000) 2(1) Dialogues in Clinical Neuroscience 47, 47. 58 See Herodotus, Book Six, In The Histories (transl. A De Sélincourt and J M Marincola) (Penguin Books, 1996) 325-371: cited in Marc-Antoine Crocq and Louis Crocq, ‘From Shell Shock and War Neurosis to Posttraumatic Stress Disorder: A History of Psychotraumatology’ (2000) 2(1) Dialogues in Clinical Neuroscience 47, 48; Philippe Birmes, Leah Hatton, Alain Brunet, and Laurent Schmitt, ‘Early Historical Literature for Post-Traumatic Symptomatology’ (2003) 19 Stress and Health 17, 18-19.
130
Patroclus was stunned; his shapely legs refused to carry him; and as he stood there in a daze, a Dardanian called Euphorbus came close behind and struck him with a sharp spear midway between the shoulders.59
Ancient literature also tells of the agony caused by memories of battle torturing the soldier during sleep, a common symptom of modern understandings of PTSD.60 This is also a common theme in classical literature.61 Whilst it is not likely the case that all members of the general public in the late nineteenth century would have been familiar with this ancient and classical literature, this does demonstrate that the idea that psychical disturbance can be suffered as a result of non-physical trauma was not necessarily novel.62
59 Homer, The Iliad (transl. E. Rieu) (Penguin Books, 1950): cited in Philippe Birmes, Leah Hatton, Alain Brunet, and Laurent Schmitt, ‘Early Historical Literature for Post-Traumatic Symptomatology’ (2003) 19 Stress and Health 17, 19, 20-1. Though this is attributed to the intervention of Apollo, the story nonetheless tells of the psychiatric effects of battle on the soldier. 60 For example, in De Natura Rerum, a work written in 50 BC, Lucretius wrote:
The minds of mortals … often in sleep will do and dare the same . . . Kings take the towns by storm, succumb to capture, battle on the field, raise a wild cry as if their throats were cut even then and there. And many wrestle on and groan with pains, and fill all regions round with mighty cries and wild, as if then gnawed by fangs of panther or of lion fierce: Lucretius, ‘Les Rêves’, in De Natura Rerum (transl. A Ernout) (Les Belles Lettres, 1985) 178-80: cited in Marc-Antoine Crocq and Louis Crocq, ‘From Shell Shock and War Neurosis to Posttraumatic Stress Disorder: A History of Psychotraumatology’ (2000) 2(1) Dialogues in Clinical Neuroscience 47, 48; Philippe Birmes, Leah Hatton, Alain Brunet, and Laurent Schmitt, ‘Early Historical Literature for Post-Traumatic Symptomatology’ (2003) 19 Stress and Health 17, 19.
61 For example, in Shakespeare’s Romeo and Juliet, Mercutio states:
Sometime she driveth o’er a soldier’s neck, And then dreams he of cutting foreign throats, Of breaches, ambuscadoes, Spanish blades, Of healths five fathom deep; and then anon Drums in his ear, at which he starts and wakes, And being thus frighted, swears a prayer or two, And sleeps again: Marc-Antoine Crocq and Louis Crocq, ‘From Shell Shock and War Neurosis to Posttraumatic Stress Disorder: A History of Psychotraumatology’ (2000) 2(1) Dialogues in Clinical Neuroscience 47, 48; Philippe Birmes, Leah Hatton, Alain Brunet, and Laurent Schmitt, ‘Early Historical Literature for Post-Traumatic Symptomatology’ (2003) 19 Stress and Health 17, 21-2.
62 The King James version of the Bible also refers to the suffering of psychiatric symptoms in war, warning that men should be removed from the front lines of battle when their mental condition is deteriorating:
When thou goest out to battle against thine enemies, and seest horses, and chariots, and a people more than thou . . . the officers shall say, ‘What man is there that is fearful and
131
Another important piece of evidence touching upon the question of the ordinary person’s ability to appreciate the risk of psychiatric injury at the time of Mrs Coultas’ accident is that the ordinary member of the public at the time may well have been quite familiar with the idea of railway accidents and their propensity to cause serious and lasting physical and mental harm. The advent of railways at the beginning of the industrial revolution marked a significant change in English society. The introduction of railways in Britain brought not only a significant improvement in the efficiency of the transportation of people and goods, but also deep anxieties throughout society.63 The general public become very quickly aware of the dangers posed by railways not only to their physical health but also to their mental well-being. The railway engine was a vehicle of unprecedented power and speed, and with that came the risk of accidents which were full of terrors the likes of which had not previously been encountered by the ordinary citizen. It has been argued that the railways brought to the public imagination at large the effects on the mind of major trauma which had hitherto been recognised only by those familiar with the trauma of the battlefield.64
Railway accidents in the mid-to-late-nineteenth century were not only horrific, but also occurred in staggering numbers. The Annual Report of the Board of Trade in the United Kingdom in 1857 reported 236 deaths and 738 injuries in railway accidents that year.65 Indeed, so common were railway injuries in the United Kingdom in the middle of the nineteenth century that a Royal Commission on Railways was established in 1867.66 Railway accidents were also relatively common in the United States of America. It was reported in The Lancet in 1867 that approximately 5,600 people were killed in railroad accidents in the United States of
fainthearted? Let him go and return unto his house, lest his brethren's heart faint as well as his heart: see Deuteronomy 20:1-9: Marc-Antoine Crocq and Louis Crocq, ‘From Shell Shock and War Neurosis to Posttraumatic Stress Disorder: A History of Psychotraumatology’ (2000) 2(1) Dialogues in Clinical Neuroscience 47, 47.
63 Ralph Harrington, ‘The Neuroses of the Railway’ (1994) 44(7) History Today 15, 15. 64 See Catherine Aird, ‘Dickens and Railway Spine Neurosis’ (2012) 108 The Dickensian 25, 26. 65 A Moore, A Hand-Book of Railway Law (WH Smith & Son, 1859) wwwii: cited in Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 36. This number excluded those accidents involving an element of contributory negligence and railway employees. 66 Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 40-1.
132
America in the previous year.67 By 1893, the number of people injured or killed in railway accidents in the United States had risen significantly to 47,729.68
Deaths and injuries resulting from railway accidents were such a common occurrence that from the mid-nineteenth century onwards, particular arrangements regarding access to medical treatment and compensation for passengers were made by railway companies in both England and in the United States of America.69 The first of the so-called ‘railway doctors’ in the United States of America were seen in 1849 on the Erie Railroad, followed in 1850 with medical services available on the Chicago and Galena Union, the Illinois Central, Chicago and Milwaukee, Michigan Central, Michigan Southern, and Lehigh Valley railroads.70 Later, United States railway medical organisations evolved into different forms of service, with some running their own hospitals, others making arrangements with local medical organisations, and others still forming mutual benefit societies.71 In Britain too, medical practitioners were employed by the railway companies to settle claims for compensation by passengers as a result injuries caused by railway accidents.72 Railway surgery became such a medical common speciality by the late nineteenth century that the National Association of Railway Surgeons was created in 1888.73
67 Anonymous, ‘Medical News’ (1867) The Lancet 806: cited in Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 36. 68 P Bailey and F Kennedy, ‘Injuries and Disorders of the Nervous System Following Railway and Allied Accidents’, in F Peterson, WS Haines and RW Webster (eds), Legal Medicine and Toxicology (WB Saunders Co, vol 1, 2nd ed, 1923) 397-440: cited in Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 36-7. 69 Mark Aldrich, ‘Train Wrecks to Typhoid Fever: The Development of Railroad Medicine Organizations, 1850 to World War I’ (2001) 75(2) Bulletin of the History of Medicine 254, 255. 70 Ibid 257. 71 Ibid 262. 72 Often this was to the passenger’s disadvantage, with claims commonly being settled for amounts much less than would likely have been awarded at trial: Anonymous, ‘Compensation for Railway Injuries’ (1867) The Lancet 799 (1 June 1867); Anonymous, ‘Actions Against Railway Companies’ (1867) 43 The Law Times 118: cited in Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 45-7. 73 The first meeting of the National Association of Railway Surgeons in June 1888 was attended by nearly 200 surgeons. By 1891 there were nearly 1000 members. A rival association was formed in 1894 which was called the American Academy of Railway Surgeons: Mark Aldrich, ‘Train Wrecks to Typhoid Fever: The Development of Railroad Medicine Organizations, 1850 to World War I’ (2001) 75(2) Bulletin of the History of Medicine 254, 265.
133
At least in part because they constituted such a threat to the body and the mind of passengers, fear of accidents whilst riding the railways was ever-present for the passenger.74 The Lancet produced a survey in 1862 regarding passengers’ experiences of railway travel and went on to comment that uneasiness and trepidation pervaded ‘the generality of passengers’.75 In the following year, The Lancet commented:
Accidents have been so frequent of late…that we may be said to have supped full of railway horrors, and railway travelling has become almost insupportable to persons of a nervous temperament, whose thoughts are solely occupied during a journey by speculations on possible dangers.76
In his book Gryll Grange published in 1860, author Thomas Love Peacock graphically demonstrated the common fear of railways when he wrote:
I see long trains of strange machines on wheels, With one in front of each, puffing white smoke From a black hollow column. Fast and far They speed…
But while I look, two of them meet and class, And pile their way with ruin. One is rolled Down a steep bank; one through a broken bridge Is dashed into a flood. Dead, dying, wounded, Are there as in a battle-field? Are these Your modern triumphs? Jove preserve me from them.77
Of the significance of railways to the public mind in the nineteenth century, Harrington opined that whilst this phenomenon:
74 Ralph Harrington, ‘The Neuroses of the Railway’ (1994) 44(7) History Today 15, 15-7. 75 Ibid. 76 Ibid. 77 Cited in Ralph Harrington, ‘The Neuroses of the Railway’ (1994) 44(7) History Today 15, 16.
134
represented the triumph of mechanisation and the embodiment of progress, it was also inherent with danger, bearing all the threatening ills of neurosis, destruction and degeneration which lay behind the façade of modernity.78
It was for this reason that Harrington argued that ‘the belief that the railway posed an insidious degenerative threat to the human mind and body became steadily more widespread from the 1860s onwards.’79 Of importance to the assessment of public awareness of the risk of psychiatric disorder as a result of railway accidents is that large numbers of claims for damages for railway spine were made in the mid-to-late-nineteenth century. Furthermore, large amounts were paid out by the English railways in compensation.80 The large numbers of injuries sustained in rail travel resulted in public pressure in the 1860s to make compensation more readily obtainable, this ultimately leading to the enactment of the Fatal Accidents Act 1864 by the British parliament which provided a cause of action to those injured in railway accidents.81 An earlier version of this Act had been enacted in 1846, although as the title of the Act suggested, provided a cause of action only for family members of those fatally injured. The 1864 Act extended liability to those who suffered non-fatal injuries.82
Following the publication of Professor John Erichsen’s On Railway and Other Injuries of the Nervous System83 in 1866, the subject of railway spine became a common topic of debate in the medical profession. There is also reason to suggest that the publication of Erichsen’s book resulted in the concept of railway spine entering the public consciousness. Writing not more than twenty years after On Railway and Other Injuries of the Nervous System was published, one commentator noted that Erichsen’s book resulted in railway spine entering into ‘the public mind as one of the expected events of railway travel.’84 It has been argued that the general
78 Ralph Harrington, ‘The Neuroses of the Railway’ (1994) 44(7) History Today 15, 16. 79 Ibid. 80 E M Brown, ‘Regulating Damage Claims for Emotional Injuries Before the First World War’ (1990) 8 Behavioural Sciences and the Law 421, 424. English railways paid out £2.2 million in compensation during from 1867-1871; Thomas Keller, ‘Railway Spine Revisited: Traumatic Neurosis or Neurotrauma?’ (1995) 50 Journal of the History of Medicine 507, 512. 81 Allard E Dembe, Occupation and Disease: How Social Factors Affect the Conception of Work- Related Disorders (Yale University Press, 1996) 109. 82 Ibid. 83 E Erichsen, On Railway and Other Injuries of the Nervous System (Walton & Maberly, 1866). 84 John G Johnson, ‘Concussion of the Spine in Railway Injuries’ (1883-84) 1 Medico-Legal Journal 515: cited in Eric Michael Caplan, ‘Trains, Brains, and Sprains: Railway Spine and the Origins of Psychoneuroses’ (1995) 69 Bulletin of the History of Medicine 387, 390.
135 public were by this time already familiar with the concept of physical conditions caused by irritation of the nerves, this perhaps explaining the public acceptance of railway spine.85
Public awareness of the risk of railway spine as a result of railway accidents might also be inferred from the extent to which the condition was referred to in the popular press at the time. After outlining Erichsen’s general views on the topic, one article, published on 3 November 1866 shortly after the publication of Erichsen’s book, claimed that ‘The subject of railway spine … possesses great interest to every railway director, manager, and working official, as well as to the multitude of passengers.’86 Another article, this one appearing in The Examiner on 10 November 1866, discusses the condition in some detail, stating ‘the public is most interested in that slighter form of injury which some surgeons have even begun to call ‘the Railway Spine’.87 Discussing the potential causes of this condition, the article states:
Concussion of the spine, ending in paralysis, resulted, in one of the cases here given, from so slight an accident as a trip down two or three stairs and bumping forcefully upon the heels. In a railway accident, a throwing of the body from side to side may cause a twist of head and trunk, producing wrench of the spine… Such are the injuries to which we are exposed by the mere shock and jar of railway accidents.88
Discussing the seeming disparity between the apparently minor nature of the accident and the serious physical and mental symptoms which result, the article states:
One of the most remarkable circumstances connected with Injuries of the Spine is, the disproportion that exists between the apparently trifling accident that the patient has sustained, and the real and serious mischief that has occurred. Not only do symptoms of Concussion of the Spine of the Spine of the most serious, progressive, and persistent character, often develop
85 Robert Ferrari and Edward Shorter, ‘From Railway Spine to Whiplash – The Recycling of Nervous Irritation’ (2003) Medical Science Monitor 27, 32. Ferrari and Shorter point to spa literature which was common in the early nineteenth century – claiming that relief could be found from irritation of one’s nerves – to make the point that this concept had been popularised at this time: ibid. 86 The Westmorland Gazette and Kendal Advertiser, ‘The “Railway Spine” – A New Disease’, 3 November 1866, 5. 87 The Examiner, 10 November 1866, 710. 88 Ibid.
136
themselves after what are apparently slight injuries, but frequently when there is no sign whatever of external injury.89
Thereafter and until around the turn of the twentieth century, newspaper articles concerning railway spine were not uncommon, appearing in the English press in 1868,90 1869,91 1872,92
89 Ibid. 90 The Pall Mall Gazette, ‘Railway Accidents’, 18 July 1868, 12. 91 On 7 August 1869, one newspaper reported three separate cases of claims made against railway companies for damages as a result of railway spine suffered due to a railway accident: see The Manchester Weekly Times, ‘Chatwood v The Lankashire and Yorkshire Railway Company’; ‘Foster v The Lankashire and Yorkshire Railway Company’; ‘Jelly v The London and North- Western Railway Company’. 92 See The Wexford Constitution, ‘Caution to Nursemaids’, 31 July 1872, 4; The Shepton Mallet Journal, ‘Caution to Nursemaids’, 2 August 1872; The Southern Reporter, ‘Carelessness of Nurses’, 5 December 1872.
137
1878,93 1888,94 1889,95 1893,96 1894,97 1895,98 1902,99 1904100 and 1907.101 These articles were often concerned with the topic of injured passengers suing the negligent railway companies for damages for injuries suffered in railway accidents.102 One such article published on 18 July
93 See The Western Daily Press, ‘Local Action Against the Great Western Railway Company, 4 March 1878, 3. 94 The Pall Mall Gazette, ‘Tittle Tattle for the Tea Table’, 29 November 1888, 7; The Manchester Courier and Lancashire General Advertiser, ‘The Empress of Russia’, 29 November 1888, 7; The Belfast News-Letter, ‘Second Edition’, 29 November 1888, 8; St James’s Gazette, ‘Court and Society’, 29 November 1888, 14; The Nottingham Evening Post, ‘The Empress of Russia’, 29 November 1888, 2; The Yorkshire Post and Leeds Intelligencer, ‘Ireland’, 30 November 1888, 5; The Sheffield Evening Telegraph, ‘Items of Interest’, 30 November 1888, 2; The Birmingham Daily Post, ‘News of the Day’, 30 November, 4; The Western Daily Press, ‘The Empress of Russia’, 30 November 1888, 7; The Evening Telegraph, ‘Empress of Russia Afflicted with “Railway Spine”’, 30 November; The Dundee Evening Telegraph, ‘Empress of Russia Afflicted with Railway Spine’ 30 November 1888, 2; The Dublin Daily express, ‘Illness of the Czarina’, 30 November 1888, 5; The Preston Herald, ‘Empress of Russia’, 1 December 1888, 10; The Jersey Independent and Daily Telegraph, 1 December 1888, 5; The Hampshire Advertiser, ‘The Late Railway Accident to the Czar and Czarina’ 1 December 1888, 2; The Bury and Norwich Post, ‘Sufferers from Railway Spine’ 4 December 1888, 3; The Banbury Advertiser, ‘Desecrating a Grave’, 6 December 1888, 6; The Cornish Telegraph, ‘The Czar and Czarina’, 6 December 1888, 3-4; The Whitstable Times and Herne Bay Herald, ‘Sufferers from Railway Spine, 8 December 1888, 6; The Banbury Beacon, ‘Desecrating a Grave’ 8 December 1888, 6; The Canterbury Journal, Kentish Times and Farmer’s Gazette, ‘Russia Preparing for War’, 8 December 1888, 6. 95 A number of similar articles all entitled ‘Railway Spine’ were published in England, Ireland and Scotland in 1889 regarding a Berlin engine-driver who suffered nervous shock after narrowly averting a railway collision: The London Evening Standard, 20 November 1889, 3; The Cambridge Daily News, 20 November 1889, 3; The Nottingham Evening Post, 20 November 1889, 2; Star of the East, 20 November 1889, 2; The Irish Times, 21 November 1889, 5-6; The Bradford Daily Telegraph, 21 November 1889, 3; The Leicester Daily Mercury, 21 November 1889, 3; The Dundee Evening Telegraph, 21 November 1889, 2; The Bristol Mercury, 21 November 1889, 7; The Chichester Observer, 27 November 1889, 2; The Sevenoaks Chronicle and Kentish Advertiser, 29 November 1889, 6; the Dover Express, 29 November 1889, 6; The Shepton Mallet Journal, 29 November 1889, 7; The Beverley and East Riding Recorder, 30 November 1889, 2; The Dworking and Leatherhead Advertiser, 30 November 1889, 2; The Sheffield Weekly Telegraph, 7 December 1889, 1. 96 See The Illustrated London News, ‘Doctor Charcot’, 26 August 1893, 244. 97 See The Northern Daily Mail, ‘The Effects of Explosives’, 27 January 1894. 98 See The Globe and Traveller, ‘The New Knee’, 14 June 1895; The London Evening Standard, ‘Medicine and the Law’, 14 September 1895. 99 See The Evening Star and Daily Herald, ‘From All Quarters’, 12 March 1902, 7. 100 See The Globe, ‘Medical Men as Witnesses’, 15 January 1904, 7; The Evening Post, ‘Passenger’s Substantial Award of Damages’, 4 August 1904. 101 See Times and Express, ‘“Railway Spine” and “Railway Brain”’, 20 December 1907, 8. 102 See, eg, The Pall Mall Gazette, ‘Railway Accidents’, 18 July 1868, 12; The Manchester Weekly Times, ‘Chatwood v The Lankashire and Yorkshire Railway Company’, 7 August 1869; The Manchester Weekly Times, ‘Foster v The Lankashire and Yorkshire Railway Company’, 7 August 1869; The Manchester Weekly Times, ‘Jelly v The London and North-Western Railway Company’, 7 August 1869; The Western Daily Press, ‘Local Action Against the Great Western Railway Company, 4 March 1878, 3; The Evening Post, ‘Passenger’s Substantial Award of Damages’, 4 August 1904.
138
1868 in the Pall Mall Gazette begins with the words, ‘Almost every person is interested in railway accidents,’ and goes on to state, ‘A good railway case in court often affords considerable gratification to the public’.103 Reporting that in 1863 there were 14 fatalities and 400 cases of injury as a result of railway accidents, and in 1864, 15 deaths and 698 injuries, the article discusses the phenomenon of railway spine, asserting that it differs from other injuries ‘only in degree’.104 The article insists that an injury caused by a railway accident:
Is a physical shock greater than can well be imagined, on account not only of the enormous momentum of the one train, but of the velocity with which the opposing object encounters it, and it is likewise a terrible mental shock. The horrid noise of the disabled engine, the cries of the wounded, crushed, or scalded sufferers, the apprehension lest another train should come up, sometimes, too, in the darkness of a tunnel or of the night, all these contribute to create a panic which, once endured, is remembered for life.105
Railway spine was also thrust into the public spotlight with stories of well-known identities of the time suffering from the condition. In 1888, it was widely reported in the English, Scottish and Irish press that the Tzar and Tzarina of Russia had been involved in a railway accident, and that both apparently had suffered from railway spine as a consequence. 106 Charles Dickens was also a well-known sufferer of a psychiatric condition caused by his involvement in a
103 The Pall Mall Gazette, ‘Railway Accidents’, 18 July 1868, 12. 104 Ibid. 105 Ibid. 106 See The Pall Mall Gazette, ‘Tittle Tattle for the Tea Table’, 29 November 1888, 7; The Manchester Courier and Lancashire General Advertiser, ‘The Empress of Russia’, 29 November 1888, 7; The Belfast News-Letter, ‘Second Edition’, 29 November 1888, 8; St James’s Gazette, ‘Court and Society’, 29 November 1888, 14; The Nottingham Evening Post, ‘The Empress of Russia’, 29 November 1888, 2; The Yorkshire Post and Leeds Intelligencer, ‘Ireland’, 30 November 1888, 5; The Sheffield Evening Telegraph, ‘Items of Interest’, 30 November 1888, 2; The Birmingham Daily Post, ‘News of the Day’, 30 November, 4; The Western Daily Press, ‘The Empress of Russia’, 30 November 1888, 7; The Evening Telegraph, ‘Empress of Russia Afflicted with “Railway Spine”’, 30 November; The Dundee Evening Telegraph, ‘Empress of Russia Afflicted with Railway Spine’ 30 November 1888, 2; The Dublin Daily express, ‘Illness of the Czarina’, 30 November 1888, 5; The Preston Herald, ‘Empress of Russia’, 1 December 1888, 10; The Jersey Independent and Daily Telegraph, 1 December 1888, 5; The Hampshire Advertiser, ‘The Late Railway Accident to the Czar and Czarina’ 1 December 1888, 2; The Bury and Norwich Post, ‘Sufferers from Railway Spine’ 4 December 1888, 3; The Banbury Advertiser, ‘Desecrating a Grave’, 6 December 1888, 6; The Cornish Telegraph, ‘The Czar and Czarina’, 6 December 1888, 3-4; The Whitstable Times and Herne Bay Herald, ‘Sufferers from Railway Spine, 8 December 1888, 6; The Banbury Beacon, ‘Desecrating a Grave’ 8 December 1888, 6; The Canterbury Journal, Kentish Times and Farmer’s Gazette, ‘Russia Preparing for War’, 8 December 1888, 6.
139 railway accident in 1865 despite not suffering any physical injury.107 Dickens added a postscript to his novel Our Mutual Friend, completed shortly after his accident, referring to this terrifying experience.108
Some newspaper articles regarding particular instances of railway spine were also reported widely in the late nineteenth century despite the sufferer not being a person who was widely known. One instance involved an engine driver from Berlin who averted a seemingly certain collision between the train he was driving and a train on the tracks in front of him which was stopped due to break down. The article, published in The London Evening Standard on 20 November 1889, reports on a piece written by Dr Bruno Schäfer in the Berlin Weekly Clinical Journal and begins:
A Berlin engine-driver, whose vigilance not long since saved a great number of persons from a terrible accident, has become the victim of a ‘railway disease’ which is of rare occurrence, and which German physicians only know under the English name of ‘railway spine.’109
Describing the symptoms suffered by the unfortunate engine driver, the article states:
Though formerly a very powerful man, who had scarcely been ill ten days during his fifteen years of service, and who had always enjoyed the best reputation for steadiness and faithful performance of his duty, [the driver] is at present completely prostrated, incapable of exertion, and quite lost to his calling. He has become very lean, his gait is slouching and toilsome, and his speech slow and stammering. Among other serious consequences affecting the digestion, the memory, the ability to sleep…there is a remarkable diminution of nervous sensibility over the patient’s whole body, so that he scarcely feels as a touch the prick of a needle which brings blood. The legs are benumbed and, as it were, palsied up to the knee.110
Near-identical versions of this article, also entitled ‘Railway Spine’, were published in a number of newspapers in 1889.111 Some newspaper articles from the late nineteenth century
107 For an account of Dickens’ condition, see Catherine Aird, ‘Dickens and Railway Spine Neurosis’ (2012) 108 The Dickensian 25. 108 Catherine Aird, ‘Dickens and Railway Spine Neurosis’ (2012) 108 The Dickensian 25, 28. 109 The London Evening Standard, ‘Railway Spine’, 20 November 1889, 3. 110 Ibid. 111 These included The Cambridge Daily News, 20 November 1889, 3; The State of the East, 20 November 1889, 2; The Nottingham Evening Post, 20 November 1889, 2; The Irish Times, 21
140 also provided some indication to the reader that one may suffer railway spine as a result of experiencing trauma outside of the realm of an actual railway accident. One article published on 26 August 1893 in The Illustrated London News112 discussed the importance of Charcot’s work following the death of the French neurologist earlier in that year.113 This article discussed the important connection made by Charcot between the psychiatric symptoms suffered by soldiers and railway spine.114
By themselves, each of these pieces of evidence provide an insufficient basis upon which to make any general inferences. However, taken together, they provide a basis from which to argue that despite not understanding the scientific complexities involved, the ordinary member of the general public at the time of Coultas may well have been able to appreciate the risk of serious and lasting psychiatric injury as a result of involvement in a train accident despite no external physical injury being suffered. This is significant in relation to Coultas because it may be sufficient to establish that there was no normative justification for the relevance of impact in legal proceedings for compensation at the time.
November 1889, 5-6; The Bradford Daily Telegraph, 21 November 1889, 3; The Leicester Daily Mercury, 21 November 1889, 3; The Dundee Evening Telegraph, 21 November 1889, 2; The Bristol Mercury, 21 November 1889, 7; The Chichester Observer, 27 November 1889, 2; The Sevenoaks Chronicle and Kentish Advertiser, 29 November 1889, 6; The Dover Express, 29 November 1889, 6; The Shepton Mallet Journal, 29 November 1889, 7; The Bevereley and East Riding Recorder, 30 November 1889, 2; The Dorking and Leatherhead Advertiser, 30 November 1889, 2; and The Sheffield Weekly Telegraph, 7 December 1889, 1. 112 The Illustrated London News, ‘Dr Charcot’, 26 August 1893, 244. 113 Charcot died on 16 August 1893. 114 Although, as the article makes clear, Charcot was of the view that these symptoms were due to hysteria: The Illustrated London News, ‘Dr Charcot’, 26 August 1893, 244. There are also other examples of articles in the press connecting railway spine to occurrences unrelated to railway accidents, some of these relating to comparatively trivial events. In one example, a number of articles were published in the 1870s warning parents whose children were cared for by nursemaids of the risk of railway spine as a result of jolting whilst being pushed roughly in their prams: see The Wexford Constitution, ‘Caution to Nursemaids’, 31 July 1872, 4; The Shepton Mallet Journal, ‘Caution to Nursemaids’, 2 August 1872; The Southern Reporter, ‘Carelessness of Nurses’, 5 December 1872. In another example, a number of newspaper articles were published shortly after the turn of the twentieth century which attempted to convey the idea that there was a risk of railway spine as a result of bicycle accidents: see The Evening Telegraph, ‘Bicycles and Nervous Shock’, 11 March 1902; The Evening Star and Daily Herald, ‘From All Quarters’, 12 March 1902, 7. The risk of railway spine as a result of bicycle accidents also became the subject of some ridicule at the time: see The Dublin Evening Telegraph, ‘The Deadly Bicycle’, 12 March 1902, 2.
141
5.3.2 Corrective justice analysis of Coultas
In analysing Coultas two key points should be discussed. First, whilst there was no generally accepted scientific view at the time of the accident that psychiatric injury could be suffered in the absence of impact and physical injury, there was nonetheless some scientific basis upon which to assert this. Second and more importantly, despite the lack of general consensus regarding scientific understandings, the evidence considered above115 makes the case that the ordinary member of the community at the time may well have been able to appreciate the risk of psychiatric injury to the claimant in these circumstances, including there being no impact or observable physical injury to the claimant as a result of the incident at the level crossing. On this basis it can be concluded that a finding at the time that impact was unnecessary – as was found by the Irish Court of Appeal in Byrne v Great Southern & Western Rly Co116 – was consistent with corrective justice. It also cannot be concluded on this basis that a requirement of impact at the time of Coultas was normatively justified. As such, there is no strong corrective justice explanation at the time for the relevance of impact to the question of remoteness, nor for the finding by the Privy Council against the claimant for lack of remoteness on this ground. It can be argued as a result that there is not a good fit between the relevance of impact in the Privy Council’s judgment and the corrective justice explanation of the law of negligence.
In this light, the relevance of impact placed a barrier to liability in front of claimants which was not relevant to the question of whether the defendant was morally responsible for causing the claimant’s harm. As such, the relevance of impact had the potential to have harsh effects on claimants. Not being relevant to the question of whether a normative connection could be made between the defendant’s actions and the claimant’s resulting injury, the relevance of the impact rule was also not morally justifiable. The rule was lacking in principled foundations and therefore arbitrary in nature. Placing an arbitrary barrier to liability in front of the claimant, the rule was also inconsistent with the formal equality of the parties embedded in law.
The relevance of impact to remoteness is also not transparent, as the Privy Council in Coultas did not provide a justification for this relevance by reference to matters which were reflective of corrective justice. The primary reason advanced by the Privy Council in justifying the
115 See section 5.3.1. 116 (1884) 26 LR Ir 428.
142 relevance of impact was that claims for negligently inflicted psychiatric injury should be limited in some way because they had the potential to affect a large number of people. In particular, concerns were expressed by the Privy Council showing that they feared a proliferation of claims – including false claims – and the attendant evidentiary difficulties which may thereby result if Mrs Coultas’ claim was allowed. The Privy Council in Coultas found that to allow Mrs Coultas’ claim would be to extend the law further than it had been previously, and that consequently:
Not only in such a case as the present, but in every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now exists in case of alleged physical injuries of determining whether they were caused by the negligent act would be greatly increased, and a wide field open for imaginary claims.117
The fear of a proliferation of claims is a policy consideration which is external to the relationship of risk between the parties.118 These concerns119 are unprincipled as they are unrelated to the question of whether the risk of injury to the claimant as a result of the defendant’s actions would have been appreciable to an ordinary member of the community.120
117 Victorian Railways Commissioners v Coultas (1888) App Cas 222, 226. Mendelson argues that the Privy Council’s decision was essentially a ‘political decision on jurisprudential grounds.’ This was on the basis that the Privy Council was likely responding to the perceived crisis in injury compensation in the mid nineteenth century as a result of railway companies having to pay out large sums of compensation to those injured on the railways. Because of this approach, Mendelson argues that the evidentiary issue of whether harm had been suffered was turned into a substantive issue of law: Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 63. 118 See the discussion of internal and external policy considerations in relation to Sharon Erbacher’s treatment of corrective justice above at section 4.2.2. 119 Fears of an opening of the floodgates of litigation, according to Butler, include a few interrelated concerns. These are concerns of the practical implications of what will happen to the administration of justice, as well as fears that society will not be able to function properly, if too many cases come before the courts: see Des Butler, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury Resulting from Negligence’ (2002) 10 Torts Law Journal 1, 16. 120 Such fears have been often regarded as being without foundation – see, eg, Hambrook v Stokes Brothers [1924] All ER Rep 110, 116-7 (Lord Atkin); McLoughlin v O’Brian [1983] AC 410, 421 (Lord Wilberforce), 425 (Lord Edmund-Davies); J G Fleming, The Law of Torts (Law Book Co, 9th ed, 1998) 137; van Soest v Residual Health Management Unit [2000] 1 NZLR 179, 203 (Thomas J). However, Butler argues that they should not be dismissed out of hand. Butler also suggests that fears of an opening of the floodgates should be calmed by the fact that few potential claimants will be able to establish that they have suffered the requisite degree of
143
Accordingly, this concern is unrelated to the question of whether the defendant was morally responsible for causing the claimant’s harm. Such fears are also arguably inconsistent with the requirement of correlativity as they focus only on the effect of the law on potential defendants. As they do not apply equally between the parties, they give preferential treatment to the interests of potential defendants in their freedom of action at the expense of the interests of potential claimants.
The basis on which the duty of care issue was considered in Coultas was also not principled. The categorical approach to the determination of the duty of care is inconsistent with the Donoghue v Stevenson121 test of reasonable foreseeability and there is accordingly no fit with these theories in this respect either. The finding of an automatic duty of care based on pre- existing categories – such as the category of users of level crossings – is inconsistent with the pre-existing normative equality between the parties embedded in law. The categorical approach is potentially over and under-inclusive, because it takes a factor which is potentially (although not in every case) external to the parties – that is the fact of where they happen to interact – and makes this fact determinative of the issue of duty. This is despite this fact potentially having no relevance, in the normative sense, to the relationship of risk between the parties.
In accordance with the approach advanced in Part II the question whether the defendant has morally wronged the claimant in causing the claimant’s injury is determined by considering whether the defendant was able to appreciate the risk of injury to the claimant by his or her actions prior to acting. Where this can be established, it can be concluded that the requisite normative connection can be made between the defendant’s actions and the claimant and the claimant’s injury. Considerations relevant to this overall question can be considered matters of principle and relevant to the relationship of risk between the parties whereas matters not relevant are considered external to this relationship.122 From this perspective, if the parties happen to interact at a level crossing, this may be relevant to the question of whether the defendant was able to appreciate the risk of injury to the claimant, though this need not always be the case.
injury: see Des Butler, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury Resulting from Negligence’ (2002) 10 Torts Law Journal 1, 16-7. 121 [1932] AC 562, 580. 122 See chapters 2 and 4.
144
Coultas itself demonstrates this well. As a result of this rule, the mere fact of where the parties interacted was used to justify a finding of a duty of care, with no attention paid to the relationship of risk between the parties. The court then focused only on whether the harm suffered by the claimant was too remote a consequence of the defendant’s servant’s negligence. This approach is over-inclusive from the perspective of corrective justice, because it will not in every situation be the case that psychiatric harm in the relevant sense was reasonably foreseeable at a community understandings level. The meeting of the parties at the level crossing may in the great majority of cases be clearly linked to the relationship of risk between the parties – railway crossings are often dangerous, with trains, buggies, cars and other vehicles having the potential to cross paths. However, this does not mean that the meeting of the parties at the level crossing will always be relevant to the relationship of risk between them. No doubt a duty was owed from the perspective of corrective justice not to cause physical injury, but this was because it ought to have been commonly appreciable at the time that physical injury could be caused by trains, not because the parties necessarily met at a level crossing. In finding a duty on the basis simply of the fact that the parties met at a level crossing, the categorical approach had the potential to result in the finding of a duty in circumstances where such a finding was not justified in terms of the interpersonal morality between the parties.
The categorical approach to the duty of care also has the potential to be under-inclusive. This is because this approach, which precludes a finding of a duty of care outside of the established categories, operates to deny a finding of a duty of care even in circumstances where the risk of psychiatric injury might have been appreciable at a community understandings level. In this manner, the categorical approach had the effect of both permitting a finding of a duty of care in claims which are not meritorious, and of denying a duty in claims which are. For this reason, the categorical approach also is not morally justifiable. As it is not based on principled foundations, it has the potential to both arbitrarily allow, and arbitrarily limit, claims.
The Notting Hill ‘natural and reasonable result’ test of remoteness applied by the Privy Council was also not explicable as part of a coherent system of corrective justice. This test arguably contained insufficient guidance for the court, leaving the judges to rely upon intuition to decide whether it was satisfied. Legal tests incorporating requirements such as damages having to be the ‘proximate’, ‘natural’, ‘probable’, ‘ordinary’ or ‘reasonable’ result of the defendant’s act, provide insufficient guidance to courts. Competent users of such legal tests can reasonably disagree about what considerations underpin these words, and so are left to apply whatever
145 interpretation intuitively seems correct, with the only guidance perhaps being provided being previous examples of the application of such tests. Rules based on such notions, having no clear principled foundation, are inconsistent with a coherent system of law based on corrective justice. Consequently, there is little if anything about the Privy Council’s decision in Coultas which is consistent with corrective justice.
5.4 Dulieu v White & Sons (1900)123
By comparison with Coultas, there are a number of aspects of the cases which followed which are principled. The first of these is the expansion of the ambit of liability in Dulieu. In this case the claimant suffered psychiatric injury after another accident not involving impact. This was caused by the defendant’s servant negligently driving a van through the front wall of the claimant’s husband’s public house. The van did not actually collide with the claimant, although she suffered psychiatric injury as a result of the fright of fearing she would be struck and killed.124 This case tested the finding in Coultas that impact was a necessary element in order to establish liability. At the time of Dulieu, the law of negligence was still in a state of uncertainty. In 1883, Brett MR advanced the idea of a larger, more general principle of negligence in the case of Heaven v Pender,125 and he further advanced this in 1893 in the case of Le Lievre v Gould.126 However, this general view was not to take root in the law of negligence for another four decades.127
The relatively recent scientific consensus that psychiatric disorders could be caused by traumatic events not involving any physical harm was recognised by the court in Dulieu, with the King's Bench Division finding that physical impact was not a necessary ingredient in a cause of action in negligence.128 Kennedy J considered the requirement of physical impact as ‘unreasonable’, stating that he would be sorry to adopt a rule which would deny otherwise
123 [1900] All ER Rep 353 (‘Dulieu’). 124 The claimant was pregnant at the time of the accident and the shock she sustained caused her to become physically ill. 125 Originally put forward in Heaven v Pender (1883) 11 QBD 503 (CA). 126 [1893] 1 QB 491 (CA). In this case, Brett MR (who had by the time of Le Lievre become Lord Esher), proposed a general principle of negligence which was later to be further developed by Lord Atkin in Donoghue v Stevenson [1932] AC 562, 580. 127 In the case of Donoghue v Stevenson [1932] AC 562, 580. For further discussion of this point, see Harold Luntz, David Hambly, Kylie Burns, Joachim Dietrich, and Neil Foster, Torts: Cases and Commentary (LexisNexis Butterworths, 6th ed, 2009) 100-2. 128 Dulieu v White & Sons [1900] All ER Rep 353, 356 (Kennedy J), 361 (Phillimore J).
146 meritorious claims which should in principle succeed, simply in order to quell unrighteous or groundless actions.129 His Honour stated: ‘such a course involves the risk of denial of justice to meritorious claims, and it necessarily implies a certain degree of distrust, which I do not share, in the capacity of legal tribunals to get at the truth in this class of case.’130 However, having extended the ambit of liability by abandoning the requirement for impact, Kennedy J placed a limitation on this proposition, finding that the shock suffered by the claimant must have arisen from the fear of immediate injury to oneself in order to give rise to a cause of action.131 The extension of liability to allow recovery for psychiatric injury suffered due to negligence as a result of fear of injury or death to a third party was a step too far for the Court.132 Whilst the relaxation of the impact rule preferenced legal merit over certainty, His Honour’s limitation on liability did not.
The abandonment of the relevance of impact is understandable on the basis that by the time of this case, there was general scientific consensus that psychiatric injury of organic origin could be caused by exposure to trauma in the absence of external physical injury or impact. However as argued above in relation to Coultas, common understandings by the time of that case likely regarded impact as unnecessary in relation to psychiatric disorders. As such, it will be argued below that the finding in this case is explicable in terms of corrective justice, being morally justifiable and presenting the law in a light which is principled and non-contradictory. It will also be argued that there is transparency between the approach advanced in Part II of this thesis and the decision in Dulieu, with the internal explanation of the rule provided by the court reflecting this perspective.
In terms of the relevant legal authorities, the court in Dulieu might have drawn upon Coultas. However, despite being a decision which ought to be accorded great respect, courts in England and Ireland refused to follow Coultas, considering it to be underpinned by dated science.133 Indeed, the decision in Coultas received a large amount of criticism at the time.134 Two Irish
129 Ibid 360. 130 Ibid. 131 Ibid 357. 132 Ibid. 133 See Bell v Great Northern Railway Company of Ireland (1890) 26 LR Ir 428. Also see Dulieu v White & Sons [1900] All ER 353 itself. 134 See, eg, T Bevan, Negligence in Law (Stevens and Haynes, 2nd ed, 1895) 67; Parson’s Liability of Railway Companies 20-3; Sir Frederick Pollock, A Treatise on the Law of Torts (The FH
147 decisions chose a different approach to Coultas, which ultimately proved to be very influential in the United Kingdom and in Australia. Barely two years after Coultas, the Irish Court of Appeal in Bell v Great Northern and Western Railway Co135 refused to follow Coultas, instead choosing to follow its own decision from 1884 in Byrne v Great Southern & Western Rly Co.136 Byrne was not reported, but was relied upon by the court in Bell. Palles CB in Bell criticised the Privy Council’s decision in Coultas on the basis that it did not distinguish between fright causing no physical harm and fright which did.137 Palles CB crucially recognised that fright could cause physical injury, and where this could be proved, he concluded that an action may be sustained.138
Courts in England also declined to follow Coultas. In Pugh v London Brighton & South East Coast Rly Co,139 Lord Esher MR140 awarded compensation to a claimant who suffered psychiatric injury in the course of his employment despite there being no physical impact to connect his injury to the defendant’s negligence.141 The courts in England also declined to
Thomas Law Book Co, 3rd ed, 1894) 54-7. Also see Des Butler, Damages for Psychiatric Injuries (Federation Press, 2004) 37, fn 21. 135 (1890) 26 LR Ir 428 (‘Bell’). 136 (1884) 26 LR Ir 428 (‘Byrne’). 137 Palles CB stated that the Coultas decision assumed, ‘as a matter of law, that nervous shock is something which affects merely the mental functions, and is not itself a peculiar state of the body’. Palles CB regarded this to be an error which ‘pervades the entire judgement’ in Coultas: at 441. Also see Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 72. 138 Bell v The Great Northern and Western Railway Co (1896) 26 LR Ir 428, 442. Also see Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 72; Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 43-4. Notably, Palles CB stated:
I am of the opinion that, as the relation between fright and injury to the nerve and brain structures of the body is a matter which depends entirely upon scientific and medical testimony, it is impossible for any Court to lay down, as a matter of law, that if negligence causes fright, and such fright, in its turn, so affects such structures as to cause injury to health, such injury cannot be ‘a consequence which, in the ordinary course of things would flow from the negligence’, unless such injury accompany such negligence in point of time: Bell v The Great Northern and Western Railway Co (1896) 26 LR Ir 428, 442.
139 [1896] 2 QB 248. 140 With Kay and Smith LLJ in agreement. See Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 81. 141 Pugh v London Brighton & South East Coast Rly Co [1896] 2 QB 248, 249.
148 follow Coultas in relation to cases concerning the intentional infliction of mental harm, beginning with the English case of Wilkinson v Downton.142 The court in Wilkinson awarded the claimant damages for psychiatric injury in circumstances where there was no physical impact between the parties, distinguished the cause of action operating in that case from cases of negligently inflicted psychiatric injury on the basis that the infliction of fright by the defendant was intentional.143
Whilst the relevance of impact did not take root in England and Ireland, Coultas was mistakenly cited in a number of cases as authority for an impact requirement in a few reported cases in Canada,144 and in a number of cases in the United States of America where it was very influential.145 In Mitchell v Rochester Railway Co,146 the claimant suffered fright leading to psychiatric injury in circumstances involving no physical impact. The Court of Appeal in New York purported to follow the decision in Coultas, denying liability due to floodgates fears.147 Mitchell was followed by a number of courts in other jurisdictions in the United States.148
142 [1897] 2 QB 57 (‘Wilkinson’). 143 Ibid. That is, the court in Wilkinson used the fact that the defendant caused the claimant’s injury intentionally as a reason to distinguish Coultas and find for the claimant despite her not having suffered a physical injury by impact. 144 See Henderson v Canada Atlantic Railway Company (1899) 29 SCR 632; Geiger v Grand Trunk RW Co (1905) 10 OLR 511; Miner v CPR (1911) 3 Alta LR 408. Also see Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) (PhD thesis, Queensland University of Technology, 1996) 39. 145 See, eg, Lehman v Brooklyn City Rail Co (1888) 47 Hun NY 355; Ewing v Pittsburgh CC & St L Rail Co 23 A 340 (Pa 1892); Mitchell v Rochester Railway Co (1893) 25 NY Sup (Cir Ct) 744; Spade v Lynn & B Rail Co 47 NE 88 (Mass 1897); Braun v Craven 51 NE 657 (Ill 1898); Cleveland CC & St L Rail Co c Stewart 56 NE 917 (Ind 1899); Ward v West Jersey & St Rail Co 47 A 561 (NJ 1900). See Des Butler, ‘Managing Liability for Bystander Psychiatric Injury in a Post-Hill v Van Erp Environment’ (1997) 13 Queensland University of Technology Law Journal 152, 160-70; Peter Handford, Mullany & Handford’s Toprt Liability for Psychiatric Damage (Thompson, 2nd ed, 2006) 20-1. 146 (1893) 25 NY Sup (Cir Ct) 744. 147 Mitchell v Rochester Railway Co (1893) 25 NY Sup (Cir Ct) 744. Also see Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 66-7. 148 See Spade v Lynn & Boston RR (1897) 168 Mass 285, 288; Braun v Craven (1898) 51 NE 657, 662 (Ill); Cleveland CC & St L Ry Co v. Stewart (1900) 56 N.E. 917, 922 (Ind Ct App); Alabama Fuel & Iron Co v Baladoni (1916) 73 So 205, 207 (Ala Ct App); Cleveland CC & St Louis Rly v Stewart (1900) 24 Ind App 374; Ward v West Jersey & Seashore Railroad Co (1900) 65 NJL 383: Jeffrey Hoskins, ‘Negligent Infliction of Emotional Distress: Recovery is Foreseeable’ (2006) The John Marshall Law Review 1019, 1022-3; Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 67-8, fn 269.
149
Indeed, the impact rule found root in the United States of America, although it has ultimately fallen out of favour in most jurisdictions149 as its logical flaws became evident.150
Amongst all these legal authorities, there was again technically no binding authority to assist the court to decide the case as a matter of deductive logic. Of the cases suggesting that impact would be relevant to liability, Coultas was a decision of the Judicial Committee of the Privy Council which was only persuasive on courts in the United Kingdom, being binding only on courts in the colonial jurisdiction from which the appeal came (in this case Australia). The American authorities were similarly only persuasive. Of the cases suggesting liability ought to be extended to include claimants in Mrs Dulieu’s situation, the Irish authorities were not binding. Although Pugh was an English case, it was only persuasive as it did not involve principles of negligence. Similarly, Wilkinson did not strictly involve principles of negligence, and so was not binding. Considering there was no clear guidance provided to the court in Dulieu, it is significant that the court took a view of the law which was consistent with the corrective justice approach advanced in this thesis.
149 Physical impact is still required in Florida (Willis v Gami Golden Glades LLC (2007) 967 So. 2d 846 (Fla), Georgia (Strickland v Hodges (1975) 216 S.E.2d 706 (Ga Ct App); Chambley v Apple Rest Inc (1998) 504 SE 2d 551, 552 (Ga Ct App)), Nevada (Olivero v Lowe (2000) 995 P 2d 1023, 1026 (Nev)), Indiana (Atlantic Coast Airlines v Cook (2006) 857 NE2d 989 (Ind); Conder v Wood (1999) 716 NE 2d 432, 435 (Ind)); and Kansas (Hoard v Shawnee Mission Med Ctr (1983) 662 P 2d 1214, 1219-20 (Kan); Tucker v United Parcel Serv Inc (2007) CIV A 06- 1204-MLB (D Kan)): Stephan Krejci, ‘Is General Negligence the New Exception to the Florida Impact Rule? (2015) 10(2) Florida A&M University Law Review 267, 267-8, 283-93; Betsy Grey, ‘Neuroscience and Emotional Harm in Tort Law: Rethinking the American Approach to Free-Standing Emotional Distress Claims’, in Current Legal Issues (Oxford University Press, 2011) 6; Colin E Flora, ‘Special Relationship Bystander Test: A Rational Alternative to the Closely Related Requirement of Negligent Infliction of Emotional Distress for Bystanders’ (2011-2012) 39 Rutgers Law Record 28, 29. 150 There are many instances of American courts considering the impact rule to apply, but finding that the slightest of contact – not relevant in terms of psychiatric injury – was sufficient to satisfy the rule. Examples of dubious situations in which the rule was held to be satisfied include a horse excreting onto the claimant’s lap (Christy Bros Circus v Turnage 38 Ga App 581, 144 SE 680 (1928)), the claimant getting dust in his eye (Porter v Delawere Lackawanna Western Railroad Co 73 NJL 405, 63 A 860 (906)), the claimant inhaling smoke (Morton v Stack 122 Ohio St 115, 170 NE 869 (1930)), the claimant twisting their shoulder (Freedman v Eastern Massachussetts Street Railway Co 299 Mas 246, 12 NE 2d 739 (1938)), and the claimant being exposed to x-rays (Deutsch v Schein 597 SW 2d 141 (1980)). For further discussion of this point, see Des Butler, ‘Managing Liability for Bystander Psychiatric injury in a Post-Hill v Van Erp Environment’ (1997) 13 Queensland University of Technology Law Journal 152, 159-60.
150
5.4.1 Prevailing understandings of the causes of psychiatric disorders
In order to make this argument, we must again begin by considering prevailing understandings of the causes of mental disorders in order to make the case that the risk of psychiatric injury to Mrs Dulieu was appreciable to an ordinary member of the general community at the time of the accident. As with Coultas, the type of traumatic experience suffered by Mrs Dulieu has been associated in modern medical understandings with the onset of PTSD and a number of other anxiety disorders.151 Furthermore, as has been outlined above,152 there are grounds to argue that the ordinary member of the public from the mid-nineteenth century until the turn of the twentieth century may well have been able to appreciate the risk of psychiatric disorder as a result of the trauma of nearly being struck and killed by a train. Despite the legitimacy of railway spine being called into question at around this time – the work of Page and of Charcot in particular was starting to demonstrate that it was the effect of trauma on the mind rather than on the spinal tissues which was the root cause of the symptoms suffered – it has been argued that the condition was part of the wider culture by this time as a result of the rapid industrialisation which had occurred in the nineteenth century, and because of the prominence of railway spine in accident and injury compensation cases.153
There are two further matters which should be commented upon when considering common understandings at the time of Dulieu which differed from prevailing understandings at the time of Coultas. The first relates to the fact that Mrs Dulieu’s accident involved an accident relating to a horse-drawn buggy, rather than a train. It might be thought that horse-drawn vehicles were much less dangerous than railways, however, this assumption does not appear to reflect the experiences of ordinary members of the community in Britain at around the turn of the century. Accidents involving horse-drawn vehicles were common at this time, often causing death or
151 Exposure to the extreme stress of narrowly avoiding being crushed by large vehicle is outside the normal range of human experiences, and of a character which has been associated with the onset of PTSD: see Mardi J Horowitz, ‘Stress-Response Syndromes: A Review of Posttraumatic Stress and Adjustment Disorders’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 54; Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 240, citing JL Herman, Trauma and Recovery (Pandora, 1992) 15-6. 152 See the discussion above at section 5.3.1. 153 Eric Michael Caplan, ‘Trains, Brains, and Sprains: Railway Spine and the Origins of Psychoneuroses’ (1995) 69 Bulletin of the History of Medicine 387, 405.
151 serious injury. Commenting on the dangers associated with horses, the Registrar General in 1865 stated ‘street accidents by horse carriages kill more people in a year than railways’.154 Walford has provided an idea of how dangerous horses in Britain were in the late-nineteenth century, reporting that there were 1,300 fatalities in 1874 resulting from accidents involving horse-drawn vehicles.155 Commenting on the risk of death and serious injury posed by horses to humans because of the considerable size and power of these animals, one scholar has described horses as ‘one of man’s most dangerous tools’.156
Numerous examples can be found of newspaper stories telling of accidents involving horses in the mid-to-late-nineteenth century in Britain. Such accidents were not infrequently the result of horses becoming frightened by something and getting out of the control of their owners, and were also not uncommonly fatal or the cause of injury.157 As such, there is some reason to argue
154 C Walford, ‘On the Number of Deaths From Accidents, Negligence, Violence and Misadventure in the United Kingdom and Some Other Countries’ (1881) 44 Journal of the Statistical Society 444, 463, 465: cited in PEH Hair, ‘Deaths from Violence in Britain: A Tentative Secular Survey (1971) 25(1) Population Studies 5, 8. 155 Ibid. 156 PEH Hair, ‘Deaths from Violence in Britain: A Tentative Secular Survey (1971) 25(1) Population Studies 5, 7. 157 See, eg, Caledonian Mercury, Edinburgh, ‘Leith – Fatal Accident’, 5 May 1853 (young boy killed after being struck by train of trucks drawn by two horses); The Kendal Mercury, ‘Melancholy and Fatal Accident From a Runaway Horse’, 19 April 1856, 5 (report on an inquest regarding the death of a woman after being thrown off a cart being pulled by a runaway horse); Wrexham and Denbighshire Weekly Advertiser, Melancholy and Fatal Carriage Accident Near Barnsley’, 18 September 1858 (woman killed after being thrown off a horse drawn cart); Maidstone Telegraph, Rochester and Chatham Gazette, ‘A Fatal Accident – A Child Killed’, 20 August 1859 (toddler killed after being struck by a horse-drawn cart); Yorkshire Gazette, ‘Melancholy and Fatal Accident’, 3 September 1859, 3 (man killed after being thrown off a horse); The Morning Post, Fatal Accident’, 9 June 1870, 6 (man killed when runaway horse- drawn buggy collided with a lamp post); The East and South Devon Advertiser, ‘Fatal Accident to a Pleasure Party’, 15 April 1882 (man and woman killed after being thrown off overtuning horse-drawn cart); The Bath Chronicle, ‘Runaway Horse’, 30 November 1882, 8 (man injured as a result of being struck by a runaway horse); The Bath Chronicle, ‘Run Over at Bristol’, 30 November 1882, 8 (runaway horse and cart struck a man causing him injury); The Western Daily Press Bristol, ‘Fatal Accident at Portishead’, 2 October 1884, 3 (man killed after falling under the wheels of the horse drawn wagon he was driving); The Bath Chronicle, ‘Midsomer Norton – Fatal Accident’, 22 April 1886, 2 (young boy struck and killed by runaway horse and cart); The Nottingham Evening Post, ‘Fatal Street Accident at Derby’, 6 September 1888, 4 (young boy struck and killed by hansom cab); The Dundee Courier, ‘Fatal Result of an Accident’, 22 February 1892 (man killed after being knocked down by a horse on a farm); The Cambridge Independent Press, ‘The Fatal Accident at Chesterton’, 6 October 1899, 6 (report of inquiry of death of a man after being struck by a horse-drawn cart); The Scotsman, ‘Fatal Accident at Falkirk’, 25 May 1901, 12 (man killed after being run over by the horse-drawn van he was driving); Essex County Chronicle, ‘Sad Fatal Accident at Halstead. Horses Frightened by a Train’, 10 January 1902, 3 (man killed after being thrown off the horse-drawn wagon he was driving).
152 that the ordinary member of the public familiar with the news of the day may well have been aware of the significant risk of death or serious physical injury as a result of an accident involving a horse.
The second matter to consider when attempting to gauge prevailing understandings relates to developments in scientific understandings between Coultas and Dulieu. As outlined above,158 at the time of Mrs Coultas’ accident there was little general consensus between experts as to the true nature and origins of nervous disorders, particularly as to whether organic changes in the mind could be caused by non-physical phenomena in the absence of hereditary weakness or psychological processes. However, this changed in the 1890s. Despite there a lack of general consensus about the precise mechanisms involved, a number prominent physicians in the final decade of the nineteenth century began to accept that significant and lasting physiological and psychiatric disorders could be caused by accidents in which the victim was not exposed to any physical trauma.159
In 1889, Janet argued that some extreme forms of trauma caused hyper-arousal of the information processing systems of the mind. By interfering with the mind’s ability to cope with visual and auditory stimuli and overwhelming the ordinary coping mechanisms, Janet asserted that some traumatic experiences could cause biological changes in the mind.160 Also in 1889, Charcot argued that trauma was capable of causing hysteria in males as well as females, a neurophysiological condition which caused lesions in the nervous centres, in particular, in the cerebral hemispheres of the brain.161 Another who in the last part of the nineteenth century was of the view that trauma could induce physical changes was Oppenheim, who in 1889 argued that the trauma affected the nervous system at a molecular level.162 The claim that trauma
158 See section 5.3.1. 159 See Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 91-2. 160 P Janet, L’Automatisme Psychologique: Essai de Psychologie Expérimentale sur les Formes Intférieures de L’Activité Humaine (Félix Alcan, 1889): cited in Bessel A van der Kolk and Jose Saporta, ‘Biological Response to Psychic Trauma’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 25. 161 J M Charcot, Clinical Lectures on Diseases of the Nervous System: Vol II (New Sydenham Society, 1889): cited in Michael R Trimble, Post-Traumatic Neurosis: From Railway Spine to the Whiplash (John Wiley & Sons, 1981) 44-5. 162 H Oppenheim, Die Traumatische Neurosen (Hirschwald, 1889): cited in Bessel A van der Kolk, Lars Weisaeth and Onno van der Hart, ‘History of Trauma in Psychiatry’, in Bessel A van der Kolk and Alexander C McFarlane (eds), Traumatic Stress: The Effects of Overwhelming Experience of Mind, Body, and Society (Guilford Publications, 2007) 48.
153 caused psychiatric harm only to those who were predisposed to such harm as a result of hereditary weakness was also rejected by Freud and Bruer in the mid-1890s.163 Instead, much impressed by the work of Charcot, Freud and Bruer argued that trauma caused neurotic symptoms through unconscious psychological processes.164 At the 12th International Medical Congress in Wiesenbaden in 1893, there was general consensus amongst the participants that psychiatric conditions caused by non-physical phenomena were genuine medical conditions, notwithstanding that they were not purely physical in character.165
These were crucial developments in scientific understandings of the relationship between exposure to trauma and psychiatric disorders. From this point onwards, notwithstanding the continuing fears of malingering in some claiming to suffer from psychiatric symptoms as a result of exposure to trauma, it was generally recognised by those expert on the subject that whatever the precise mechanisms involved, exposure to trauma in the absence of external physical injury could result in serious and lasting psychiatric injury. As such, an expert in 1900 who was up to date with the latest advancements in scientific knowledge on the effects of trauma on the mind would therefore likely have been able to appreciate the risk of psychiatric injury to Mrs Dulieu in the circumstances of her case. Moreover, the claim by an expert at the time agreeing that there was a risk of psychiatric disorder to Mrs Dulieu in the absence of physical impact was not particularly scientifically controversial.
5.4.2 Corrective justice analysis of Dulieu
As argued above in relation to Coultas, the likely view of the ordinary member of the public at the time was that psychiatric disorders could be caused by exposure to trauma not involving physical impact.166 The abandonment of impact as a relevant aspect of liability in Dulieu was
163 See Mardi J Horowitz, ‘Stress-Response Syndromes: A Review of Posttraumatic Stress and Adjustment Disorders’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 49. 164 S Freud and J Bruer, Studies in Hysteria (trans. J Strachey) (Hoharth Press, 1895): cited in Michael R Trimble, Post-Traumatic Neurosis: From Railway Spine to the Whiplash (John Wiley & Sons, 1981) 48; Mardi J Horowitz, ‘Stress-Response Syndromes: A Review of Posttraumatic Stress and Adjustment Disorders’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 49. 165 See Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 91-2. This is discussed above at section 5.3.1. 166 See the discussion at section 5.3.1.
154 therefore normatively justified. If it is accepted that an ordinary member of the community could have appreciated the risk of psychiatric injury to Mrs Dulieu in the circumstances, this would support the argument that Mrs Dulieu possessed a right to physical and psychological integrity at the time placing the defendants under a correlative duty of care.167 This is an important point as it provides a good explanation as to why it was appropriate to find the defendant morally and legally responsible for causing the claimant’s harm in Dulieu. If this is accepted, it can be argued that there was a good fit between the finding of the court in this respect and the corrective justice approach advanced in Part II.
Such a finding would also in the circumstances be principled and morally justifiable. If the risk of psychiatric injury to Mrs Dulieu was appreciable at a community understandings level at the time of her accident, there was no reason in principle for the court to treat Mrs Dulieu’s injury any differently at law from a physical injury which was well-understood by the general community to be causally related to a particular action or event.168 In this light, the rejection of the impact rule removed an arbitrary limit on liability which ensured the parties were treated as equals. The defendant in this case was morally responsible for causing Mrs Dulieu’s harm this then justifying the intervention of the law to undo that wrong. Mrs Dulieu’s claim is a good example of the sort of meritorious claim which would have been unjust to deny at this time.169 On this basis, there was good fit between the approach advanced in Part II and the finding by the court in Dulieu that impact was not required.
The rejection of the impact rule was also transparent in Dulieu, being motivated by factors relevant to the approach advanced in Part II. Kennedy and Phillimore JJ were both concerned with whether the risk of psychiatric injury to Mrs Dulieu was appreciable at a common
167 The existence and extent of the right to physical and psychological integrity is discussed above in chapter 4, particularly at sections 4.3 and 4.4. 168 See the discussion of the importance of this conclusion from a normative perspective in section 4.3.2. 169 Some of the American cases are also good examples of the potential over-inclusiveness of the relevance of impact, where impact irrelevant to the merits of the claim was found to be relevant: see, eg, Christy Bros Circus v Turnage 38 Ga App 581, 144 SE 680 (1928) (horse excreted onto the claimant’s lap), Porter v Delawere Lackawanna Western Railroad Co 73 NJL 405, 63 A 860 (906) (the claimant got dust in his eye), Morton v Stack 122 Ohio St 115, 170 NE 869 (1930) (the claimant inhaled smoke), Freedman v Eastern Massachusetts Street Railway Co 299 Mas 246, 12 NE 2d 739 (1938) (the claimant twisted their shoulder), Deutsch v Schein 597 SW 2d 141 (1980) (the claimant was exposed to x-rays). See Des Butler, ‘Managing Liability for Bystander Psychiatric injury in a Post-Hill v Van Erp Environment’ (1997) 13 Queensland University of Technology Law Journal 152, 159-60.
155 understandings level and therefore with whether the defendant was morally responsible for causing Mrs Dulieu’s harm. Both regarded the lack of impact as not being a sufficient reason to deny Mrs Dulieu’s claim. Kennedy J rejected the defendant’s argument that fright could not ground a cause of action,170 stating:
That fright – where physical injury is directly produced by it – cannot be a ground of action merely because of the absence of any accompanying ‘impact’ appears to me to be a contention both unreasonable and contrary to the weight of authority.171
Noting that whilst it was true that damages were an essential part of a cause of action, his Honour stated that it could not be assumed to be scientifically true that nervous shock causing bodily illness was not actually accompanied by physical injury.172 He further stated that where nervous shock caused physical injury and a jury was satisfied upon medical evidence that the physical injury followed the nervous shock as its direct and natural consequence, the separation in time of nervous shock and physical injury should not bar an action for damages.173 His Honour stated:
if ‘impact’ be not necessary, and if, as must be assumed here, the fear is proved to have naturally and directly produced the physical effects, so that the ill results of the negligence which caused the fear are as measurable in damages as the same results would be if they arose from an actual
170 The defendant relied on a number of authorities in making this argument, including Mitchell v Rochester Railroad Co (1896) 151 NY 107. 171 Dulieu v White & Sons [1900] All ER Rep 353, 356. His Honour considered important a number of authorities in which impact was found not to be necessary, including Jones v Boyce (1816) 1 Stark 493, Harris v Mobbs (1878) 3 Ex D 268 and Wilkins v Day (1883) 12 QBD 110, as well as the Irish cases of Byrne v Great Southern and Western Rail Co of Ireland (1884) 26 LRI 428 and Bell v Great Northern Rail Co of Ireland (1896) 26 LR Ir 428. Whilst acknowledging that the judgment of the Privy Council in Coultas ought to be given great respect, Kennedy J noted that this decision was not technically binding on the court. He further stated that he declined to follow Coultas on the basis that it had been doubted by Lord Esher in Pugh and had been disapproved by Palles CB in Bell. His Honour further found it convincing that Coultas had been treated unfavourably by well-respected academic authors such as Sedgwick (Damages (8th ed) 811), Pollock (Law of Torts (6th ed) 50-2), and Bevan (Law of Negligence (2nd ed) 76- 83). 172 Dulieu v White & Sons [1900] All ER Rep 353, 358. 173 Ibid. Kennedy J provided the analogy of death caused by poisoning first provided by Palles CB in Bell v Great Northern Rail Co of Ireland (1896) 26 LR Ir 428 to support this proposition, who stated: ‘As well might it be said that a death caused by poison is not to be attributed to the person who administered it, because the mortal effect is not produced contemporaneously with its administration’: ibid.
156
impact, why should not an action for those damages lie just as well as it lies where there has been actual impact?174
The different means by which injury was caused was insignificant as far as Kennedy J was concerned. His Honour was of the view that where there were measurable damages caused by negligence, it was not justifiable to regard cases of injury by fright as being different in any meaningful way from cases of injury caused by impact. His Honour was concerned that the law should treat like cases alike, with both cases being equally deserving regardless of the mechanism by which injury was caused. Cases of psychiatric injury in the absence of impact were equally meritorious as cases of injury involving impact where the risk of the particular injury was appreciable.
Kennedy J’s judgment regarding the American authority of Spade v Lynn and Boston Railroad Co175 further demonstrates his concern to develop the law along principled lines. The defendants referred to Spade in argument in order to support their contention that mere fright could not sustain an action for damages.176 His Honour rejected this argument, making some revealing comments in the process. Kennedy J noted that Allen J’s judgment in Spade rested on the grounds of public policy, first being that if people were bound to guard against anything but the probable consequences to ordinary people, it would cause hardship, and secondly, that allowing such claims would open up the door for unjust claims which could not be met.177 In rejecting these contentions, His Honour noted that Allen J in Spade recognised that fright could be causally related to physical injury. Indeed, Allen J in Spade stated:
It would seem, therefore, that the real reason for refusing damages sustained from mere fright must be something different, and it probably rests on the ground that in practice it is impossible satisfactorily to administer any other rule.178
Kennedy J rejected this approach, stating that he would be sorry to adopt a rule which would deny otherwise meritorious claims which should in principle succeed, simply in order to quell
174 Dulieu v White & Sons [1900] All ER Rep 353, 357. 175 (1897) 60 Am St Rep 393 (‘Spade’). 176 Dulieu v White & Sons [1900] All ER Rep 353, 359. 177 Ibid 360: referring to Spade v Lynn and Boston Railroad Co (1897) 60 Am St Rep 393, 395 (Allen J). 178 Spade v Lynn and Boston Railroad Co (1897) 60 Am St Rep 393, 395: cited in Dulieu v White & Sons [1900] All ER Rep 353, 360.
157 unrighteous or groundless actions. For Kennedy J, this approach involved ‘the risk of denial of justice to meritorious claims, and it necessarily implies a certain degree of distrust, which I do not share, in the capacity of legal tribunals to get at the truth in this class of case.’179
Phillimore J’s decision that the lack of impact was not a sufficient reason to deny Mrs Dulieu’s claim was also motivated by factors relevant to the normative connection between the parties, notwithstanding that he came to his decision by a slightly different route. Phillimore J considered that there could be cases in which a duty was owed not to inflict a mental shock on another, and that if such a mental shock was inflicted on another which thereby caused physical damage, an action for physical damage could be sustained notwithstanding the fact that the mind was the vehicle through which the damage was inflicted.180 His Honour stated:
it may well be, as the Exchequer Division in Ireland held in Bell v Great Northern Rail Co of Ireland…, that a railway company has a duty to its passengers to use its best endeavours to convey them, not merely safely, but securely in the etymological sense of the word; and that, when it fails and physical damage accrues to a passenger through the fright which its failure occasions, the passenger may have an action.181
As such, the reasons provided by both Kennedy and Phillimore JJ in rejecting impact as relevant to liability were consistent with a corrective justice explanation of the law. Having argued this, the same could not be said for the limitations on liability proposed by both judges. Kennedy J proposed his limitation in the following way:
It is not, however, to be taken that, in my view, every nervous shock occasioned by negligence and producing physical injury to the sufferer gives a cause of action. There is, I think, one important limitation. The shock, in order to give a cause of action, must be one which arises from a fear of immediate personal injury to oneself. A. has, I conceive, no legal duty not to shock B.’s nerves by the exhibition of negligence towards C. or towards the property of C.182
179 Dulieu v White & Sons [1900] All ER Rep 353, 360. 180 Ibid 361. 181 Ibid. 182 Ibid 357. As authority for this proposition, his Honour referred to the judgment of Bruce and Wright JJ in the case of Smith v Johnson & Co (1897), cited in (1897) 2 QB 61, and to the text of Pollock, Torts (6th ed) 50. The court in Smith had held that where psychiatric injury resulted from the shock of witnessing another person being killed, damages were too remote to be compensable.
158
Although not discussed in great depth in subsequent cases, Phillimore J also proposed a rule to limit liability. Whilst coming to the conclusion that fright with consequent physical damage could support an action, unlike Kennedy J, Phillimore J did not consider that as between users of the highway, there was a duty not to frighten others by one’s conduct in charge of a vehicle.183 His Honour stated:
There are dangers sometimes from the traffic at Charing Cross which might frighten, not only an inexperienced and elderly country woman, but an experienced and cool citizen, the ideal vir constans for whom εμπειρια makes αυδρεια…It may be – I do not say it is – a person venturing into the street takes his chance of terror. If not fit for the streets at hours of crowded traffic, he or she should not go there. But if a person, being so unfit, either permanently or temporarily, stays at home, he or she may well have a right to his or her personal safety…..and wilfully or negligently to invade this right, and so induce physical damage, may give rise to an action.184
His Honour distinguished circumstances involving users of the highway from the circumstances in Dulieu by stating that such a duty may exist when one was in one’s own home, as was the case in Dulieu.185 Phillimore J held in the circumstances that a duty of care was owed to the claimant, but the limitation he placed on the finding outlined above clearly limited the application of these principles to cases in which the claimant was in their own home. From Phillimore J’s perspective, cases in which the claimant suffered physical injury caused by fright but who did not suffer such injury whilst in their own home, may not have been owed a duty
183 Dulieu v White & Sons [1900] All ER Rep 353, 361. As such, Phillimore J held that impact was required in such a case as Coultas, and, using the authority of Holmes v Mather (1875) LR 10, stated that he was in agreement with the decision in Mitchell, as well as with the decision in Slade. 184 Ibid 361-2. The Latin phrase vir constans roughly translates to the steady man. The Greek words εμπειρια and αυδρεια translate in English to experience and less fearful respectively. 185 Ibid 362.
159 of care unless there was some kind of physical impact.186 Both Kennedy J’s and Phillimore J’s limitations were inconsistent with corrective justice.187
5.5 Hambrook v Stokes Brothers (1924)188
In Hambrook, the third of this early trilogy of cases decided before the seminal case of Donoghue v Stevenson,189 this pattern would be repeated. The claimant’s wife, Mrs Hambrook, suffered nervous shock due to witnessing a motor accident which appeared likely to injure or kill her children. This factual situation was at odds with the limitation on liability advanced by Kennedy J in Dulieu that shock must have arisen from the fear of immediate injury to oneself.190 The scientific legitimacy of this limitation on liability was called into question in Hambrook on the basis of advancing scientific understandings of the causes of psychiatric disorders, which was heavily influenced by the effects of World War I.
186 Phillimore J’s approach of limiting the duty of care to only to the ‘ideal virs constans’ rather than Kennedy J’s approach of limiting liability ultimately has gained more traction in Australian law. In particular, Phillimore J’s approach is reflected in the modern law’s consideration of whether the claimant is a person of normal fortitude when considering whether psychiatric injury to the claimant was reasonably foreseeable: see Des Butler, Damages for Psychiatric Injuries (Federation Press, 2004) 38-9. This is discussed further in chapter 6 in relation to Bourhill v Young Bourhill v Young [1942] 2 All ER 396, in chapter 7 in relation to Jaensch v Coffee (1984) 155 CLR 549, and in chapter 8 in relation to Tame v New South Wales (2002) 211 CLR 317. 187 This argument is considered in more depth below at section 5.5.2 in the analysis of Hambrook. Although not a central part of this thesis, it is nonetheless relevant to the argument in 5.3 that Dulieu demonstrates well the phenomenon of theoretical disagreement. Whilst Kennedy J and Phillimore J considered many of the same authorities, they reached quite different positions as to whether these authorities were applicable in the present case. Significantly, whilst there was overall agreement as to the finding that the claimant’s action should succeed, their Honours disagreed as to the correct basis of the duty of care which existed in the case. Whilst Kennedy J viewed the appropriate source of the duty of care in this case to be the general duty owed by users of users of the highway to other users of the highway, Phillimore J took a more restricted approach, considering the fact that Mrs Dulieu was sitting in her front room to be significant in the finding that she was owed a duty. His Honour stated that a person going out into the street ‘takes his chance of terror’, suggesting that impact might still be required in such circumstances. It is also notable that whilst Kennedy J declined to follow the American cases of Mitchell and Spade, Phillimore J considered these cases to have been correctly decided and persuasive, using these cases to justify a finding that the duty between users of the highway was perhaps more limited than it was in relation to someone in Mrs Dulieu’s position. 188 [1924] All ER 110. 189 [1932] AC 562. 190 See Dulieu v White & Sons [1900] All ER Rep 353, 357 (Kennedy J).
160
Bankes LJ in the English Court of Appeal held that Kennedy J’s limitation in Dulieu lacked a principled foundation.191 His Lordship held that the extent of one’s duty in negligence was to be determined by reference to what one ought to have anticipated. Bankes LJ stated that a woman might receive a mental shock leading to injury if the defendant’s lorry rolled down the street and caused her to fear for her own safety. This being the case, Bankes LJ regarded it as arbitrary to distinguish between such a case and the case of another woman whose injury by shock resulted from fear for the safety of her children.192 Bankes LJ accordingly held that the claimant could recover if he could establish that the shock suffered by his wife was caused by reasonable fear of injury to her children.193
Atkin LJ described Kennedy J’s limitation in Dulieu as arbitrary and unprincipled for the same reasons and regarded the distinctions brought about by Kennedy J’s limitation on liability as inconsistent with a credible system of justice.194 However, the finding by Bankes and Atkin LJJ logically lead to the question of whether liability would extend to unrelated third party bystanders. Atkin LJ found that there was no reason in principle not to extend liability to unrelated third party bystanders.195 Bankes LJ instead introduced a requirement that psychiatric injury must have resulted from one what directly perceived with one’s own unaided senses.196 Whilst Atkin LJ’s approach in this respect is explicable in terms of corrective justice, Bankes LJ’s approach is not. Bankes LJ’s limitation bears no relation to whether the defendant morally wronged the claimant, and makes arbitrary and unprincipled distinctions as a result.
As such, Bankes and Atkin LJJ in Hambrook declined to apply Kennedy J’s limitation on liability for reasons of principle, only for Bankes LJ to suggest further limitations on liability which themselves might have been criticised as being unprincipled. The extension of liability in Hambrook to cases where psychiatric injury results from fear of injury or death to one’s children – described as a ‘quantum leap’ in the development of the rules in relation to
191 Hambrook v Stokes Brothers [1924] All ER Rep 110, 113-4 (Bankes LJ). 192 Ibid. 193 Ibid 113-4. 194 Ibid 116. Sargant LJ disagreed, taking the view of Kennedy J in Dulieu that the claimant could not succeed unless he could establish that his wife’s illness was caused by shock as a result of apprehension of immediate personal injury to herself. Sargant LJ indicated he was concerned about the floodgates opening and too high a burden being placed on defendants if Kennedy J’s limitation in Dulieu was rejected: ibid 119. 195 Ibid 113-4. 196 Ibid 116.
161 negligently inflicted psychiatric injury197 – can be understood as principled. Psychiatric injury in such cases was appreciable at a common understandings level at the time and as appreciable as psychiatric injury resulting from fear of injury or death to oneself.198
Relevant to the decision in Hambrook was the recent decision in Re Polemis and Furness Withy & Co,199 in which the Court of Appeal decided upon a test of directness when considering whether damage was too remote a consequence of the defendant’s negligence.200 In doing so, the court abandoned any appeal to intuition-based reasoning implicit in remoteness tests which included notions such as whether damage was an ordinary, natural or probable result of the defendant’s negligence.201 Re Polemis also established that when considering whether the defendant was negligent, the court had to consider what the defendant ought to have anticipated as a reasonable man.202 This means that at the time of Hambrook, the concept of reasonableness was considered only in relation to whether the defendant had breached the duty of care. The question of the existence of a duty of care was determined by whether the case fell within one of the established and recognised duty situations, and remoteness was determined according to the Re Polemis test of directness.203
The court in Hambrook was faced with a fact situation which tested the existing legal principles. In choosing which direction to take, the court in Hambrook – as with the court in Dulieu – did not have any particular authority which strictly bound its decision. Although Kennedy J’s limitation on liability in Dulieu was not applied in England more than once before
197 See Des Butler, Damages for Psychiatric Injuries (Federation Press, 2004) 40. 198 This was an action brought by Mrs Hambrook’s husband for wrongful death pursuant the Fatal Accidents Act 1946 (known as Lord Campbells’ Act). This required the claimant to show that his wife’s death was caused by the negligence of the defendant, and that if his wife had not been killed she would have been able to maintain a cause of action and recover damages against the defendant. In argument, the claimant argued that his wife suffered shock due either to fear of immediate personal injury to herself or to her children, and that her death was caused by this shock. The defendant admitted negligence, but argued that the negligence was not the cause of injury to the claimant’s wife. In particular, the defendant argued that shock caused by fear of injury to one’s children did not give rise to a cause of action. 199 [1921] 3 KB 560 (‘Re Polemis’). 200 Ibid 571-2 (Bankes LJ), 574 (Warrington LJ), 577 (Scrutton LJ). 201 Such as the test in The Notting Hill 9 PD 105 applied by the Privy Council in Coultas, and the test which considered whether there was a natural and continuous sequence between the defendant’s negligence and the claimant’s injury applied in Dulieu. 202 Re Polemis and Furness Withy & Co [1921] 3 KB 560, 571-2 (Bankes LJ). 203 Such as the duty of users of the highway to other road users. This has been discussed above at section 5.3 in relation to Coultas.
162 the decision in Hambrook,204 it had found much more support in Scotland.205 As with Dulieu, it is again significant that in light of this legal uncertainty the decision in Hambrook is consistent with the approach advanced in Part II.
5.5.1 Prevailing understandings of the causes of psychiatric disorders
The facts in Hambrook demonstrated the broad changes in society that had taken place since Coultas and Dulieu. In particular, as a result of technological developments which had occurred, cases of negligently inflicted psychiatric injury would from that point on typically relate to accidents involving motor vehicles rather than trains and buggies.206 Like Mrs Coultas and Mrs Dulieu, trauma of the kind which was experienced by Mrs Hambrook has been associated in the modern scientific literature with PTSD, as well as other anxiety disorders related to the experiencing of traumatic stress.207
There are three particularly important pieces of evidence which can be referred to when considering prevailing understandings at the time of Mrs Hambrook’s accident. First, there were substantial developments in expert understandings of trauma-induced psychiatric disorders as a result of World War I. In between the time of Dulieu and Hambrook, Erichsen’s railway spine as a discrete condition was beginning to be discredited. The medical world was gradually coming to the view that trauma caused changes to the structure and function of the mind directly rather than through damage to neural tissues in the spine through the forces
204 See The Rigel [1912] P 99. However, it was applied in Hambrook itself by Sargant J in dissent (at 163-4), and later in King v Phillips [1953] 1 QB 429 by Hodson LJ (at 443). Also see Des Butler, Damages for Psychiatric Injuries (Federation Press, 2004) 38, fn 29. 205 See, eg, Cooper v Caledonian Railway Company 1902 SC 880, 882-3; A v B’s Trustees (1906) 13 SLT 830, 831; Gilligan v Robb 1910 SC 856; Wallace v Kennedy (1908) 16 SLT 485; Fowler v North British Railway Company 1914 SC 866; Brown v Corporation of the City of Glasgow 1922 SC 527. See Des Butler, Damages for Psychiatric Injuries (Federation Press, 2004) 38, fn 30. 206 Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 108. 207 Exposure to the extreme stress of witnessing an accident likely involving serious injury or death to one’s children is outside the normal range of human experiences, and of a character which has been associated with the onset of PTSD: see Mardi J Horowitz, ‘Stress-Response Syndromes: A Review of Posttraumatic Stress and Adjustment Disorders’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 54; Des Butler, Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 240, citing JL Herman, Trauma and Recovery (Pandora, 1992) 15-6.
163 involved in railway accidents.208 Such advancements in knowledge were in no small part due to World War I, which was responsible for increasing research interest in the effects of trauma on the mind.
As a result of war-related trauma research in the early twentieth century, scientists came to understand that fright from exposure to the horrors of war could cause a person to suffer from psychiatric symptoms.209 The work of researchers such as Stierlin, Myers, Jarrett, Rivers and Mott at this period in time showed the aetiological significance of the experiencing of violent emotions in relation to the onset of mental disorders.210 It was also at this time that it became clear to researchers that it was not necessarily the exploding of shells which caused ‘shell- shock’, but a range of traumatic stressors.211 Researchers further came to agree that the psychiatric disorders suffered by soldiers returning from World War I and those suffered by
208 Eric Michael Caplan, ‘Trains, Brains, and Sprains: Railway Spine and the Origins of Psychoneuroses’ (1995) 69 Bulletin of the History of Medicine 387, 388-9. 209 Writing in his doctor’s diary, front-line medical officer Captain FG Chandler stated:
There is the horror of seeing men and animals wounded and maimed and mutilated, or torn to pieces or lying dead in some grotesque attitude… One has to inhibit nausea and disgust, and the feeling that one may oneself be like that in a few minutes’ time, and I believe that it is these inhibitions that constitute the chief strain of this kind of warfare… Much mental and emotional inhibition is necessary to preserve one’s reason: FG Chandler, Memories of August 1917. Extract From a Doctor’s Diary, London Hospital Gazette (London War Memorial, 4, 1918): cited in Edgar Jones, ‘The Psychology of Killing: The Combat Experience of British Soldiers During the First World War’ (2006) 41(2) Journal of Contemporary History 229, 231.
210 E Stierlin, Über Psychoneuropathische Folgezustände bei den Überlebenden der Katastrophe von Courriéres am 10 Marz 1906 (Unpublished Doctoral Dissertation, University of Zürich, 1909); E Stierlin, ‘Nervöse und Psychische Störungen nach Katastrophen’ (1911) 37 Deutsches Medizinische Wochenschrift 2028-35; C S Myers, ‘A Contribution to the Study of Shell Shock’ (1915) Lancet 316-20, cited in Bessel A van der Kolk, Lars Weisaeth and Onno van der Hart, ‘History of Trauma in Psychiatry’, in Bessel A van der Kolk and Alexander C McFarlane (eds), Traumatic Stress: The Effects of Overwhelming Experience of Mind, Body, and Society (Guilford Publications, 2007) 48-51. Also see MC Jarrett, ‘Shell-Shock Analogues: Neurosis in Civil Life Having Sudden or Critical Origin’ (1918) 2 Medicine and Surgery 266-80; WHR Rivers, ‘The Expression of War Experience’ (1918) The Lancet 173-7; FW Mott, ‘Mental Hygiene and Shell-Shock During and After the War’ (1917) The British Medical Journal 39- 42 (14 July 1917). Also see Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 94. 211 Ted Bogacz, ‘War Neurosis and Cultural Change in England, 1914-22: The Work of the War Office Committee of Enquiry into Shell-Shock’ (1989) 24 Journal of Contemporary History 227, 234.
164 civilians as a result of railway accidents were similar,212 with general consensus being reached in relation to this point in 1918 at the Fifth International Psycho-Analytical Congress held in Budapest.213
For Jarret, it was important to note the similarities between psychiatric injuries suffered as a result of war and as a result of civilian accidents. He argued that focussing attention on this point would have positive benefits for civilians in that they could receive a similar level of care and sympathy as ‘shell-shocked’ soldiers. Doing this would also be in the interests of soldiers who would benefit from the advances in medical treatments which had taken place as a result of treating civilians.214 Jarret stated that ‘the analogues of shell-shock in civil life appear frequently at the Psychopathic Hospital’.215 Of the causes of psychiatric injury in civil life, ‘the range…is from trivial accidents, such as a quarrel or reprimand, to a profound shock, such as an accident in which the patient is severely injured and a companion killed.’216
Following the outbreak of World War I, newspaper articles in England often reported about the effect of shells on soldiers’ minds.217 A number of newspaper articles in The Times in 1915 referred to the connection between a range of traumatic stressors and mental disorders.218 The following year, newspaper articles about ‘shell-shock’ were so common that ‘the shell-shocked soldier had become a virtual cliché.’219 Testament to shifting public attitudes to ‘shell-shocked’
212 See H Oppenheim, Diseases of the Nervous System. A Textbook for Students and Practitioners of Medicine (transl. by EE Mayer) (JB Lippincott and Co, 1901); MC Jarrett, ‘Shell-Shock Analogues: Neurosis in Civil Life Having Sudden or Critical Origin’ (1918) 2 Medicine and Surgery 266-80; WHR Rivers, ‘The Expression of War Experience’ (1918) The Lancet 173-7; FW Mott, ‘Mental Hygiene and Shell-Shock During and After the War’ (1917) The British Medical Journal 39-42 (14 July 1917). Also see Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 94. 213 Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 95. 214 MC Jarrett, ‘Shell-Shock Analogues: Neurosis in Civil Life Having Sudden or Critical Origin’ (1918) 2 Medicine and Surgery 266, 266. 215 Ibid 267. 216 Ibid. 217 Ted Bogacz, ‘War Neurosis and Cultural Change in England, 1914-22: The Work of the War Office Committee of Enquiry into Shell-Shock’ (1989) 24 Journal of Contemporary History 227, 234. 218 See stories dated 8 April, 24 April and 25 May 1915: cited in Ted Bogacz, ‘War Neurosis and Cultural Change in England, 1914-22: The Work of the War Office Committee of Enquiry into Shell-Shock’ (1989) 24 Journal of Contemporary History 227, 234. 219 Ted Bogacz, ‘War Neurosis and Cultural Change in England, 1914-22: The Work of the War Office Committee of Enquiry into Shell-Shock’ (1989) 24 Journal of Contemporary History 227, 234. The significant extent of care required for soldiers returning from the war suffering
165 soldiers were events which took place in English politics following the end of the war. At this time, there was a movement towards recognition of the idea that ‘shell-shock’ could be suffered by soldiers of any education and social standing. Speaking in the House of Lords on 28 April 1920 moving a motion to establish a committee to investigate the phenomenon of psychiatric disorders following from traumatic experiences during the war, Lord Southborough stated that Great Britain could not forget about the horror of insanity, suicide and death resulting from the suffering of ‘shell-shock’.220 Two years later, the War Office Committee of Enquiry into Shell- Shock reported that ‘the evidence of [the] distinguished witnesses [giving evidence to the committee] should remove from the public mind any doubt of the true nature of “shell- shock”’.221 The report, which declared that ‘shell-shock’ was not particular to any class or level of education, was reported widely in the national press in 1922.222
from ‘shell-shock’ would likely have bought public attention to the seriousness of the condition. Not only was it apparent that the mentally infirm were in urgent need of medical care following the war, it was also clear that a significant number of these former soldiers were entitled to disability pensions. Two years after the end of World War I, there were around 65,000 returned soldiers in Great Britain receiving a disability pension as a result of suffering from ‘shell- shock’: Ted Bogacz, ‘War Neurosis and Cultural Change in England, 1914-22: The Work of the War Office Committee of Enquiry into Shell-Shock’ (1989) 24 Journal of Contemporary History 227, 234. During the 1920s in Great Britain, approximately 9,000 returned soldiers were in institutions housing the ‘insane’: ‘Questions and Answers. House of Commons, 11 December 1924’, question by Sir Herbert Nield, in PRO PIN15/2499: cited in Joanna Bourke, ‘Effeminacy, Ethnicity and the End of Trauma: The Sufferings of ‘Shell-Shocked’ Men in Great Britain and Ireland, 1914-39’ (2000, Special Issue: Shell-Shock) 35(1) Journal of Contemporary History 57, 63. There was similar need in the United States of America, with an estimated 35,846 returning veterans suffering from neurosis following World War I: E Lewy, ‘Compensation for War Neurosis’ (1942) 1 War Medicine 887; cited in Michael Trimble, Post- Traumatic Neurosis (Wiley, 1981) 102. It was also estimated that and that the US government paid between $30,000 and $35,000 in compensation to each of these returning soldiers: ibid. The army in Great Britain responded to the large numbers of soldiers suffering from ‘shell- shock’ by creating special army mental hospitals. By 1918 the army had created 19 special neurological hospitals: Ted Bogacz, ‘War Neurosis and Cultural Change in England, 1914-22: The Work of the War Office Committee of Enquiry into Shell-Shock’ (1989) 24 Journal of Contemporary History 227, 235. 220 Ibid 227. 221 Report of the War Office Committee of Enquiry into ‘Shell-Shock’ (Cmd. 1734, London, 1922) 189: cited in Ted Bogacz, ‘War Neurosis and Cultural Change in England, 1914-22: The Work of the War Office Committee of Enquiry into Shell-Shock’ (1989) 24 Journal of Contemporary History 227, 239. The report also stated:
Witnesses were agreed that any type of individual might suffer from one or other form of neurosis if exposed for a sufficient length of time to the conditions of modern warfare, and that it is extremely difficult to say beforehand what type of man is likely to break down: ibid.
222 Report of the War Office Committee of Enquiry into ‘Shell-Shock’ (Cmd. 1734, London, 1922): cited in Ted Bogacz, ‘War Neurosis and Cultural Change in England, 1914-22: The Work of the War Office Committee of Enquiry into Shell-Shock’ (1989) 24 Journal of Contemporary
166
Historian Ted Bogacz has commented that the ‘near unanimous sympathy and support’ for Lord Southborough’s comments in the House of Lords was a testament to the vast shift in attitudes towards mental disorders that had taken place since 1914.223 Bogacz consequently argued that World War I ‘fundamentally challenged inherited social and cultural ideas, including traditional views of mental illness and its treatment.’224 The report of the War Office Committee of Enquiry into Shell-Shock in 1922 was an important indicator of this shift in social views towards mental illness.225
The second important piece of evidence regarding common understandings relates to the likely significance of automobile accidents in the mind of the general public in the early twentieth century, particularly considering that the accident causing Mrs Hambrook’s injury accident involved a motor vehicle rather than a train or horse-drawn buggy. The invention of the internal-combustion engine and the automobile was a development of significant cultural significance in Britain, introducing into society the new menace of the automobile accident.226
History 227, 250. However, the report also at times favoured a view that ‘shell-shock’ was a ‘regrettable weakness’, and stated that the best way to respond to the phenomenon was better training, equipment and leadership: Simon Wessely, ‘Twentieth-Century Theories on Combat Motivation and Breakdown’ (2006) 41(2) Journal of Contemporary History 269, 272. The press in England in the 1920s was also not averse to equating the suffering of ‘shell-shock’ with a failure of willpower and a lack of courage. For example, The Times in London reported in 1922 in this context that character and courage were the result of an ability to control one’s emotions. The view that the ability to control one’s emotions was a sign of character and courage amongst respectable citizens was not particular to England in 1922, but was actually widespread in Germany as well: George L Mosse, ‘Shell-Shock as a Social Disease’ (2000) 35(1) Journal of Contemporary History 101, 103. ‘Shell-shock’ was indeed attributed by German psychiatrists during World War I to a lack of willpower, and in this context sufferers of nervous disorders were sometimes seen to be emblematic of the general degeneration of morals and values within society: Peter Riedesser and Axel Verderber, Maschinengewehre Hinter Der Front: Zur Geschichte Der Deutschen Militärpsychiatrie (Frankfurt a. Main, 1996) 35; cited in George L Mosse, ‘Shell-Shock as a Social Disease’ (2000) 35(1) Journal of Contemporary History 101, 103, 105. It was for this reason that the approach of German and English military physicians towards sufferers of ‘shell-shock’ during World War I was one of curing these soldiers of their ‘weaknesses’ and sending them back to the front line: George L Mosse, ‘Shell-Shock as a Social Disease’ (2000) 35(1) Journal of Contemporary History 101, 106-7. 223 Ted Bogacz, ‘War Neurosis and Cultural Change in England, 1914-22: The Work of the War Office Committee of Enquiry into Shell-Shock’ (1989) 24 Journal of Contemporary History 227, 229. 224 Ibid 227. 225 Ibid. 226 Invention of the internal-combustion engine is often credited to Stuart Perry who invented a two-cycle engine in New York between 1844 and 1866, and to a Belgian inventor named Etienne Lenoir who developed such an engine in 1860. In reality, there were a number of other inventors who contributed to bringing the internal-combustion engine to the world, although
167
From the early twentieth century automobiles soared in popularity. In the United States of America, automobile registrations increased from 8,000 to 8,000,000 between 1900 and 1920, a thousand-fold increase. Registrations rose to three times this number in the 1920s.227 In Britain, the numbers were lower although automobiles were still popular and increasingly so during this time. There were 16,000 automobiles on the roads in Britain in 1905, this number tripling to 48,000 by 1909. By 1912 this number was 88,000 and by 1914 was 132,000.228 By 1930 there were around 1.5 million automobiles registered in Britain.229 This growth in popularity is well-summarised by Colonel Sir Alan Burgoyne MP who, when addressing the Royal Society of Arts in 1925 on the place of the automobile on modern society, stated somewhat prophetically:
twenty-five years ago the motor-car was an eccentricity; just before the war it had become an established fact, but was still a luxury. To-day it is a necessity, and in the near future no artisan’s cottage will be built without its garage as part of the design.230
As with other significant technological developments, the advent of automobiles had a significant negative side, introducing a new danger into society – the automobile accident. The rising popularity of cars resulted in a corresponding rise in the numbers of automobile accidents, which became a common occurrence in the early twentieth century. In Britain, the numbers of those killed in accidents involving automobiles increased considerably from the turn of the twentieth century. In 1903, 34 people were killed and the numbers of people killed per year rose considerably thereafter.231 In 1910, there were 524 deaths resulting from automobile accidents, and in 1914, this number was 1,325.232 By 1923, the number had risen to nearly 2,500.233 If the increasing number of road fatalities in Britain was concerning, the equivalent number in the United States of America was positively alarming. Across the Atlantic
Lenoir’s engine was the first to succeed commercially: J Flink, The Automobile Age (MIT Press, 1990) 11. 227 Mark S Foster, ‘The Automobile and the City’ in DL Lewis and L Goldstein, The Automobile and American Culture (University of Michigan Press, 1983) 29. 228 Peter Thorold, The Motoring Age: The Automobile and Britain 1896-1939 (Profile Books, 2010) 42. 229 Ibid 128. 230 Ibid. 231 Annual Report of the Registrar General 1903, 272-9: cited in PEH Hair, ‘Deaths from Violence in Britain: A Tentative Secular Survey’ (1971) 25(1) Population Studies 5, 6. 232 P Granville Edge, ‘The Growth of Mortality Due to Motor Vehicles in England and Wales, 1904-23 (1926) 89(3) Journal of the Royal Statistical Society 405, 406. 233 Ibid.
168
Ocean, automobile fatalities were much higher. In 1917 alone, there were over 9,000 fatalities. This number rose dramatically between 1917 and 1926 to more than 20,000.234 It was consequently stated by two American commentators in 1928 that the ‘automobile as an instrument of injury and death is responsible for one of the most significant groups of personal risks existing in our present age.’235
Unsurprisingly, automobile accidents were commonly reported upon in the British press in the early twentieth century.236 Moreover, newspaper reports of these accidents in the early twentieth century were not always sanitised as they tend to be in modern times, instead on occasion including lurid details of the horrors of the incident in question. Take one example appearing in The Northampton Mercury on 23 August 1907:
A shocking accident, resulting fatally occurred on Monday morning shortly before 12 o’clock, on the London road, about a mile from Potterspury. John Moore, aged 60, a labourer on the Duke of Grafton’s Home Farm was returning to Potterspury from Stony Stratford where he had been
234 ‘Mortality From Automobile Accidents, 1922-1926’ (1942) (51) National Health Reports 3113, 3136; National Automobile Chamber of Commerce data: cited in SH Nerlove and WJ Graham, ‘The Trend of Personal Automobile Accidents’ (1928) 1(2) The Journal of Business of the University of Chicago 174, 174. 235 SH Nerlove and WJ Graham, ‘The Trend of Personal Automobile Accidents’ (1928) 1(2) The Journal of Business of the University of Chicago 174, 174. 236 See, eg, Dundee Evening Telegraph, ‘Fatal Automobile Accident’, 17 July 1900, 5; Nottingham Evening Post, ‘Fatal Automobile Accident’, 17 March 1902, 3; Manchester Courier and Lancashire General Advertiser, ‘Automobile Fatality’, 9 August 1902, 9; Sheffield Daily Telegraph, ‘An American Automobile Disaster’, 28 August 1902, 5; Nottingham Evening Post, ‘Automobile Fatality’, 16 December 1902, 3; Bournemouth Daily Echo, ‘The Great Automobile Race: Many Deaths’, 25 May 1903, 2; Freeman’s Journal, ‘Shocking Automobile Catastrophe’, 14 October 1903, 6; Bournemouth Daily Echo, ‘The Motor Fatality at Brogkenhurst’, 8 June 1904, 4; The Globe, ‘Automobile Club Reports: Motor Car Fatality’, 17 June 1904, 7; The Bystander, ‘Automobile Topics: The Sensationalism of the Markyate Tragedy’, 17 May 1905, 42-3; Western Times, ‘Automobile Overturned’, 13 June 1905, 8; Pall Mall Gazette, ‘Terrible Automobile Fatality’, 1 April 1907, 6; Waterford Standard, ‘The Fatal Motor Accident to American Tourists’, 12 June 1907, 2; Northampton Mercury, ‘Motor Fatality Near Potterspury’, 23 August 1907, 3; Driffield Times, ‘Another Automobile Fatality’, 28 September 1907, 3; Jersey Independent and Daily Telegraph, ‘Terrible Motor Smash. Many Killed and Injured’, 5 October 1907, 8; The Bystander, ‘Automobile Topics’, 4 December 1907, 42, 44; Gloucestershire Echo, ‘Automobile Accident in France: English Car Runs Over Mother and Child’, 30 May 1908, 1; The Bystander, ‘Automobile Topics: Counting the Cost’, 12 August 1908, 48, 50; The Berwick Advertiser, ‘Automobile Fatality’, 11 September 1908, 5; Dorking and Leatherhead Advertiser, ‘Terrible Motor Car Fatality: Automobile Club’s Official Killed at Holmwood’, 16 July 1910, 5; Dundee Courier, ‘Automobile Dashes Into Train’, 25 August 2010, 7; Shields Daily News, ‘Automobile Fatality’, 25 June 1912, 3; Dundee Evening Telegraph, ‘Fatal Automobile Accidents’, 25 June 1912, 1; Sporting Times, ‘Motor Sparrings’, 21 December 1912, 9; Western Times, ‘Tavistock Fatality’, 7 December 1920, 5.
169
to see Dr Bull with reference to a bad leg. When a mile from home he stepped off the path into the road about 5 yards in front of a motor-car travelling in the direction of Potterspury. Owing to his being very deaf, it is assumed that the unfortunate man failed to hear the approach of the car. The driver immediately applied the brakes and turned sharply to the off-side, mounting the grass bank, but it was too late. The splashboard caught Moore’s arm, and threw him towards the body of the motor-car, and the centre-pin of the hood – which was down – penetrated the base of the skull, causing a terrible wound, from which a portion of the brain protruded. Medical aid was at once sought by the motorists, and Dr Bull, of Stony Stratford, was quickly in attendance, but the unfortunate man was dead.237
Another article from 1907 reports on the graphic testimony of an eyewitness to an accident:
There was a cloud of dust, and when it cleared he saw a terrible sight. Mr Johnson was groaning under the car, and the other four [passengers] were lying in all postures in the ditch. Mr Johnson was found to be suffering from terrible injuries to the base of his skull. His right ear was almost cut off, and his chest severely damaged. It was a hopeless case from the first, and he died without regaining consciousness.238
In another example, this from 8 June 1911, The Yorkshire Post reported on a bus accident in Portugal:
A shocking motor bus disaster is reported today from Miranda do Corvo. A ’bus, conveying sixteen passengers into the town to join in the celebration of the Republican victory at the polls, was run into by an automobile which came down hill at a high speed and crashed into it at a sharp curve. The motor ’bus was hurled over the edge of a ravine, and wrecked, four persons being killed and ten injured. The driver of the automobile had his brains dashed out against a rock.239
Other examples can be found in the news of the day. In one, the story tells of the unfortunate victim being ‘pinned beneath one of the wheels’ of the automobile which had struck her, thereby sustaining ‘such terrible injuries to her head that death must have been almost
237 Northampton Mercury, ‘Motor Fatality Near Potterspury’, 23 August 1907, 3. 238 The Wellington Journal and Shrewsbury News, ‘Another Motor Disaster. Shocking Fatality’, 15 June 1907, 8. 239 ‘A Motor ’Bus Thrown Down a Ravine. Four Killed, Ten Injured’, 8 June 1911, 8.
170 instantaneous.’240 Taking this evidence into consideration in combination, there is some reason to contend that the ordinary member of the public familiar with the press in Britain at the time may well have been aware of the significant risk of death and serious injury posed by automobiles.
The third and perhaps most important matter to take into consideration in considering prevailing understandings is that Mrs Hambrook’s injury was caused by fear of the death of her child rather than fear of her own death, as was the case with in Coultas and Dulieu. This is a significant difference because mental disorders had been long been associated in medical and common understandings with the loss of a child in tragic and unexpected circumstances. In particular, it has long been understood that losing a child has the potential to result not just in grief and suffering but in lasting psychiatric illness. In his important work Mourning and Melancholia published in 1917, Freud discussed the two related conditions of mourning and melancholia, which he argued were both associated with experiencing the loss of a loved one.241 Mourning, considered by Freud to be a normal reaction to such a loss, was distinguished from melancholia, which although also was precipitated in some circumstances by loss of a loved one, was considered psychogenic in nature and consequently pathological.242 Describing the symptoms of melancholia, Freud stated:
The distinguishing mental features of melancholia are a profoundly painful dejection, cessation of interest in the outside world, loss of the capacity to love, inhibition of all activity, and a lowering of the self-regarding feelings to a degree that finds utterance in self-reproaches and self- revilings, and culminates in a delusional expectation of punishment.243
The features of mourning were almost identical, except that there was no loss of self-regard in those simply mourning, and the unpleasant symptoms associated with mourning were expected to pass with time.244 It should be borne in mind that the subject of melancholia by this time was
240 The Nottingham Evening Post, ‘One Woman Killed and Two Injured. Shocking Motor Accident in Nottingham. Driver’s Fatal Mistake’, 21 April 1914, 5. 241 S Freud, ‘Mourning and Melancholia’ in Leticia Glocer Fiorini, Thierry Bokanowski, and Sergio Lewkowicz, On Freud’s ‘Mourning and Melancholia’ (Karnac Books, 2009) 43-4. 242 Ibid. 243 Ibid 44. 244 Ibid.
171 certainly not new, having been written about since the keeping of written records.245 Writing 500 years before the birth of Christ, Hippocrates described a condition called melancholia which was characterised by symptoms very similar to Freud’s melancholia and to modern understandings of depression.246 A similar condition was also written about by medical practitioners in both Ancient Greece and Ancient Rome.247 In 1621, a condition called melancholy was also outlined by Robert Burton which was similar in nature.248
Similar perspectives to Freud’s melancholia were adopted by medical practitioners in the United States of America. By 1918, a statistical manual was published to assist medical practitioners in making psychiatric diagnoses which described a condition similar to melancholia named ‘reactive depression’. Like melancholia, reactive depression was considered to be distinct from ‘normal’ sadness following external causes such as bereavement, becoming pathological when the symptoms were more severe in nature and suffered over a prolonged period of time.249 As such, there is some reason to contend that an expert in 1924 may well have been able to appreciate the risk of psychiatric injury to Mrs Hambrook in the circumstances of the case.
There is also evidence which sheds some light on common understandings of mental disorders caused by the loss of a child in tragic circumstances. The pain of losing a child has seemingly been well-known throughout human history, from the time of antiquity through to modern times. Grief over the loss of a loved one was known in ancient Greece as lupé and penthos, and the outward manifestation of grief – mourning – was often accompanied by lamentation and acts of ritual such as sobbing, tearing at one’s hair, and the beating of one’s chest.250 Like those in modern society, the ancient Greeks spoke of being ‘in mourning’ – en penthei – following the death of a loved one, giving recognition to the idea that following such a death, there was a period during which one would suffer the emotional pain of grief.251 For example, in
245 Allan V Horwitz and Jerome C Wakefield, ‘The Age of Depression’ (2005) Public Interest 39, 41. 246 Ibid. 247 Ibid. 248 In The Anatomy of Melancholy: cited in Allan V Horwitz and Jerome C Wakefield, ‘The Age of Depression’ (2005) Public Interest 39, 41. 249 See Statistical Manual for the Use of Hospitals for Mental Diseases (1918): cited in Allan V Horwitz and Jerome C Wakefield, ‘The Age of Depression’ (2005) Public Interest 39, 44. 250 David Konstan, The Emotions of the Ancient Greeks: Studies in Aristotle and Classical Literature (University of Toronto Press, 2006) 244. 251 Ibid 252.
172
Republic, Plato in the 4th century BC spoke of being ‘in misfortune and mourning and lamentation’.252
There are many examples of prominent philosophers and writers from the ancient world discussing the particular subject of the death of a child. Greek playwright Euripides famously stated in the fifth century BC, ‘What greater pain can mortals bear than this, to see their children die before their eyes’.253 Extensive literature exists going back to the time of antiquity concerning the loss of a child, including consolation letters, works of poetry, and books on how to cope with the emotional pain of this painful experience. The Greek philosopher Crantor, who lived in the fourth century BC, is widely regarded as the originator of the consolation letter, letters commonly written in the ancient world to those suffering emotional pain resulting from the death of a loved one. One of his most famous works was titled On Grief, a letter written to Hippocoles, a friend who was grieving the death of his son.254 In attempting to console his friend, Crantor wrote that grief was the price of close bonds of affection, and a natural part of life.255
The Roman philosopher Cicero was another who is well-known to have written about parental grief in the ancient world, writing about his daughter Tullia’s death in 45BC. Cicero was devastated by Tullia’s death, and expressed the idea that this grief was a disease of the mind.256 Other well-known examples of consolation letters written in the ancient world are those written by the Greek philosopher Plutarch to his wife following the death of their son, and by Roman philosopher Seneca to his friend who was grieving the loss of his infant son.257 These letters all tell of the awful pain suffered by parents resulting from the death of a child, despite the writers invariably imploring the grieving parent not to show excessive grief because death was an inevitable part of life.258
252 Ibid. 253 See Roger W Byard, Sudden Death in the Young (Cambridge University Press, 2010) 1. 254 Amy J Catalano, A Global History of Child Death (Peter Land AG) 114. 255 Ibid. 256 Ibid. 257 See Plutarch, ‘Consolation to His Wife’ (‘Consolatio ad Uxorem’), Moralia. Vol. 7 (transl. PH de Lacy and B Einarson) (Harvard University Press and William Heinemann, 1959) 575-605: cited in Amy J Catalano, A Global History of Child Death (Peter Land AG) 114-5. 258 Amy J Catalano, A Global History of Child Death (Peter Land AG) 114-5.
173
Literature from the middle ages shows that parental grief resulting from the loss of a child was also well-understood in the Muslim world. A large number of books were written in between the thirteenth and sixteenth centuries in Syria and in Egypt which were guidebooks for parents coping with the loss of a child.259 These consolation manuals contained practical advice to parents, and were made up of hadith.260 The popularity of such books has been attributed to the large numbers of child deaths which took place during this period of time due to the Black Plague.261 Although these manuals, like the early Greek and Roman consolation letters, recommend that parents remain steadfast in the face of their loss, they nonetheless recognise the significant emotional pain suffered by parents in this situation, recommending that parents show patience during this time in order to avoid contradicting the wishes of God.262
There are numerous examples of poetry which paint a vivid picture of the torment of the loss of a child. One poem written in 1366 by Ibn Nubata appearing in a consolation manual written by al-Sakhawi in the fifteenth century speaks of the great loss suffered as a result of the death of small child:
‘The child was small,’ they say, ‘not so the grief for him,’ say I.263
Another example from the 14th century is the Middle English poem Pearl.264 In this poem the author dreams of again seeing his deceased daughter:
Since from that spot it fled that day I waited oft, in hope to see What once could drive my gloom away And charge my very soul with glee; But heavy on my heart it lay And filled my breast with misery. Yet no song ever seemed so gay
259 Ibid 115. 260 Hadith are early Islamic teachings attributed to the Prophet Muhammad: see Amy J Catalano, A Global History of Child Death (Peter Land AG) 115. 261 Amy J Catalano, A Global History of Child Death (Peter Land AG) 115. 262 Ibid. 263 Avner Gil’adi, ‘The Child Was Small…Not So the Grief For Him: Sources, Structure, and Content of Al-Sakhawi’s Consolation Treatise for Bereaved Parents’ (1993) 14(2) Poetics Today 367: cited in Amy J Catalano, A Global History of Child Death (Peter Land AG) 116. 264 Author unknown.
174
As that quiet hour let steal to me Though in my heart one thought ran free, Her fresh face wrapped in earthly clot; Earth, you have marred her purity, My secret pearl without a spot.265
Poetry telling of parental grief was also common in Europe in the middle ages and into the early years of the renaissance. There are many examples of consolation poetry from Germany in the time of Martin Luther. Many consolation manuals were written in this time, the Lutheran clergy recognising that the loss of a child caused parents unbearable sorrow.266 One of the common purposes of this literature was to assist grieving parents in letting go of their lost children, and to reduce their worries as to their children’s ultimate fate in the afterlife.267 There are also examples of grief poetry in other parts of Europe at this time. A series of poems totalling 19 separate elegies titled Laments was written by Polish poet Jan Kochanowski and published in 1580, written as a result of his great pain due to the death of his two and half year old daughter.268 Lament 1 provides an example of Kochanowski’s emotional torment:
Help me to mourn my small girl, my dear daughter, Whom cruel Death tore up with such wild force Out of my life, it left me no recourse. So the snake, when he finds a hidden nest Of fledgling nightingales, rears and strikes fast Repeatedly, while the poor mother bird Tries to distract him with a fierce, absurd Fluttering—but in vain! the venomous tongue Darts, and she must retreat on ruffled wing. “You weep in vain,” my friends will say. But then, What is not in vain, by God, in lives of men? All is in vain! We play at blindman’s buff Until hard edges break into our path.
265 This is from an English translation of the poem by Bill Stanton: see http://www.billstanton.co.uk/pearl/pearl_new.htm. 266 Amy J Catalano, A Global History of Child Death (Peter Land AG) 117-8. Luther himself experienced the loss of two children in the early sixteenth century, writing to a friend of his anguish: ibid. 267 Ibid. 268 Ibid 116.
175
Man’s life is error. Where, then, is relief? In shedding tears or wrestling down my grief?269
Another example, this one from the seventeenth century, is Robert Herrick’s ‘Epitaph Upon a Child That Died’:
Here she lies, a pretty bud, Lately made of flesh and blood: Who as soon fell fast asleep As her little eyes did peep. Give her strewing's, but not stir The earth that lightly covers her.
There are numerous English and American examples from the eighteenth and nineteenth century of grief poetry,270 and the genre has continued through to modern times.271 Newspaper articles telling of the terrible grief suffered by parents after losing a child sadly were also common in the newspapers from the turn of the twentieth century until the accident in
269 Jan Kochanowski, Laments (transl. by Stanisław Barańczak and Seamus Heaney) (Farrar, Strauss and Giroux, 1995): cited in Amy J Catalano, A Global History of Child Death (Peter Land AG) 116. 270 See, eg, Elisabeth Prentiss, ‘Stepping Heavenward’ (Warne, 1869); Theodore L Cuyler, ‘The Empty Crib’ (R Carter, 1873), Nehemiah Adams, ‘Agnes and the Key of Her Little Coffin’ (SK Whipple and Co, 1857), William H Holcombe, ‘Our Children in Heave’n (JB Lippincott and Co, 1870), and Elizabeth Stuart Phelps Ward, ‘Gates Ajar’ (Boston, Fields, Osgood, 1868): cited in Amy J Catalano, A Global History of Child Death (Peter Land AG) 116. Other famous nineteenth century examples of poetry on the subject parental grief includes William Wordsworth, ‘We Are Seven’; Ella Wheeler Wilcox, ‘When Baby Souls Sail Out’; Hans Christian Andersen, ‘The Angel’; Henry Wadsworth Longfellow, ‘The Open Window’: see http://www.litscape.com/themes/life_and_death/Death_Of_Child_Poetry.html. 271 See, eg, Barbara Crooker, ‘The Lost Children’ (Heyek Press, 1989); Pearl Eyetinge, ‘A Silent House’, in Wendy Simonds and Barbara Katz Rothman, Centuries of Solace: Expressions of Maternal Grief in Popular Literature (Temple University Press, 1992): Amy J Catalano, A Global History of Child Death (Peter Land AG) 120-1. For a review of a number of examples of consolation literature from the twentieth century, see Wendy Simonds and Barbara Katz Rothman, Centuries of Solace: Expressions of Maternal Grief in Popular Literature (Temple University Press, 1992). Two examples of grief literature were referred to by Evatt J in Chester v The Council of the Municipality of Waverley (1939) 62 CLR 1, 17, 18. These were William Blake’s poem ‘The Little Girl Found’ published in his 1794 collection of poetry entitled Songs of Innocence and of Experience, and Such is Life, the fictional diary of Tom Collins written in 1897 by Joseph Furphy. This is discussed further below at section 6.2.2.
176
Hambrook. These articles tell of numerous deaths of children and the unbounded grief of their parents, not uncommonly resulting in lasting mental disorders.272
Considering this evidence in combination, there appears to be a reasonable basis to argue that whilst expressions of grief have varied with time and place, the understanding that the terrible grief of losing a child is of a torturous nature and capable of causing lasting mental anguish has been a continuous theme in human society from the time of antiquity. Consequently, as far as this thesis is concerned, this evidence provides a basis to argue that the pain of the loss of a child was commonly understood at the time of Mrs Hambrook’s accident to carry with it the risk of causing significant grief with the potential to result in a mental disorder to the grieving parent.
5.5.2 Corrective justice analysis of Hambrook
As in Dulieu, the court’s decision in Hambrook to extend the ambit of liability – this time to include claimants who suffered psychiatric injury as a result of fear of injury or death to a child – was significant. Again, the choice had to be made between conflicting lines of non-binding authority. The choice by the court in Hambrook to regard the applicable legal principles to be those based on a broader conception of what justice required in the case before them is explicable in terms of the corrective justice approach advanced in Part II. If it is accepted that the risk of psychiatric injury to the claimant was appreciable at a community understandings level, this approach can explain why justice between these two parties required that liability be
272 Bendigo Independent, ‘Very Youthful Sportsmen. Brothers of Twelve and Six. The Younger Shot Dead’, 21 May 1900, 6; Bunyip, Town Tattle. A Sad Trial’, 4 August 1905, 2; Northern Star, ‘James Connors’ Death’, 23 October 1907, 4; South Coast Times and Wollongong Argus, ‘The Kembla Disaster’, 1 August 1908, 8; Illawarra Mercury, ‘In Memorium. The Kembla Disaster’, 31 July 1908, 5; Mornington and Dromana Standard, ‘In Memorium’, 28 November 1908, 2; Darling Downs Gazette, ‘Fatal Case of Tetanus’, 26 August 1909, 5; Daily News, ‘The Victim’s Parents. Receiving the News’, 14 June 1910, 4; Daily News, ‘Woodlupine Murder’, 18 May 1911, 10; Horsham Times, ‘Obituary’, 14 May 1912, 5; Daily Telegraph, ‘Tramway Fatality’, 22 March 1913, 10; Mudgee Guardian and North-Western Representative, ‘Death of a Child at Home Rule’, 20 February 1913; Sun, ‘Sad Fatality. Kalgoorlie Boy Killed. On Fingall Gold Mine’, 13 December 1914, 8; Northern Champion, ‘The Value of a Life’, 7 June 1916, 3; Warracknabeal Herald, ‘Obituary’, 1 May 1917, 4; Northern Star, ‘Shocking Accident’, 15 February 1917, 8; Week, ‘Sydney Family. Tragic Death of Two Members’, 8 March 1929, 11; Maryborough Chronicle, Wide Bay and Burnett Advertiser, ‘Alma. In Loving Memory of Little Alma Williams of Doolbe’, 20 April 1922; Armidale Chronicle, ‘A Sad Death’, 24 January 1923, 4.
177 found, notwithstanding that Mrs Hambrook suffered psychiatric injury as a result of fear of injury or death to her child rather than as a result of fear of injury or death to herself.
If it is accepted that the risk of psychiatric injury to the claimant was appreciable at a community understandings level at the time, it was appropriate to find the defendant morally and legally responsible for causing Mrs Hambrook’s psychiatric injury. As such, if the law required claimants suffering physical injuries which were well-understood by the general community to be causally related to particular actions or events to be compensated, it should also require the claimant in Dulieu to be compensated in order to treat like cases alike. As a result of the expansion of common understandings of the causes of mental disorders – and an increased common appreciation of the risks of threats particularly to psychiatric wellbeing – there was arguably a further expansion of the right to physical and psychological integrity by the time of Hambrook. This expansion was appropriate from the perspective of corrective justice as to require more of defendants by this time was appropriate in order to maintain the pre-existing normative equality between the parties. As such, there was good fit between the corrective justice approach based on common understandings and the expansion of liability in Hambrook.
Furthermore, taking prevailing understandings into consideration it can be argued that Kennedy J’s limitation on liability in Dulieu was not principled as it was not relevant in any way to whether the defendant was able to appreciate the risk of psychiatric harm to the claimant. The rule in this form limits the extent to which the law recognises the claimant’s right to physical and psychological integrity in a way which has no connection to the relationship of risk between the parties. Furthermore, being irrelevant to the question of whether the risk of harm was commonly appreciable, Kennedy J’s limitation is irrelevant to the question of whether the defendant was morally responsible for causing the claimant’s injury and arbitrary and unjust in application.
Kennedy J’s limitation is potentially under-inclusive where psychiatric injury is caused by negligent injury to a third party in circumstances where the risk of such injury was appreciable at a community understandings level. In such cases, the claimant’s action will be denied, regardless of whether it is meritorious from the perspective of corrective justice. Being an arbitrary and unjust rule, it is also potentially over-inclusive in other circumstances. For example, satisfaction of Kennedy J’s limitation may influence a finding of liability
178 notwithstanding that in the circumstances, psychiatric injury to the claimant may not have been appreciable at a community understandings level. Consider the hypothetical example of a claimant who suffers psychiatric injury as a result of fear for their own safety, but in circumstances where this is very unusual and not able to be predicted by experts or by the general public. In cases where the risk of harm is not appreciable at a community understandings level, it cannot be concluded from the perspective of corrective justice that the claim has merit except where the defendant has particular knowledge that his actions could cause psychiatric injury to the claimant. Notwithstanding this lack of merit, satisfaction of Kennedy J’s rule may influence a finding of liability.
As well as having a good fit with corrective justice and being principled and morally justifiable, the abandonment of Kennedy J’s limitation on liability by the majority of Bankes and Atkin LJJ was also motivated by matters relevant to corrective justice, being underpinned by a deeper conception of what justice between the parties required. Neither Bankes LJ nor Atkin LJ found there to be sufficient legal authority to support Kennedy J’s limitation. Bankes LJ regarded the facts of Smith v Johnson & Co273 – on which Kennedy J’s limitation was based – as being too dissimilar to the facts in Hambrook to be applicable.274 Atkin LJ took a similar position.275 However, importantly, Bankes and Atkin LJJ both did not regard Kennedy J’s limitation as being good law on grounds of principle.276
In testing whether Kennedy J’s limitation in Dulieu was good law, Bankes LJ considered it appropriate to consider the principle on which the rule was based. Based on the comments of Lord Wenslydale in Lynch v Knight,277 his Honour considered the relevant principle to be concerned primarily with the extent to which the defendant could appreciate the risk of psychiatric harm to the claimant, stating that: ‘what a man ought to have anticipated is material when considering the extent of his duty’.278 Applying this principle to the facts in Hambrook, Bankes LJ found that the defendant ought to have anticipated that someone in Mrs Hambrook’s position might be terrified through fear of immediate injury to herself that she would suffer a
273 (1897) cited in [1897] 2 QB 61. 274 [1924] All ER 110, 112. 275 Ibid 115-6. 276 Ibid 113 (Bankes LJ), 116 (Atkin LJ). 277 (1861) 9 HL Cas 577, 600. 278 [1924] All ER 110, 113.
179 shock leading to physical injury.279 Having found this, his Honour found that no principled distinction could be drawn between a claimant suffering psychiatric injury from fear of immediate personal injury to oneself and a claimant suffering such injury from fear of such injury to one’s child. Using language thick with moral condemnation for such a distinction, Bankes LJ stated:
Assume two mothers crossing this street at the same time when this lorry comes thundering down, each holding a small child by the hand. One mother is courageous and devoted to her child. She is terrified, but thinks only of the damage to the child, and not at all about herself. The other woman is timid and lacking in the motherly instinct. She is also terrified, but thinks only of the damage to herself and not at all about her child. The health of both mothers is seriously affected by the mental shock occasioned by the fright. Can any real distinction be drawn between the two cases? Will the law recognise a cause of action in the case of the less deserving mother, and none in the case of the more deserving one? Does the law say that the defendant ought reasonably to have anticipated the non-natural feeling of the timid mother, and not the natural feeling of the courageous mother? I think not.280
Bankes LJ was of the view that claimants would be no less deserving – perhaps even more so – where their psychiatric injury was caused by fear of injury to their children rather than from fear of injury to themselves, which was already compensable pursuant to Dulieu. Atkin LJ used similar language in considering Kennedy J’s limitation, stating:
It would result in a state of the law in which a mother, shocked by her child being killed before her eyes, could not, and in which a mother traversing the highway with a child in her arms could recover, if shocked by fright for herself, while if she could be cross-examined into an admission that the fright was really for her child, she could not.281
In Atkin LJ’s view, ‘such distinctions would be discreditable to any system of jurisprudence in which they formed part.’282 Accordingly, both Bankes and Atkin LJJ’s extensions of the ambit of liability can be understood as principled.
279 Ibid. 280 Ibid. 281 Ibid 116. 282 Ibid.
180
Whilst both Bankes and Atkin LJ took a principled approach to whether Kennedy J’s limitation was good law, the same cannot be of the position Bankes LJ took with respect to whether liability ought to be extended to unrelated third party bystanders. Having rejected Kennedy J’s rule as being unprincipled, their Honours were required to consider this issue as a matter of logic. Atkin LJ took a more expansive view than Bankes LJ in this regard, finding that in principle there was no reason to exclude claimants who suffered psychiatric injury as a result of apprehension or actual sight of injury to third parties.283 His Honour stated:
There may well be cases where the sight of suffering will directly and immediately physically shock the most indurate heart; and if the suffering of another be the result of an act wrongful to the spectator, I do not see why the wrongdoer should escape.284
In addressing the possibility of a rise in the number of claims as a result of this finding, Atkin LJ stated this was not particularly a concern as such fears were likely exaggerated. Atkin LJ stated that in any event he would be sorry to adopt a rule which would deny liability in meritorious cases.285 On the other hand, Bankes LJ sought to confine the application of his decision. His Honour found that it applied only ‘to cases where the facts are indistinguishable in principle from the facts of the present case’ and that in the present case, he was deciding merely that the plaintiff could establish a cause of action if he proved that the shock suffered by his wife:
resulted from what the plaintiff’s wife either saw or realised by her own unaided senses, and not from something which someone told her; and that the shock was due to a reasonable fear of immediate personal injury to either herself or to her children.286
Whilst Atkin LJ’s treatment of the potential question of unrelated third party bystanders was principled, the same cannot be said of Bankes LJ’s treatment of this issue. Atkin LJ used the same principle he used to extend liability to Mrs Hambrook to underpin his statement (in obiter) that liability should extend logically to unrelated third party bystanders. By comparison, Bankes LJ’s approach introduced two further considerations, both of which were unrelated to
283 Ibid 117. 284 Ibid. 285 Ibid 116-7. Atkin LJ here referred to Kennedy J’s comments in Dulieu in relation to his consideration of the requirement for impact. 286 Ibid 113-4.
181 the question of whether the defendant could appreciate the risk of harm to the claimant. These considerations – that what the claimant witnessed must have been through their own unaided senses, and that there could not be liability when injury was suffered as a result of what someone had been told – would later be used to make arbitrary and capricious distinctions between claimants.287
5.6 Conclusion
There are at least two important ramifications which flow from the analysis in this chapter. The first is that it can be argued that the gradual expansion of the ambit of liability seen in these early cases not only reflected the growth in medical understandings of the causes of psychiatric disorders, but also the reality that whilst the ordinary member of the general community may not have been well-versed on the scientific dimensions of the onset of trauma, the lay person was readily able to appreciate the risk of psychiatric injury as a result of the experiencing of specific traumatic stressors.288 The most important of these stressors were the experiencing of events which threatened the life of the individual or the lives of the individual’s children. This is significant, because it provides a basis upon which to argue that this expansion of liability can be understood on normative grounds. That is to say, the expansion of liability seen in these early cases can be understood to reflect the expanding Kantian right to physical and psychological integrity, this justifying a shift in the point at which the norm against injuring was set over this period of time.289 This provides an appropriate basis from which to conclude
287 These will be discussed below at section 6.2 in relation to Chester and at section 6.3 in relation to Bourhill. A further feature of Hambrook which was not consistent with corrective justice is Sargant LJ’s dissenting judgment. Unlike Bankes and Atkin LJJ, Sargant LJ found Kennedy J’s limitation to be good law, stating that to find otherwise would be to extend the duty of users of the highway in a manner which was considerable and unwarranted. As there was no evidence of this presented to the jury, Sargant LJ dismissed the claimant’s appeal. The basis for this decision was Sargant LJ’s fears of indeterminate liability and of the floodgates opening. Sargant LJ stated:
It seems to me that, when once the requirement is relaxed that the shock is to be one caused by the plaintiff’s apprehension of damage to himself, the defendant is exposed to a liability for a consequence which is only reached by a new and quite unusual link in the chain of causation, and which cannot therefore properly be held to have been within his ordinary and reasonable expectation: ibid 119.
288 This was foreshadowed above at section 4.4 and demonstrated in the present chapter in relation to Dulieu at section 5.3.2 and to Hambrook at section 5.4.2. 289 This supports the largely theoretical argument presented in section 4.3.3.
182 that the expansions of the ambit of liability in these early cases can be understood from the perspective of the corrective justice approach advanced in Part II.290
The second ramification of the analysis in this chapter relates to the potential benefits of the corrective justice approach based on common understandings in comparison to the approaches adopted in the cases analysed. For example, the approach advanced in Part II291 provides a principled justification for the expansions of liability seen in both Dulieu292 and Hambrook.293 However, this approach also suggests a principled limitation on the ambit of liability, itself justified by the nature of the cause of action itself which ameliorates the potential risk of indeterminate liability and arguably negates the need for further control mechanisms. By limiting liability to only those cases where the risk of psychiatric injury was commonly appreciable (save where the claimant possesses special knowledge), liability is prevented, as a matter of logic, from becoming indeterminate.294
In Coultas, application of the corrective justice approach based on common understandings would likely have indicated a finding of liability in the absence of impact. However, a finding that impact was not necessary to establish that the claimant’s damages were not too remote would not have resulted in the law becoming indeterminate. This is because being based on the ability of the ordinary person at the time to appreciate the risk of injury, liability would likely have been limited to those cases involving specific traumatic experiences involving the experiencing of terror, such as train accidents in which the individual concerned feared they would be killed or severely injured.
Similarly, the limitations introduced by Kennedy and Phillimore JJ in Dulieu were not normatively justified as the risk of psychiatric injury to third parties as a result of exposure to trauma was commonly appreciable.295 The rejection of the impact rule untied the connection between the parties in time and space, and seemed to open the possibility as a matter of logic
290 Given this conclusion, it can be argued that the analysis in this chapter supports the second primary hypothesis of this thesis – outlined in section 1.4 – that Weinrib’s and Beever’s corrective theories provide a good basis for understanding and explaining the leading cases in this area of law. 291 Outlined in section 4.4. 292 Demonstrated at section 5.3.2. 293 Demonstrated at section 5.4.2 294 This argument was initially presented in section 4.4. 295 See above at section 5.4.2.
183 that liability may be indeterminate as a result. Such fears certainly lay behind Kennedy J’s reasons for suggesting that liability was limited to psychiatric injury caused by fear of injury or death to oneself.296 By contrast, liability would not have become indeterminate according to the approach advanced in Part II. At the time of Coultas, liability according to the corrective justice approach based on common understandings would likely have been limited to those cases involving the experiencing of terror in an accident where the individual feared for their life. Being reflective of the defendant’s moral responsibility for causing the claimant’s harm, this approach suggested a principled limit on liability which was grounded in the same reasons justifying the basis of the cause of action itself. As such, the ambit of liability extended only so far as was justified as a matter of principle.297
The same can be argued in relation to the finding in Hambrook that liability should extend to psychiatric injury caused by fear of injury or death to one’s child. By extending the ambit of liability in the way done by the court in Hambrook, the question was raised – as a matter of logic – as to whether liability ought to eventually be extended to loved ones, friends, acquaintances, and eventually to strangers. If not extended in such a way, it might have suggested an arbitrary limit would eventually need to be set at some point, lest liability be limitless.298 Again, rather than resulting in potentially limitless liability, the principled and pragmatic approach would have set a limit on liability which focussed on the moral culpability of the defendant rather than on the details of how psychiatric harm might have been suffered at a particular point in time.
The risk of psychiatric injury to a person as a result of the loss of a child had been readily appreciable to ordinary members of the community throughout society for many hundreds of years. As such the extension of liability to include claimants who had suffered psychiatric injury due to the death of a child was principled. However, this also did not necessarily mean that there was a risk that liability would become indeterminate as a result of this extension. This is because the evidence regarding the ability of the ordinary member of the community to appreciate the risk of psychiatric injury as a result of trauma indicated that the risk related
296 Ibid. 297 See the discussion of the normative basis for the community understandings test in section 4.4. 298 Notice here the common pattern, that is, a choice between arbitrary limits on the one hand, or limitless liability on the other.
184 specifically to the loss of a child, a quite specific event.299 By comparison, where a death due to accident involved a stranger, common understandings indicated that there was an appreciable risk of psychiatric injury only when the accident in question was directly witnessed in some way.
This is a crucial point because it demonstrates that the corrective approach based on common understandings advanced in Part II does not require separate justifications for expansion of the law on the one hand, and limitations of the law to ensure liability does not become unmanageable, on the other.300 This was what occurred in both Dulieu and Hambrook. The rejection in Dulieu of the relevance of impact and the rejection in Hambrook of Kennedy J’s limitation in Dulieu that liability must be the result of a fear of immediate death or injury to oneself, each seemed to suggest to the court that if left unchecked the ambit of liability might expand further than would be manageable. Without a sure theoretical foundation upon which to base their expansions of the ambit of liability, the judges in these cases were left to develop a range of unjust rules to limit the effect of this expansion lest the law become unmanageable as a result of their findings. Ultimately, many of these limiting rules were revealed to be arbitrary and to make unjust distinctions between claimants.301
The corrective justice approach advanced in Part II would have been more appropriately adapted to doing corrective justice between the parties than each of the rules applied in the cases analysed in this chapter. That is because this approach focusses on the core matter of significance between the parties from the standpoint of interpersonal morality, rather than on how particular understandings might express themselves at a particular point in time. As such, rather than remaining static in time, this approach is flexible, changing the point at which the normative equality between the parties is set as common understandings develop. As a matter
299 This being reflective of common understandings of the causes of mental disorders at the time of Hambrook: see section 5.5.1. 300 Thus, there is good reason to argue that the community understandings approach is morally justifiable and consequently imbued with normative force: see the discussion above in chapter 2 regarding the importance of coherence and normativity in relation to Beever’s theory. 301 This will be considered further in chapter 6 in the analysis of Chester v The Council of the Municipality of Waverley (1939) 62 CLR 1 and Bourhill v Young [1942] 2 All ER 396, chapter 7 in the analysis of Jaensch v Coffey (1984) 155 CLR 549, and chapter 8 in the analysis of Annetts v Australian Stations (2002) 211 CLR 317, and Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.
185 of logic the test accordingly will always set this point as a matter of interpersonal morality between the parties, changing as the morality of the parties’ interactions changes.302
This chapter has addressed the second primary hypothesis in this thesis by considering the question of whether the corrective justice approach based on common understandings provides a suitable basis for understanding the law of negligence relating to psychiatric injury. The analysis in this chapter of three of the early leading cases has demonstrated that this approach is able to explain the expansions of liability seen in both Dulieu and Hambrook on the basis that these developments in the law reflected the state of common understandings of the risk of mental disorders as a result of exposure to trauma at the time of each case. Moreover, it has been contended in this chapter that application of the common understandings test in each of these cases may well have negated the risk of indeterminate liability as a result of these expansions of the ambit of liability, thereby making identification and application of arbitrary limits of liability unnecessary.
It would be another 15 years before the legal principles relevant to negligently inflicted psychiatric injury would again be considered by an appeal court in Australia or England. In the following chapter, two cases occurring only a few years apart – Chester v The Council of the Municipality of Waverley303 and Hay or Bourhill v Young304 – are considered. These cases would again test the relevant legal principles, this time in relation to what claimants were required to perceive of an accident involving another.
302 See the discussion presented in section 4.3.3 regarding the point at which the norm against injuring is set according to Beever’s theory. 303 (1939) 62 CLR 1. 304 [1942] 2 All ER 396.
186
Chapter 6: Analysis of Leading Common Law Cases: Chester and Bourhill – Two Cases of Corrective (In)Justice
6.1 Introduction
Chester v The Council of the Municipality of Waverley1 and Hay or Bourhill v Young2 occurred within a close period of time – 1939 and 1942 – and as such, they shared a common context in terms of prevailing understandings of the causes of mental disorders. In both cases, the courts were concerned with what particular phenomena the claimant was required to perceive when they suffered psychiatric injury as a consequence of the death of a third party. However, both cases involved very different situations. The first, Chester, was a claim arising out of the death of someone with the closest bonds of love and affection with the claimant, a child. The second, Bourhill, involved the death of a complete stranger.
Having extended the ambit of liability to include cases involving psychiatric injury caused by injury or death to a third person, Hambrook left open the questions of what the claimant was required to perceive, particularly whether this included perceiving the actual death of the third party, and whether the nature of the relationship between the claimant and person killed affected what the claimant was required to perceive at law.3 In Chester, an Australian case, the differences in the positions taken by Bankes LJ and by Atkin LJ in Hambrook would be the focus of the enquiry in relation to the question of what the claimant was actually required to perceive. Of particular importance to the High Court was the fact that although the claimant witnessed her child’s body being recovered by rescuers, she did not actually witness his death by drowning.4 In Bourhill, a Scottish case heard on appeal in the House of Lords, the focus was on what the claimant was required to perceive of an accident involving a complete stranger, given that she heard but did not see the moment of the accident itself.5
1 (1939) 62 CLR 1 (‘Chester’). 2 [1942] 2 All ER 396 (‘Bourhill’). 3 See section 5.5. 4 This is discussed below at section 6.2. 5 Discussed below at section 6.3.
187
This chapter continues the analysis of leading cases, commencing with analysis of Chester and then with Bourhill. It will be contended that the analysis of these cases supports the argument that unlike the early psychiatric injury cases considered in the previous chapter, there was little in Chester and Bourhill which was explicable in terms of the approach advanced in Part II save for one remarkable exception – Evatt J’s dissenting judgment in Chester.
6.2 Chester v The Council of the Municipality of Waverley (1939) 6
The claimant in this case suffered psychiatric injury as a result of the trauma of frantically searching for her missing seven and a half year old son and then witnessing his lifeless body being taken out of a water-filled trench. The defendant controlled the area of road where the drowning occurred, and through its servants had caused the trench to be dug. The defendant’s servants placed a railing which the court found was not adequate to prevent children from accessing it. The trench became filled with water due to rain, and the claimant’s son subsequently fell into it. A majority of the High Court of Australia found that psychiatric injury to the claimant was not reasonably foreseeable as she had not directly witnessed his drowning.7 This was despite the claimant witnessing her son’s body being recovered from the trench.
By the time of Chester the law of negligence had been altered dramatically by virtue of the case of Donoghue v Stevenson8 in which Lord Atkin supported Brett MR’s notion of a general principle of negligence, holding that a duty was owed to all in relation to whom one was in a relationship as ‘neighbour’.9 Lord Atkin’s ‘neighbour’ test was a general test of reasonable foreseeability, which was reflected in the High Court’s decision in Chester.10 There was a stark divide in Chester between the judgments of those in the majority –Latham CJ, Rich and Starke JJ – and the judgment of Evatt J in dissent. Consequently, Chester is doctrinally significant for two particular reasons. The first is the decision of the majority that psychiatric injury was not reasonably foreseeable as the claimant had not directly perceived the actual moment of the
6 (1939) 62 CLR 1. 7 Chester v The Council of the Municipality of Waverley (1939) 62 CLR 1, 10 (Latham CJ), 11 (Rich J), 13-4 (Starke J). 8 [1932] AC 562. 9 Ibid 582. 10 This more general conception of negligence had been previously recognised in Australia in Grant v Australian Knitting Mills Ltd [1936] AC 85 (PC).
188 death of her child.11 The second is Evatt J’s finding that the test of reasonable foreseeability did not require the claimant to show that he or she had witnessed any particular phenomenon.12
There was some indication from cases in the United States of America as to how the court might treat claims involving fear of death of child due to the negligence of another. The Maryland Court of Appeals in Bowman v Williams13 allowed the claim of a father who suffered psychiatric injury as a result of fearing for his two young sons after seeing a truck crash into his house. Following Atkin LJ’s judgment in Hambrook that contemporaneous physical injury was not required, Parke J found for the claimant on the basis that he had suffered psychiatric injury as a result of apprehension of injury to himself and to his children.14 However, this finding was based in part upon the claimant himself being in physical danger at the relevant time.15 However, two years later in Waube v Warrington,16 the Wisconsin Supreme Court denied the claim of a parent in a similar situation to the claimant in Bowman. The claimant in Waube suffered psychiatric injury as a result of witnessing – through a window in her home – her child being struck and killed by the defendant’s motor vehicle.
Another case involving an accident in England in 1937 also raised the issue of what a claimant was required to perceive in cases involving psychiatric injury. In Owens v Liverpool Corporation,17 the English Court of Appeal considered the claims of four members of the same family who all suffered psychiatric injury due to the defendant’s servant’s negligence. They were following a hearse containing a coffin within which was their deceased relative. The defendant's servant was driving a tram and negligently caused an accident with the hearse. As a result of the accident, the glass on the hearse was broken, the coffin was overturned and appeared to be at risk of spilling onto the street. One of claimants saw the accident, and the others saw the result of it immediately after it occurred. MacKinnon LJ, delivering the judgment of the court,18 found that liability existed in the wider sense as had been indicated by
11 Ibid 10 (Latham CJ), 11 (Rich J), 13, 14 (Starke J). 12 Ibid 23. 13 (1933) 164 Md 397. 14 Ibid 402. For further discussion of this point see Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 111-2. 15 (1933) 164 Md 397, 403. 16 (1935) 216 Wis 603. 17 [1938] 4 All ER 727. 18 Made up of MacKinnon, Goddard, and du Parcq LJJ.
189
Atkin LJ in Hambrook.19 In relation to the defendants’ claim that there could be no liability where the claimant’s psychiatric injury resulted from witnessing an accident involving an inanimate object, MacKinnon LJ found that on principle, claims were limited only to those involving fear for human safety.20
Perhaps the most significant development in the general law of negligence occurred a year before Bowman. Whilst not being directly related to claims of negligently inflicted psychiatric injury, this development nonetheless had important ramifications for the High Court in Chester. This was the seminal case of Donoghue v Stevenson21 in which Lord Atkin proposed a general conception of the duty of care based on the notion of reasonable foreseeability. Prior to Donoghue, a duty of care in negligence was found in novel cases only where analogy could be made with existing categories. The importance of Lord Atkin’s famous judgment was that it proposed a general principle which subsequently united these seemingly separate categories under a broader conception of the law of negligence. This development in the law is particularly important in relation to this thesis, as it is Beever’s contention that Lord Atkin’s test of reasonable foreseeability – incorporating the principle of a neighbour at law – is an outstanding example of the notion of principle underpinning his conception of corrective justice.22
As a result of the decision in Donoghue, the High Court in Chester did not automatically find that a duty of care was owed to the claimant as a user of the highway, instead determining the issue by considering whether psychiatric injury to her was reasonably foreseeable in the circumstances. However, the decision in Chester, whilst couched in language consistent with Lord Atkin’s famous judgment, arguably did not reflect his neighbour principle.23
The High Court in Chester also had Hambrook to rely on as a relevant authority. Being a decision of an English court the decision in Hambrook did not bind the High Court in Chester. However, as perhaps the most relevant legal authority, it nonetheless provided significant guidance. Because there was a divide between Bankes and Atkin LJJ in Hambrook on the question of how far liability ought to extend, with the views of each in this regard being in obiter, ultimately there was no clear legal path which could be followed by the High Court in
19 Ibid 730. 20 Ibid. 21 [1932] AC 562 (‘Donoghue’). This case is discussed above in chapters 2 and 4. 22 See chapters 2 and 4. 23 See, eg, Butler, Damages for Psychiatric Injuries (Federation Press, 2004) 42-3.
190
Chester to decide the case before them as a matter of deductive logic. The court in Chester accordingly had to make a choice as to whether it should follow the wider view of liability advanced by Atkin LJ in Hambrook, or the narrower view advanced by Bankes LJ which incorporated a requirement that claimants witness the accident with their own unaided senses. The decision of the majority in Chester to impose further arbitrary limits on liability has been described as a triumph of the ‘judicial obsession with setting the limits of the defendants’ liability for nervous shock.’24 The majority’s decision is perhaps explicable on the basis that the Donoghue test of reasonable foreseeability at the time was treated by judges simply as a test of perception and as such was open to the influence of matters unrelated to the cause of action.25
Important to the decision of the majority was whether the negligence of the defendant was in some way completed before the claimant actually suffered psychiatric injury, such that it could be concluded that the claimant’s injury was outside of the realm of reasonably foreseeable harm. It appeared that the logical application of Owens would result in liability not being confined to circumstances where claimants witnessed particular phenomena. However, Latham CJ distinguished Owens on the basis that it applied only to cases in which a duty and breach of duty had already been found,26 whilst Starke J only mentioned the case obliquely in passing,27 and Rich J ignored it completely.28 Only Evatt J in dissent treated Owens as applicable in Chester, finding that the logical result of this case was that liability could not be confined in such a way.29
24 Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 144. 25 Des Butler, Damages for Psychiatric Injuries (Federation Press, 2004) 42-3; Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 77. This may have particularly been the case because of the possible perception that liability ought to be reined in because of the potential for liability to be too wide because of the approach to remoteness at the time being the test of directness. This possibility was recognised by Jordan CJ in Bunyon v Jordan (1936) 36 SR (NSW), 354: cited in Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 71. 26 Chester v The Council of the Municipal of Waverley (1939) 62 CLR 1, 8-10. 27 Ibid 13. 28 Ibid 10-2. 29 Ibid 36.
191
6.2.1 Prevailing understandings of the causes of psychiatric disorders
By modern medical understandings, the loss of a child in unexpected and distressing circumstances has been strongly linked to the onset of PTSD, as well as with depression, complicated grief syndrome, or anxiety disorders other than PTSD.30 It is also arguable that experts in 1939 would likely have been able to appreciate the risk of psychiatric injury to the claimant in these circumstances. The work of Cannon and Loewi had by this time shown the link between emotional regulation and the functioning of the autonomic nervous system as a response to trauma.31 In particular, Cannon had outlined the physiological processes underlying the ‘fight or flight’ response.32 Loewi had also noted the connection between the autonomic nervous system and the neuroendocrine system in the body’s responses to trauma.33 This research highlighted the close association between the experience of emotion and physiological processes, which could be understood as necessary survival mechanisms as the body prepared itself to fight or to flee in situations of intense trauma.34
Most importantly, it was Freud’s psychoanalytic theory that traumatic experience triggers psychological processes in individuals which was then the dominant theory in psychiatry.35
30 See Mardi J Horowitz, ‘Stress-Response Syndromes: A Review of Posttraumatic Stress and Adjustment Disorders’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 54; Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 240, citing JL Herman, Trauma and Recovery (Pandora, 1992) 15-6. 31 WB Cannon, Bodily Changes in Pain, Hunger, Fear and Rage: An Account of Recent researches into the Function of Emotional Excitement (D Appleton and Co, 2nd ed, 1929); O Loewi, ‘The Chemical Transmission of Nerve Action’ (1936) Nobel Lecture, cited in LA Stevens, Explorers of the Brain (Angus and Robertson, 1973): cited in Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 117. 32 WB Cannon, Bodily Changes in Pain, Hunger, Fear and Rage: An Account of Recent researches into the Function of Emotional Excitement (D Appleton and Co, 2nd ed, 1929). The first edition of this work was published in 1915. For further discussion of this point, see Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998). 33 O Loewi, ‘The Chemical Transmission of Nerve Action’ (1936) Nobel Lecture, cited in LA Stevens, Explorers of the Brain (Angus and Robertson, 1973). Also see Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 117. 34 Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 117-8. 35 S Freud, ‘Selected Papers on Hysteria’ (1920) 4 Nervous and Mental Diseases Monograph Series; G Mendelson, ‘The Concept of Post-Traumatic Stress Disorder: A Review’ (1987) 10 International Journal of Law and Psychiatry 45: cited in Danuta Mendelson, The Interfaces of
192
Notably, Freud’s and Abraham’s views on melancholia were particularly influential at the time.36 Crucially, Freud regarded the loss of a loved one as being aetiologically-associated with the onset of melancholia.37 According to Freud, the melancholic patient was considered to fall into ‘delusional self-accusations and self-aspersions’ as a result of this condition, which at the time was called ‘the delusion of moral inferiority’.38 The melancholic was also considered to the prone to narcissistic tendencies.39
It was during this period of time that researchers became aware of the part played by the autonomic nervous system in regulating many bodily functions, and of the functioning of the autonomic nervous system through the use of electrical messages.40 The relationship between the autonomic nervous system and emotion was noted by Cannon, who in 1929 outlined the physiological processes underlying the ‘fight or flight’ response.41 Loewi also noted the connection between the autonomic nervous system and the neuroendocrine system in the body’s response to trauma.42 This research highlighted the close association between the experience of emotion and physiological processes, which could be understood as necessary survival mechanisms as the body prepared itself to fight or to flee in situations of intense trauma.43 Speaking at a symposium in 1933 organised by the Medico-Legal Society of Great
Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 116. 36 See Abraham, ‘Notes on the Psycho-Analytical Investigation and Treatment of Manicdepressive Insanity and Allied Conditions’ in Selected Papers on Psycho-Analysis (Hogarth Press, 1911); S Freud, ‘Mourning and Melancholia’ in Collected Papers Vol IV (Hogarth Press, 1916); S Freud, The Ego and the Id (Hogarth Press, 1923); Abraham, ‘A Short Study of the Development of the Libido, viewed in the Light of Mental Disorders’ in Selected Papers on Psycho-Analysis (Hogarth Press, 1924): cited in Sándor Radó, ‘The Problem of Melancholia’ (1928) 9 International Journal of Psycho-Analysis 420, 420. 37 See the discussion above at section 5.5.1. 38 Sándor Radó, ‘The Problem of Melancholia’ (1928) 9 International Journal of Psycho-Analysis 420, 421. 39 Ibid. 40 Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 116. 41 WB Cannon, Bodily Changes in Pain, Hunger, Fear and Rage: An Account of Recent researches into the Function of Emotional Excitement (D Appleton and Co, 2nd ed, 1929): cited in Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 117. The first edition of this work was published in 1915. 42 O Loewi, ‘The Chemical Transmission of Nerve Action’ (1936) Nobel Lecture, cited in LA Stevens, Explorers of the Brain (Angus and Robertson, 1973): cited in Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 117. 43 Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 117-8.
193
Britain into emotional shock in relation to the law, Earengey argued that due to scientific understanding of the biological origins of psychological phenomena suffered as a result of exposure to trauma, the legal distinction between purely mental harm on the one hand and mental and physical harm on the other, ought to be discarded.44
With regard to common understandings at the time, it has already been argued that the death of a child in unexpected and tragic circumstances has long been associated with the onset of mental suffering.45 There are a number of other pieces of evidence which shed further light on common understandings at the time of Chester. The first of these is that there were numerous newspaper articles concerning the subject of terrible parental grief and resulting mental disorders following the death of a child which appeared in the Australian newspapers in between the time of Hambrook and Chester.46 These articles tell of terrible tragedies befalling families, and of the parents’ struggles to cope with the emotional burden which has been caused by their terrible losses. These articles appear to provide a reasonable basis to argue that an ordinary member of the community during this time who was familiar with the print news of the day may well have been aware of the link between the loss of a child and parental grief leading to prolonged mental suffering.
44 WG Earengey, ‘The Legal Consequences of Shock’ (1934) 2(1) The Medico-Legal and Criminological Review 14: cited in Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 124-5. 45 See the discussion above at section 5.5.1. 46 See, eg, West Gippsland Gazette, ‘Mystic Sense in Nature’, 19 May 1925, 2; Brisbane Courier, ‘Babes in the Wood’, 16 April 1926, 6; Sun, ‘Parents’ Grief. Tragedy of Poolamacca Station. Father’s Story’, 31 December 1926, 7; Richmond River Express and Casino Kyogle Advertiser, ‘Parents’ Grief. Tragedy of Poolamacca Station. The Father’s Story’, 3 January 1927; Observer, ‘A Sad Accident’, 10 December 1927, 39; Daily Examiner, ‘Shotgun. Found in Waterhole. Williamtown Murder. Two Men Charged’, 19 June 1928, 4; Register, ‘Bunderberg and Preventive Medicine’, 31 January 1928, 8; Maryborough Chronicle, Wide Bay and Burnett Advertiser, ‘Trapped in Flames. Four Children Burned. Pitiful Station Fatality. Parents Grief- Stricken’, 19 December 1929; Evening News, ‘Parents’ Grief. Baby Sisters Killed. Driver’s Version’, 24 January 1929, 14; Daily Advertiser, ‘Missing Child. Death From Exposure’, 2 June 1932, 1; National Advocate, ‘Child’s Tragic Death. Diptheria Cases at Dubbo’, 10 June 1933, 5; Age, ‘the Right of the Road. Children and Motor Accidents. Parents’ Grief and Anxiety’, 1 October 1935, 11; Daily Examiner, ‘Child’s Death. Remarkable Story. Tragedy at Perth. Father Charged With Murder’, 29 September 1936, 5; West Australian, ‘Child in Convulsions. Coogee Tragedy’, 10 December 1937, 6; Armidale Express and New England General Advertiser, ‘Brother Succumbs. Parents Brief Stricken’, 11 May 1938; Weekly Times, ‘Touching Memorial of Avoca. A Mother’s Love That is Carved in Stone’, 1 July 1939, 9.
194
The second important piece of evidence concerning common understandings relates to events surrounding the enactment of the Wrongs Act Amendment Act 1939 (SA) by the South Australian parliament and the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) by the New South Wales parliament, which together lend support to the argument that the general public would likely have been aware not only of the risk of mental suffering and grief following the unexpected and distressing death of a child, but also of the risk of mental disorder as a result of this.47 More than 30 years after Chester, Lord Bridge in McLoughlin v O’Brian48 wondered whether the enactment of the New South Wales legislation was in response to the perceived injustice of the finding in Chester:
to enable the parent, husband or wife of a person ‘killed, injured or put in peril’ by another’s negligence to recover damages for ‘mental or nervous shock’ irrespective of any special or temporal relationship to the accident in which the death, injury or peril occurred.49
These musings appear to have been well-founded. In Pham v Lawson,50 Lander J was of the view that s 28 of the South Australian Wrongs Act Amendment Act 1939 was drafted with a mind to overcoming the hurdles presented by the decision in Chester.51 The intention of the New South Wales legislation was also, amongst other things, to specifically overcome the
47 This argument was made at section 5.5.1 in relation to Hambrook. 48 [1982] 2 All ER 298. 49 Ibid at 317. 50 (1997) 68 SASR 124. 51 Ibid 138. Having said this, it might well be argued that Lander J was mistaken as to his assessment of the purpose of s 28 of the South Australian Act, as the discussions in parliament relating to this aspect of the Wrongs Act Amendment Bill merely refer to its purpose as being to overcome the potential legal hurdle posed by the Privy Council’s decision in Victorian Railways Commissioners v Coultas (1888) App Cas 222: see South Australian Parliamentary Debates, report of the Consolidated Bills Committee, Legislative Assembly, second reading speech, 8 August 1939, 464 (The Honourable R J Rudall); South Australian Parliamentary Debates, report of the Consolidated Bills Committee, Legislative Council, second reading speech, 28 September 1939, 1048 (The Honourable A L McEwin). Legislation was enacted in Victoria in 1932 with the intent of overcoming the hurdle of the requirement of contemporaneous physical injury potentially posed by the decision in Coultas (see Wrongs Act 1932 (Vic) s 4). This legislation, which allowed claims of injury arising from mental or nervous shock, was followed in South Australia in 1936 (Wrongs Act Amendment Act 1936 (SA) s 28(1)), in New South Wales in 1944 (Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 3(1)), in the Australian Capital Territory in 1955 (Law Reform (Miscellaneous Provisions) Ordinance 1955 (ACT) s 23), and in the Northern Territory in 1955 (Law Reform (Miscellaneous Provisions) Act 1955 (NT) s 24). For further discussion of this point, see Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 110.
195 direct perception limitations identified in this case.52 The legislation specifically extended the common law in New South Wales to allow liability for parents and spouses who suffered psychiatric injury due to the death, injury or putting in peril of their family member caused by the defendant’s negligence, regardless of whether there was direct perception of the particular accident.53
In his motion before the Legislative Assembly moving the Law Reform (Miscellaneous Provisions) Bill, the then Premier and Colonial Treasurer William McKell made it clear at the outset of his speech that in barring the claims of family members, the law had ceased to serve the needs of the community. The Premier stated:
This measure is an earnest of the Government’s resolve to review, and, where necessary, to revise legal principles which have outlived their usefulness and have ceased to serve the needs of society. The law should be the servant of the people, not their master; it should be moulded to serve the changing needs to society, not allowed to become and to remain a straitjacket.54
In his second reading speech before the parliament in relation to the Law Reform (Miscellaneous Provisions) Bill, the Premier stated: ‘The bill takes as its principle that the possibility of injury to relatives through shock should be foreseen, but not to the whole world’.55 The Premier was of the view that the amendments being proposed were not expanding the law beyond what was reflective of community norms, but instead were necessary in order that the law continue to reflect such norms. The measure moved he described as ‘liberal, but…not extravagant.’56 The Premier continued: ‘The measure has been framed to satisfy what is considered to be a real need. Our view is that a case such as Mrs Chester’s should be recognised, and the bill grants that recognition.’57 The provisions were argued to ‘free us from
52 See New South Wales Parliamentary Debates, Legislative Assembly, 18 November 1943 (second series, vol 173) 879-80 (Premier and Colonial Treasurer, William McKell). 53 Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 4. This legislation also extended the common law to include liability for other family members due to such an accident, although only where that accident occurred within the sight or hearing of those family members. 54 See New South Wales Parliamentary Debates, Legislative Assembly, (second series) vol 172, 18 November 1943, 879-80. 55 New South Wales Parliamentary Debates, Legislative Assembly, (second series) vol 172, 1 March 1944, 1432. 56 Ibid. 57 Ibid.
196 the fetters of the Victorian era, and … permit our courts to dispense justice in a direction which all will agree is deserving’.58
It is even more revealing in relation to prevailing understandings to consider the passage through the parliament of the New South Wales Law Reform (Miscellaneous Provisions) Bill 1944 leading up the enactment of the Law Reform (Miscellaneous Provisions) Act 1944 following the High Court’s decision in Chester.59 The Law Reform (Miscellaneous Provisions) Bill 1944 was originally presented in a different form in 1942, entitled the Law Reform (Torts) Bill. The bill in its original form was intended to overcome the decision in Chester, but was not ultimately considered by the Legislative Council in New South Wales. This was because the decision in Bourhill v Young60 three years after Chester caused the Legislative Assembly concern that if a requirement for claimants to be located within the area of potential danger – as indicated by the House of Lords in Bourhill61 – was to become part of the Australian law, claimants in Mrs Chester’s position would not be able to recover notwithstanding the bringing into law of the Law Reform (Torts) Bill.62 The Law Reform (Miscellaneous Provisions) Bill 1944 was subsequently introduced into parliament containing an additional clause63 which provided a cause of action for those who suffered psychiatric injury as a result of the death or injury of a relative.64
58 Ibid. 59 For further discussion regarding this series of events, see Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 89-98; Des Butler, ‘Nervous Shock at Common Law and Third Party Communications: Are Australian Nervous Shock Statutes at Risk of being Outflanked?’ (1996) 4(2) Torts Law Journal 120, 120-36. Although this relates to a period of time briefly after Chester, this is nonetheless powerful evidence of prevailing understandings in the same general period of time. 60 [1942] 2 All ER 396 (‘Bourhill’). 61 This case is considered below at section 6.3. 62 see Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 89-98; Des Butler, ‘Nervous Shock at Common Law and Third Party Communications: Are Australian Nervous Shock Statutes at Risk of being Outflanked?’ (1996) 4(2) Torts Law Journal 120, 120-36. 63 Clause 4. 64 The terms ‘relatives’ was defined by reference to the definition of the same term in the Compensation to Relatives Act. For further discussion, see Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 92.
197
The passage of this bill through the parliament was not straightforward. After passage through the Legislative Assembly, the bill met resistance in the Legislative Council, in which the opposition held a majority.65 The opposition in the Legislative Council moved an amendment to the bill based on concerns that in its original form, liability would be left too wide. This amendment restricted liability to only those claimants who had seen or heard the injury or death of a member of their family. In response to the proposed amendments, the Premier noted that claims such as those of Mrs Chester and Mrs Hambrook would consequently be denied in New South Wales.66 Government members in both the Legislative Assembly and the Legislative Council were very critical of the opposition amendments, describing them as being tailored to those in the insurance industry. In response to the proposed amendments to the bill, the Premier stated:
I wish to say…that in making these amendments to the bill the Upper House has done one of the most callous things that has ever been done by it. Certain of these amendments put back the clock. The Upper House has shown an utter disregard for humanitarian principles, and I cannot come to any other conclusion than that the Legislative Council, in inserting the amendments that they have in the bill, were actuated, not by principles of justice, not by principles of equity, but by the personal interests of some persons who were able to bring influence to bear with certain members of the Legislative Council.67
The Legislative Assembly once again attempted to pass the bill in its original form, and after again being rejected by the Legislative Council68 the government called a general election.69 The government subsequently sought a mandate from the electorate to pass the bill in its original form, and was re-elected.70 The government’s intentions regarding the bill were reported widely in the press in New South Wales throughout its passage through parliament.71
65 Ibid 93. 66 See New South Wales Parliamentary Debates, Legislative Assembly (second series) vol 172, 30 March 1944, 2253. 67 See New South Wales Parliamentary Debates, Legislative Assembly (second series) vol 172, 30 March 1944, 2253. 68 See New South Wales Parliamentary Debates, Legislative Assembly (second series) vol 173, 4 April 1944, 2305. 69 Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 92. 70 Ibid. 71 See Newcastle Sun, ‘Compensation for Shock’, 24 November 1942, 3; Barrier Miner, ‘Compensation for Nervous Shock?’, 17 December 1942, 1; Lithgow Mercury, ‘Compensation for Shock’, 17 December 1942, 1; Sun, ‘Damages for Shock’, 17 December 1942, 5; Sydney
198
Parliament generally seeks to reflect the will of the people and it is unlikely the New South Wales government would have embarked on the implementation of a policy which it did not believe reflected community sentiment. A bill perceived as unfair or unjust by the community would likely have been a thorn in the government’s side in the election.
It should be recognised that the views of the Premier and some of his colleagues in the government are not conclusive evidence of the views of the community. Indeed, some members of the New South Wales Parliament expressed opposition to the bill in the form proposed by McKell’s government, and it might well be argued that this does not support the view of common understandings presented.72 Having said this, it is noteworthy that none of those members of the Upper or Lower House of the New South Wales who made comments opposing the Law Reform (Miscellaneous Provisions) Bill 1944 stated that they did not believe that claimants in Mrs Chester’s position were deserving of compensation. Instead, the focus of concern about the bill for these members was variously concerns that liability would be unlimited if shock was the only form of injury required,73 concerns surrounding the potential
Morning Herald, ‘Damages for Nerve Shock’, 17 December 1942, 6; Tweed Daily, ‘Damages for Nervous Shock’, 17 December 1942, 1; Daily Advertiser, ‘Law Amendment. Damages for Nervous Shock’, 17 December 1942, 2; West Wyalong Advocate, ‘Damages for Nerve Shock’, 21 December 1942, 4; Narandera Argus and Riverina Advertiser, ‘Damages for Nervous Shock’, 22 December 1942, 1; St George Call, ‘Nervous Shock’, 1 January 1943, 1; National Advocate, ‘“Nervous Shock” Bill Provides Essential Public Safeguard’, 4 January 1943, 1; Cessnock Eagle and South Maitland Recorder, ‘“Nervous Shock” Bill Provides Essential Public Safeguard’, 5 January 1943, 4; Barrier Miner, ‘Proposed Nervous Shock Bill’, 5 January 1943, 2; Dubbo Liberal and Macquarie Advocate, ‘Nervous Shock Bill Provides Safeguard’, 5 January 1943, 2; Macleay Chronicle, ‘Nervous Shock Bill’, 6 January 1943, 3; Scrutineer and Berrima District Press, ‘“Nervous Shock” Bill Provides Essential Public Safeguard’, 6 January 1943, 2; Murrumburrah Signal and County of Harden Advocate, ‘“Nervous Shock” Bill Provides Essential Public Safeguard’, 7 January 1943; Western Grazier, ‘“Nervous Shock” Bill Provides Essential Public Safeguard, Says Premier’, 8 January 1943, 3; Braidwood Dispatch and Mining Journal, ‘“Nervous Shock” Bill Provides Essential Public Safeguard’, 8 January 1943, 3; Mirror, ‘Damages for Nervous Shock’, 9 January 1943, 3; Barrier Miner, ‘“Compo” for Shock’, 9 January 1943, 4; Kiama Independent, and Shoalhaven Advertiser, ‘Nervous Shock Bill. Public Safeguard’, 9 January 1943, 4; Newcastle Morning Herald and Miners’ Advocate, ‘Damages for Shock’, 11 January 1943, 4; Riverine Herald, ‘Compensation for Shock’, 13 January 1943, 6; Newcastle Morning Herald and Miners’ Advocate, ‘Permit Damages for Nervous Shock’, 12 October 1944, 3. 72 See, eg, the comments of the Honourable Member for Woollahra, Vernon Treatt, in the Legislative Assembly on 1 March 1944: New South Wales Parliamentary Debates, (second series) vol 172, 1435-6, as well as those of Captain The Honourable W G Bradley in the Legislative Council on 15 March 1944: New South Wales Parliamentary Debates, (second series) vol 173, 1703-5, and of the Honourable Sir Henry Manning in Legislative Council on 22 March 1944: New South Wales Parliamentary Debates, (second series) vol 173, 1858-60. 73 See New South Wales Parliamentary Debates, Legislative Assembly (second series) vol 173, 15 March 1944, 1703-5 (Captain The Honourable W G Bradley).
199 for false claims to be made by unscrupulous claimants,74 and fears that liability would be extended to include those claimants far removed from the accident in time and space.75
It is argued that the mandate of the electorate provided by the re-election of the New South Wales government to pass the bill in its original form – drafted specifically to allow claims such as that made by Mrs Chester – is powerful evidence that the general community recognised that claimants in Mrs Chester’s position were deserving of compensation.76 This evidence goes much further than the views of individual elected representatives, instead making a good case that the general policy of extending claims to those close family members who suffered psychiatric injury but did not see or hear the death of their loved one, was one which had wide community acceptance.
6.2.2 Corrective justice analysis of Chester
If it is accepted that the risk of psychiatric injury to a parent due to the death of their child in unexpected and distressing circumstances was appreciable at a community understandings level at the time of the accident, there is a reasonable basis upon which to argue that Mrs Chester possessed a right to physical and psychological integrity which extended to protect her from the harm she suffered regardless of whether she witnessed the precise moment of her son’s death. Such a right would have imposed a correlative duty on the defendants to refrain from injuring the claimant in this manner. Consequently, by deciding against the claimant, the judgments of those in the majority did not reflect the common experiences of ordinary people at the time.
At issue here is whether the majority’s decision based on an assessment of reasonable foreseeability was consistent with the corrective justice approach based on common
74 See, eg, New South Wales Parliamentary Debates, Legislative Assembly (second series) vol 173, 15 March 1944, 1704 (Captain The Honourable W G Bradley). 75 See, eg, New South Wales Parliamentary Debates, Legislative Council, (second series) vol 173, 22 March 1944, 1859-60 (Honourable Sir Henry Manning); 1862 (Captain The Honourable W G Bradley). 76 Notwithstanding this, the opposition again had a majority in the Legislative Council following the election, and the bill was once more met with opposition. It finally passed the Legislative Council following concessions being made by both sides. In its final form, the bill allowed the claims of parents and spouses, but introduced a requirement for sight or hearing in relation to claims made by other family members.
200 understandings in form although it perhaps involved a miscalculation in relation to the assessment of common understandings. The reasoning of those in the majority in Chester is consistent with the corrective justice approach based on common understandings advanced in Part II, to the extent that Latham CJ, Rich and Starke JJ based their decisions on the Donoghue v Stevenson77 test of reasonable foreseeability78 and referred explicitly to community understandings and expectations in their reasoning. In finding that psychiatric injury to the claimant as a result of seeing the body of her child should not be regarded as ‘within the reasonable anticipation of the defendant’,79 Latham CJ stated: ‘Death is not an infrequent event, and even violent and distressing deaths are not uncommon.’80 His Honour stated:
It is, however, not a common experience of mankind that the spectacle, even of the sudden and distressing death of a child, produces any consequence of more than a temporary nature in the case of bystanders or even of close relatives who see the body after death has taken place.81
Rich J’s assessment of what was commonly appreciable at the time was similar:
a mother’s shock on the production of the dead body of her child falls outside the duty of the municipality in relation to the care of its roads. She was not using the road nor a witness of the accident. Her subsequent shock is not reasonably within the contemplation of the defendant as a consequence of the condition of the road.82
Similarly, Starke J found that because the claimant was not present at the time of the accident and did actually see it, the defendant’s negligence in failing to guard the trench:
was but indirectly connected with the shock to the appellant and the act or omission of the respondent was not so closely and directly connected with the shock sustained by the appellant that it can be traced to that act or omission.83
77 [1932] AC 562, 580. 78 This being consistent with Beever’s perspective that the Donoghue v Stevenson [1932] AC 562 test of reasonable foreseeability is consistent with corrective justice: see chapter 2. 79 Chester v The Council of the Municipal of Waverley (1939) 62 CLR 1, 10. 80 Ibid. 81 Ibid. 82 Ibid 11. 83 Ibid 13.
201
Starke J regarded shock to the claimant as ‘not within the ordinary range of human experience’ which was ‘so remote from the act or omission of the respondent in opening or guarding the trench that no reasonable person ought to or would foresee or contemplate the injury to the appellant.’84
Latham CJ was concerned that a duty to the claimant in such circumstances might not have any logical limit and therefore be unworkable in reality. He stated:
It is rather difficult to state the limit of the alleged duty. If a duty of the character suggested exists at all, it is not really said that it should be confined to mothers of children who are injured. It must extend to some wider class – but to what class? There appears no reason why it should not extend to other relatives or to all other persons, whether they are relatives or not. If this is the true principle of law, then a person who is guilty of negligence with the result that A is injured will be liable to B, C, D and any other persons who receive a nervous shock…at any time upon perceiving the results of the negligence, whether in disfigurement of person, physical injury, or death.85
Similarly concerns were mentioned by Rich J:
The train of events which flow from the injury to A almost always includes consequential suffering on the part of others. The form the suffering takes is rarely shock; more often it is worry and impecuniosity. But the law must fix a point where the remedies stop short of complete reparation for the world at large, which might appear just to a logician who neglected all the social consequences which ought to be weighed on the other side.86
It has been argued that the majority judge’s reasoning was artificial in its use of notions of principle to ultimately decide the case for reasons of policy.87 However, as argued above,
84 Ibid. 85 Ibid. 86 Ibid 11. 87 It has been argued that the reasoning of Latham CJ and Rich J reveals that rather being based on reasons of principle, their Honour’s decisions were instead unprincipled judgments based on policy concerns merely cloaked in reasons of principle: see Peter Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (Thomson, 2nd ed, 2006) 130. Butler has taken a similar position describing this judgment as ‘Perhaps a high watermark of artificial reasoning’: Des Butler, Damages for Psychiatric Injuries (Federation Press, 2004) 42-3. Another more charitable assessment of the majority’s decision is that the approach taken showed that the Donoghue v Stevenson [1932] AC 562 test for duty had not yet been completely
202 concerns of this nature – that is, of indeterminate liability – are potentially consistent with the corrective justice approach advanced in Part II despite being described as concerns of policy at least insofar as they are taken into consideration in attempting to determine principles of equal application to all persons.88 As far as it can be contended that their Honours were attempting to determine principles of equal application to all parties their reasoning might well be argued to be consistent with the approach advanced in Part II.
However, there are at least two reasons to argue that this was not the case. The first is that their Honours did not attempt to determine any principle of equal application to the parties, instead simply coming to the conclusion that whatever the limit of the law might be the present case extended beyond that point. In doing so, their Honours gave undue importance to whether the claimant perceived the precise moment of her son’s death, a factor not relevant to whether the defendant was able to appreciate the risk of injury to the claimant. A requirement for direct perception risks being under-inclusive in cases involving death or injury of a loved one, operating as an arbitrary limit on liability. This is how it operated in relation to Mrs Chester’s claim, effectively barring her claim despite it being deserving from the perspective of corrective justice. This consideration also is potentially over-inclusive in circumstances where a claimant might be able to satisfy a court that they have directly witnessed a particular phenomenon, this then having the potential to influence a finding that psychiatric injury to the claimant was reasonably foreseeable, despite the possibility that the phenomenon they have witnessed not actually being aetiologically relevant. A court in such a case may incorrectly conclude that having directly perceived something related to the case, psychiatric injury to the claimant was more likely to be reasonably foreseeable, despite the aetiological insignificance of the actual phenomenon witnessed.
The second reason that the majority’s reasoning was not consistent with the corrective approach advanced in Part II is that on the basis of prevailing understandings,89 the judgments of those in the majority appear to have involved a serious miscalculation of the common experiences of the ordinary member of the general community.90 As a consequence, their Honours’ determination of the issue of reasonable foreseeability by reference to whether the claimant
adopted: Danuta Mendelson, The Interfaces of Medicine and Law: The History of the liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 140. 88 This point has been discussed in more depth above at section 4.2.2. 89 See section 6.2.1. 90 This will discussed in further depth below at section 6.3.1.
203 witnessed the moment of her son’s death placed undue importance on a matter – whether she had witnessed the precise moment of her son’s death – which was arbitrary.
In stark contrast, Evatt J’s judgment in dissent – a judgment of great influence in the later development of the law91 – was consistent with the corrective justice approach based on common understandings. Rather than choosing the narrower conception of liability chosen by those in the majority, Evatt J instead chose a deeper and more general conception of justice to underpin his judgment. Unlike the judges in the majority, Evatt J’s decision dovetailed neatly with the picture of prevailing understandings painted above.92
Rather than simply assert that Mrs Chester’s psychiatric injury was not reasonably foreseeable because her reaction to the trauma of realising her son had drowned was outside of the realm of ordinary human experience – as the majority in Chester had done – Evatt J, in a remarkably empathetic judgment, painstakingly drew a picture of the awful fear and panic that the claimant experienced. That Evatt J was concerned not with expert understandings but with common understandings of the causes of mental disorders can be seen in his consideration not of what an expert could have appreciated of the likely reaction of the claimant in this terrible situation, but of what any ordinary person might have expected a mother to have experienced. This can be seen in the following passage in his Honour’s judgment:
The plaintiff was a woman of Polish extraction, and found special difficulty in narrating the precise nature of her feelings, her fears, her hopes and her sufferings. But it is quite easy, I think, to perceive the order of events. It is abundantly clear that until the recovery of the body she did not know that her child had been drowned in the trench. Like most mothers placed in a similar situation, she was tortured between the fear that he had drowned and the hope that either he was not in the trench at all, or that, if he was, a quick recovery of his body and the immediate application of artificial respiration might still save him from death. In this agonized and distracted state of mind and body she remained for about half an hour, when police arrived and the child’s body was discovered and removed.93
91 This will be discussed further below in chapters 7 and 8. 92 At section 6.2.1. 93 Chester v The Council of the Municipal of Waverley (1939) 62 CLR 1, 17.
204
Focussing his judgment on the terrible effects of the situation on the mind of the claimant, his Honour continued:
During this crucial period the plaintiff’s condition of mind and nerve can be completely understood only by parents who have been placed in a similar agony of hope and fear with hope gradually decreasing. In the present case the half hour of waiting was the culmination of a long and almost frantic searching which had already reduced her to a state of nerve exhaustion. Even after the finding of the body, an attempt at artificial respiration was made and abandoned only after expert lifesavers had worked on the child’s body for some time.94
In considering the possible effects of this situation on the claimant, Evatt J might have referred to medical and scientific literature. It is significant then that his Honour instead chose to refer to works of poetry and fiction – more reflective of the experiences of ordinary members of the public – in order to draw a harrowing picture of the distress Mrs Chester must have experienced searching for her lost child, hoping against hope that he would be found, whilst at the same time fearing he had come to harm.95 He stated:
William Blake’s imaginative genius has well-portrayed suffering and anxiety of this kind:- “Tired and woe-begone Hourse with making moan . . . Rising from unrest The trembling woman prest With feet of weary woe: She could no further go.”96
His Honour referred to another literary work in drawing out this terrible experience:
The Australian novelist, Tom Collins, in Such is Life, has also described the agony of fearfulness caused by the search for a lost child:- “Longest night I ever passed, though it was one of the shortest of the year. Eyes burning for want of sleep, and couldn’t bear to lie down for a minute. Wandering about for miles;
94 Ibid. 95 Ibid 17-9. 96 This is an extract from Blake’s poem ‘The Little Girl Found’ published in his 1794 collection of poetry entitled Songs of Innocence and of Experience: cited in Chester v The Council of the Municipal of Waverley (1939) 62 CLR 1, 17.
205
listening; hearing something in the scrub, and finding it was only one of the other chaps, or some sheep. Thunder and lightning, on and off, all night; even two or three drops of rain, towards morning. Once I heard the howl of a dingo, and I thought of the little girl; lying worn-out, half-asleep and half-fainting – far more helpless than a sheep.” At a later point in the same novel:- “There was a pause, broken by Stevenson, in a voice which brought constraint on us all. Bad enough to lose a youngster for a day or two, and find him alive and well; worse, beyond comparison, when he’s found dead; but the most fearful thing of all is for a youngster to be lost in the bush, and never found, alive or dead.”97
Evatt J stated that the common law had come to recognise that in similar circumstances, ‘shock of the most grievous character’ could be sustained, and that as such, it was ‘not remarkable that there was evidence of some permanent injury to the plaintiff’s nervous system.’98 In these passages, Evatt J was making it clear that it was readily appreciable to the ordinary member of the public that there was an appreciable risk of psychiatric injury to anyone unfortunate enough to be a parent of a lost child who was eventually found to have died. This conclusion is consistent with vast literature discussing the terrible grief of losing a child,99 and with the motivations of the New South Wales government in enacting the Law Reform (Miscellaneous Provisions) Bill 1944.100
His Honour was critical of the way that those in the majority made fine distinctions in their assessments of what the claimant saw and heard and the timing of this in relation to the suffering of her injury. Given his Honour’s account of the terrible pain and suffering the claimant likely suffered, this criticism was aimed particularly at the conclusion that her injury was not sufficiently related to the defendant’s negligence due to the fact that she saw his body only after he had died, not having seen his actual death. Evatt J made it clear that the anxiety and suffering of the claimant leading to psychiatric injury was not instantaneous and completed at the time she realised her son was missing, but was instead agonizingly protracted, continuing
97 Such is Life is the fictional diary of Tom Collins, a man in rural Australia. It was written in 1897 by Joseph Furphy: cited in Chester v The Council of the Municipal of Waverley (1939) 62 CLR 1, 18. 98 Chester v The Council of the Municipal of Waverley (1939) 62 CLR 1, 18. 99 Considered above at section 5.5.1 in relation to Hambrook. 100 Considered above at section 6.2.1.
206 at least up until she realised he could not be revived by those assisting with the recovery of his body from the trench.101
His Honour rejected the argument that the claimant was not owed a duty because the defendant’s negligence was completed by the time she suffered shock, finding that as a result of Atkin J’s decision in Hambrook, a duty at least included the full period of time during which the results of the defendant’s negligence became manifest.102 This approach fits neatly with the common understandings approach and is principled, only making distinctions between claimants which are normatively justified. This is because it mattered little at a community understandings level whether the claimant actually saw her child’s death, it likely being appreciable to the ordinary member of the public at the time that a parent might suffer such an injury due to the death of a child in unexpected and distressing circumstances.103
Evatt J was also critical of the Full Court’s position that Hambrook applied only in relation to ‘wayfarers’ or ‘passers-by’, and not to those in the situation of the claimant.104 Rejecting this position, his Honour stated ‘I think that the law is at once more civilized and more humane’.105 Affirming the principle in Donoghue v Stevenson,106 Evatt J stated:
Behind the illustration provided by Hambrook v Stokes Brothers…. Lies the broader principle enunciated by Lord Atkin in Donoghue v Stevenson…in order to help in determining whether the common law has established a relationship of duty between a defendant on the one hand and a plaintiff, or the class to which a plaintiff belongs, on the other:- ‘Who then is my neighbour? The answer seems to be – 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 into question.’107
101 Chester v The Council of the Municipal of Waverley (1939) 62 CLR 1, 17-9. 102 Ibid 20-1. Evatt J was critical of such a position, taking the view that too fine a psychological analysis should not be taken of the circumstances in which the claimant suffered psychiatric injury. His Honour stated:
It would be a very narrow reading of this epoch-making decision to limit the principle of liability which it applies to cases where the onset of nervous shock occasioning illness preceded or coincided with the occurrence of the apprehended casualty: ibid at 21-22.
103 See the discussion above at section 5.5.1 regarding common understandings of mental disorders resulting from the loss of a child. 104 Ibid 23. 105 Ibid. 106 [1932] AC 562, 580. 107 Chester v The Council of the Municipality of Waverley (1939) 62 CLR 1, 23.
207
Evatt J then applied the criterion of the reasonable person to the facts in the case, finding that such a person would have foreseen that a trench being left unguarded would attract nearby children, and that such a trench would constitute a ‘special menace’ for children who risked falling in the trench and drowning.108 His Honour further found that a reasonable person would also have foreseen that the parents of such a child would come to the scene of the accident to seek to render assistance, and may well in the process themselves suffer ‘physical injury or illness caused by nervous shock and distress.’109 His Honour stated:
If the present defendant had ‘directed his mind’ at all to the possible consequences of his primary default, would he not have foreseen the likelihood of injury being suffered, not perhaps in the precise way I which it was suffered, but in some such way? If so, he owed a duty to the person who suffered.110
In a comment giving consideration to the extent of liability in negligence in cases of nervous shock, Evatt J stated:
The law does not assume that all beings can bear a burden too great for many to suffer. ‘There may well be,’ as Lord Atkin said, ‘cases where the sight of suffering will directly and immediately physically shock the most indurate heart; and if the suffering of another be the result of an act wrongful to the spectator, I do not see why the wrongdoer should escape.111
His Honour further rejected the argument by the defendant that only mothers who were susceptible to psychiatric injury would have suffered such an injury in the circumstances, stating that such a proposition was ‘mere assertion’ which was ‘contradicted by all human experience.’ His Honour stated that ‘only “the most indurate heart” could have gone through the experience without serious physical consequences.’112 Consequently, by comparison with the majority, Evatt J’s approach to the test of reasonable foreseeability was the preferable approach. His Honour focussed on the particular details surrounding where and how the claimant became aware of the death of her son only in relation to the effects of the situation on her mind. Rather than attempting to highlight particular points in time which were more and
108 Ibid. 109 Ibid. 110 Ibid. 111 Ibid 24. 112 Ibid 24-5.
208 less important in relation to the onset of the claimant’s psychiatric injury, his Honour considered the issues more broadly, focussing on the crucial question of whether the risk of psychiatric injury to her was appreciable to the common person on the street.
On the basis that it was Lord Atkin’s ‘neighbour’ principle’ which lay behind the decision in Hambrook, his Honour applied the same test to the facts in Chester, demonstrating that the law could not be limited to wayfarers or passers-by but should in principle include claimants in Mrs Chester’s position.113 In drawing out this position his Honour noted that if Mrs Chester had jumped into the trench in fear for her son’s safety and was thereby physically injury, she would be able to recover. The law could not grant recovery for his situation but then deny recovery for a mother who suffered physical injury as a result of the effects on her nervous system of the fear and anxiety which overcame her as the search for her son took place and then revealed his body. On the basis of the finding in Owens his Honour found that if a mother was to come upon a child killed by accident at some point after the exact point in time that the child had died there would be no reason in principle to deny liability if injury by shock had resulted.114 As far as Evatt J was concerned, in both situations the potential claimant was a ‘neighbour’ of the defendants and both ought to be able to recover.
Consequently, unlike the decision of majority, Evatt J’s judgment in Chester was principled, reflecting the moral culpability of the defendant in causing the claimant’s harm. His Honour’s application of the Donoghue v Stevenson115 test of reasonable foreseeability was consistent with the interpretation of this test taken by Beever,116 and his reasons also reflected a concern to found liability on the defendant’s moral culpability for causing the claimant’s harm.117
113 Chester v The Council of the Municipality of Waverley (1939) 62 CLR 1, 23-4. 114 Ibid 36. 115 [1932] AC 562. 116 See chapter 2. 117 Like Dulieu and Hambrook, Chester also demonstrates well the phenomenon of theoretical disagreement contemplated by interpretive theories. There were a number of substantive differences in the findings of the majority and Evatt J which were more than simply disputes about the application of agreed sources of law. The contention by the defendants that Hambrook required direct perception of the death of a child demonstrates this well. Underlying the defendant’s arguments for this interpretation was Bankes LJ’s judgment in Hambrook, in which he confined his decision to a narrow reading of the facts in that case, including a requirement for direct perception by the claimant’s own unaided senses. Sargant LJ’s dissenting judgment could also be called upon by the defendants to support a narrower reading of Hambrook. On the other hand, Atkin LJ’s judgment in Hambrook was much wider in application, and given that his general test of reasonable foresight from Donoghue v Stevenson [1932] AC 562 was the applicable test of duty by the time of Chester, seemed to be appropriate and preferable
209
6.3 Hay or Bourhill v Young (1942)118
In Bourhill, the claimant suffered psychiatric injury as a result of hearing the defendant fatally injure himself in a motorbike accident, and from seeing blood stains on the road after his body was taken to hospital. The claimant suffered fright after stepping off a tram car in which she had been travelling. She did not see the accident as she was shielded from this sight by the tram, although she heard the loud crash. She was also greatly distressed at witnessing the defendant’s blood on the road. Bourhill was the first case of negligently inflicted psychiatric injury to reach the House of Lords. In this case, the principles of compensation would again be tested, this time in relation to whether a claimant could claim damages where he or she had not directly seen an accident involving a stranger. Applying the Donoghue v Stevenson119 test of duty, the House of Lords found that the defendant did not owe the claimant a duty of care.120 The court reasoned that it could not be held that the defendant should have reasonably foreseen that the claimant would be likely to suffer nervous shock as a result of his act, placed where she was on the nearside of the tram car.121 Of significance to the court was the fact that at the time of the accident, the claimant and defendant could not see each other, with the tram car being between them.122
As with the decision in Chester, much about the decision in Bourhill is not consistent with the approach advanced in Part II. Bourhill seemed to affirm the requirement for direct perception found in Chester despite the consideration of this issue forming part of the application of the test of reasonable foreseeability to the circumstances of the case. However, the House of Lords
interpretation. The choice of the former interpretation by the majority was heavily influenced by the policy fears of an opening of the floodgates and concerns for indeterminate liability, and was a choice of substantively different sources or grounds of law from those applied by Evatt J in dissent. An interpretivist might argue that this represented two distinct interpretations of the grounds of the law. The majority regarded policy concerns as being a relevant factor impacting upon the frontiers of liability, and so interpreted Hambrook in a way which was able to take these concerns into account and have an effect on the ambit of liability. On the other hand, Evatt J only considered the matter in terms of the principles underpinning such claims, not regarding policy concerns as being relevant grounds of law. Concerned solely with whether the defendants had wronged the claimant, Evatt J was able to mount a clear and convincing argument that Mrs Chester had been wronged by the defendants and ought to be compensated. 118 [1942] 2 All ER 396 (‘Bourhill’). 119 [1932] AC 562. 120 Hay or Bourhill v Young [1942] 2 All ER 396, 400 (Lord Thankerton), 401 (Lord Russell of Killowen), 403 (Lord Macmillan), 406 (Lord Wright), 409-10 (Lord Porter). 121 Ibid. 122 Ibid.
210 in Bourhill went one step further than the High Court in Chester, imposing a further arbitrary limit on liability. In support of the conclusion that psychiatric injury to the claimant was not reasonably foreseeable, the House of Lords was particularly influenced by the fact that at the time of the collision, the claimant was not in any physical danger herself.123 In addition, Lords Wright and Porter both also proposed that when considering whether the claimant was owed a duty of care, it was also relevant to consider whether the risk of psychiatric injury to as person of a normal level of susceptibility was appreciable.124
The House of Lords in Bourhill had the same legal authorities to draw upon as could have been drawn upon by the Australian High Court in Chester. However, the fact situation in Bourhill tested the boundaries of liability in a different way than had Chester, principally because Mrs Bourhill and the defendant were unknown to each other. Like Chester, there was no binding legal authority which would have allowed for the disposition of this case by the application of deductive reasoning alone. As was the case in Chester, Owens seemed to suggest that if injury through shock could be proved, the claimant’s action ought to succeed notwithstanding what particular phenomena the claimant actually perceived. However, the House of Lords did not see fit to take the direction suggested by Owens. Both Lords Thankerton and Porter disagreed that there was any duty in that case,125 whilst Lords Macmillan and Wright said they would not have gone as far as the Court of Appeal did.126 Lord Russell simply did not mention Owens. Also available to the House of Lords was the recent decision in Chester which suggested a limited view of liability. However, only Lord Wright mentioned this case, and then only in passing and in a way which did not have any discernible effect on the outcome.127
6.3.1 Prevailing understandings of the causes of psychiatric disorders
Although occurring in the same period of time, a key difference between the injury suffered by Mrs Bourhill and the injury suffered by Mrs Chester was that the former resulted from witnessing the death of a stranger. By modern scientific understandings, the type of traumatic incident experienced by Mrs Bourhill has been associated with the onset of PTSD, as well as
123 Ibid 399 (Lord Thankerton), 401 (Lord Russell of Killowen), 403 (Lord Macmillan), 406 (Lord Wright), 409 (Lord Porter). 124 Ibid 405-6 (Lord Wright), 409 (Lord Porter). 125 Ibid 400 (Lord Thankerton), 409 (Lord Porter). 126 Ibid 403 (Lord MacMillan), 406 (Lord Wright). 127 Ibid 406.
211 with other anxiety disorders related to the experiencing of traumatic stress.128 It is also arguable that an expert in 1942 would likely have been able to appreciate the risk of psychiatric injury to Mrs Bourhill as a result of exposure to a traumatic incident, notwithstanding that she did not know the defendant and was also not physically injured in the accident or at risk of being physically injured.
Importantly, it was understood by experts at this point in time that traumatic neuroses suffered as a result of war had similar origins to those suffered in civilian accident.129 This had been understood by some researchers at around the end of World War I,130 however, by the 1930s this was no longer a point of controversy amongst experts. In particular, it was understood by this time that whilst the subject of internal conflict and discontent resulting from war trauma differed from trauma suffered in civilian life, similar underlying mechanisms were involved in causing neuroses.131 As explained in 1936 by the Senior Assistant Physician at Kings Park State Hospital in New York, the common factor between war and civilian traumatic neuroses was the experiencing of ‘Sudden unexpected situations, accompanied by strong emotional shock’.132
It was also understood at this time by experts that traumatic neuroses resulting from incidents where a person was exposed to circumstances involving extremely terrifying content could
128 Exposure to the extreme stress of this incident, including the sound, and the blood on the pavement indicating that the defendant was likely deceased, is likely to be considered outside the normal range of human experiences, and of a character which has been associated with the onset of PTSD: see Mardi J Horowitz, ‘Stress-Response Syndromes: A Review of Posttraumatic Stress and Adjustment Disorders’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 54; Des Butler, Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 240, citing JL Herman, Trauma and Recovery (Pandora, 1992) 15-6. 129 See Pompeo Milici, ‘Pathogenic Effect of Emotional Shock’ (1936) 10(4) Psychiatric Quarterly 639, 639; W Ronald D Fairbair, ‘The War Neuroses: Their Nature and Significance’ (1943) British Medical Journal 183, 183; Hubert Winston Smith and Harry C Solomon, ‘Traumatic Neuroses in Court’ (1943) 30(1) Virginia Law Review 87, 90. 130 See MC Jarrett, ‘Shell-Shock Analogues: Neurosis in Civil Life Having Sudden or Critical Origin’ (1918) 2 Medicine and Surgery 266-80; WHR Rivers, ‘The Expression of War Experience’ (1918) The Lancet 173-7; FW Mott, ‘Mental Hygiene and Shell-Shock During and After the War’ (1917) The British Medical Journal 39-42 (14 July 1917); C S Myers, ‘A Contribution to the Study of Shell Shock’ (1915) Lancet 316-20. 131 See Pompeo Milici, ‘Pathogenic Effect of Emotional Shock’ (1936) 10(4) Psychiatric Quarterly 639, 639, 650; Hubert Winston Smith and Harry C Solomon, ‘Traumatic Neuroses in Court’ (1943) 30(1) Virginia Law Review 87, 90. 132 See Pompeo Milici, ‘Pathogenic Effect of Emotional Shock’ (1936) 10(4) Psychiatric Quarterly 639, 639.
212 actually be more pathogenic than those neuroses resulting from actual physical injury.133 Rather than resulting in direct physical changes in the organism, as would ordinarily occur with trauma causing physical injury, traumatic neurosis was understood at this time to result from the relevant emotional stimuli overwhelming the individual’s coping mechanisms and available emotional and psychological resources.134 Reactive psychic defences in the form of ‘acute confusional, hallucinatory, stuporous states, ambulatory fugues with subsequent amnesia, delusional systems, buffoonery syndromes, the ecstasies and the other hysterical twilight states’ were considered to arise as a response to the suddenness and gravity of the traumatic situation experienced.135
In relation to common understandings at the time of Bourhill, there are numerous pieces of evidence which are particularly telling when attempting to assess understandings of the general public at the time as to the likelihood that a person might suffer lasting mental disorder as a result of being exposed to the trauma of witnessing a terrible accident involving a stranger. As was the case at the time Hambrook was decided,136 there is good reason to suggest that at the time of Bourhill the phenomenon of the fatal automobile accident was one which was likely familiar to the general public. The numbers of motor vehicle registrations and fatal road transport accidents rose steadily in Britain in the 1920s and 1930s.137 In 1922, the rate of death from such accidents was 72 per million people. By 1930, this number had risen to 177 per million people.138 In the period 1931 to 1938, the rate of death as a result of motor vehicle accidents in England and Wales was 75 per million people for females, and 235 per million for males.139 From 1918 to 1938, there also was a ten-fold increase in the numbers of motor vehicle accidents involving personal injury.140 Motor vehicle accidents were also a great social problem in the United States of America at this time. Between 1921 and 1930, over 230,000 people
133 See Alexandra Adler, ‘Two Different Types of Post-Traumatic Neuroses’ (1945) 102(2) American Journal of Psychiatry 237, 237. 134 Harold Kelmen, ‘Character and the Traumatic Syndrome’ (1945) 102(2) Journal of Nervous and Mental Disease 121, 130. 135 See Pompeo Milici, ‘Pathogenic Effect of Emotional Shock’ (1936) 10(4) Psychiatric Quarterly 639, 639. 136 See discussion of prevailing understandings in relation to Hambrook above at section 6.5.1. 137 See M Greenwood, WJ Martin and WT Russell, ‘Deaths by Violence, 1837-1937’ (1941) 104(2) Journal of the Royal Statistical Society 146, 147. 138 Ibid 150. 139 Ibid 153. 140 Road Accidents Involving Personal Injury, a Return issued by the Home Office on 22nd March, 1937: Parliamentary Paper No. 89 of Session 1936-7: cited in Hector Hughes, ‘The Position of the Injured Third Party’ (1938) 1(4) Modern Law Review 258, 258.
213 were killed in accidents of this kind in the United States. In 1930 alone, over 33,000 people were killed.141 The numbers in the United States, like in England and Wales, rose again in the 1930s. In 1931 this number was 33,675, and in 1932 was 29,451. By 1933 the figure had risen to 31,363, and then it rose again in the four subsequent years to 36,101 in 1934, 36,369 in 1935, 38,089 in 1936, and to 39,500 in 1937.142
The rise in numbers of motor vehicle accidents in Britain was accompanied by a dramatic rise in claims for compensation.143 This also occurred in the United States of America. In the year 1930 to 1931, there were 53,338 actions filed in New York County, up to 57% of which were negligence cases involving injuries caused by motor vehicle accidents.144 Estimates made at the time also showed that a significant proportion of jury trials in United States were cases involving claims for damages arising out of motor vehicle accidents, with the figure at around 50% in Philadelphia County145 and in Massachusetts,146 and as high as 75% in one county in Ohio.147
The numbers of fatal motor vehicle accidents and claims for compensation had increased at such a great rate in Britain that in 1928, a Royal Commission was established to deal with the problems caused by transportation.148 The Road Traffic Act 1930 and Road Traffic Act 1934 were enacted as a result of the Commission’s recommendations, containing a number of measures intended to reduce the numbers and negative social costs of accidents. These
141 See Report by the Committee to Study Compensation for Automobile Accidents to the Columbia University Council for Research in the Social Sciences (Feb1, 1932): cited in Noel T Dowling, ‘Compensation for Automobile Accidents: A Symposium’ (1932) 32(5) Columbia Law Review 785, 786. 142 Harold Ross, ‘Traffic Accidents a Product of Socio-Psychological Conditions’ (1940) 18(4) Social Forces 569, 569. 143 Hector Hughes, ‘The Position of the Injured Third Party’ (1938) 1(4) Modern Law Review 258, 258. 144 See Patterson H French, ‘Accident Litigation and the Automobile Compensation Plan’ (1933) 167(1) The Annals of the American Academy of Political and Social Science 201, 202. 145 See Report by the Committee to Study Compensation for Automobile Accidents to the Columbia University Council for Research in the Social Sciences (Feb1, 1932): cited in Patterson H French, ‘Accident Litigation and the Automobile Compensation Plan’ (1933) 167(1) The Annals of the American Academy of Political and Social Science 201, 202. 146 See Robert S Marx, ‘Compulsory Compensation Insurance’ (1925) 25(2) Columbia Law Review 164: cited in Patterson H French, ‘Accident Litigation and the Automobile Compensation Plan’ (1933) 167(1) The Annals of the American Academy of Political and Social Science 201, 202. 147 Cuyahoga County: ibid. 148 Francis Deák, ‘Compulsory Liability Insurance Under the British Road Traffic Acts of 1930 and 1934’ (1936) 3 Law & Contemporary Problems 565, 565-6.
214 regulated motor vehicles, amended highway laws, and established a compulsory insurance scheme aimed at protecting injured third parties.149 Similar legislation was enacted in 1942 in New South Wales,150 and in 1932 in Western Australia.151
In the United States of America, a number of states had by 1925 adopted laws making insurance relating to injuries to third parties compulsory for those carrying passengers for hire.152 However, the problem of uninsured motorists persisted, and in 1932, a committee was established by the Columbia University Council for Research in the Social Sciences to report on the social and financial costs of motor vehicle accidents. The committee recommended that a no fault compulsory insurance regime be established, one of the aims of which was to protect injured third parties.153 The plan centred around imposing a requirement for insurance, and on removing claims for damages arising out of motor vehicle accidents from the courts by resolving them administratively.154 By 1938, at least 28 states had enacted legislation attempting to ensure in one way or another that drivers were financially capable of paying compensation to those they had injured or killed in motor vehicle accidents.155
Rising rates of motor vehicle accidents and claims for compensation were also a significant social and financial problem in other countries at the time. In response to this issue, legislation
149 Ibid 566. 150 Motor Vehicle (Compulsory Third Party Insurance) Act 1942 (NSW). 151 Motor Vehicle (Compulsory Third Party Insurance) Act 1943 (WA). 152 Laws of this kind had been enacted in Arizona, Connecticut, Florida, Illinois, Iowa, Louisiana, Michican, Nebraska, Navada, Ohio, New Hampshire, New Jersey, New York, New Mexico, Pennsylvania, Rhode Island, Virginia, Washington, and Wisconsin: see Robert S Marx, ‘Compulsory Compensation Insurance’ (1925) 25(2) Columbia Law Review 164, 172-3. 153 See Report by the Committee to Study Compensation for Automobile Accidents to the Columbia University Council for Research in the Social Sciences (Feb1, 1932): cited in Shippen Lewis, ‘The Merits of the Automobile Accident Compensation Plan’ (1936) 2 Law & Contemporary Problems 583, 583. 154 Patterson H French, ‘Accident Litigation and the Automobile Compensation Plan’ (1933) 167(1) The Annals of the American Academy of Political and Social Science 201, 207. 155 These were Arizona, California, Colorado, Connecticut, Delaware, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Vermont, Virginia, West Virginia, and Wisconsin: Edward A Hogan Jr and Lee M Stubbs, ‘The Sociological and Legal Problem of the Uncompensated Motor Victim’ (1938) 11 Rocky Mountain Law Review 11, 20.
215 had by this time already been enacted in New Zealand,156 Germany,157 Austria,158 Norway,159 Sweden,160 Finland,161 Denmark,162 Switzerland,163 and Czechoslovakia.164 These pieces of legislation attempted to respond to the significant problem of motor vehicle accidents and claims for compensation in a variety of ways, including by imposing strict liability regimes for damages,165 by establishing systems of compulsory insurance,166 and by a combination of both of these measures.167
As at the time of Hambrook, it is unsurprising that the subject of automobile accidents was one which commonly appeared in the British newspapers in the 1920s and 1930s, especially in relation to claims for compensation.168 The same subject also appeared frequently in the
156 See Motor Vehicles Insurance (Third Party Risks) Act 1928, 19 Geo V (NZ) No. 52: cited in Francis Deak, ‘Liability and Compensation for Automobile Accidents’ (1937) 21(2) Minnesota Law Review 123, 126. 157 See Statute of May 3, 1909, (Gesetz über den Verkehr mit Kraftfahrzeugen): cited in Francis Deak, ‘Liability and Compensation for Automobile Accidents’ (1937) 21(2) Minnesota Law Review 123, 126. 158 See Statute of December 20, 1929 (Bundesgesetz über das Kraftfahrwesen) Bundesgesetzblatt 1929, 1791, No. 437: cited in Francis Deak, ‘Liability and Compensation for Automobile Accidents’ (1937) 21(2) Minnesota Law Review 123, 126. 159 See Statute of February 20, 1926 (Lov om Motorvogner): cited in Francis Deak, ‘Liability and Compensation for Automobile Accidents’ (1937) 21(2) Minnesota Law Review 123, 126. 160 See Statute No. 77 of May 10, 1929 (Lag om Trafikförsäkring å Motorfordon): cited in Francis Deak, ‘Liability and Compensation for Automobile Accidents’ (1937) 21(2) Minnesota Law Review 123, 126. 161 See Statute of April 28, 1925 (Laki Moottoriajoneuvoliikenteesta Johtuvan Vahigon Vastuusta) Suomen Asetuskokoelma 1925, 527, No. 148: cited in Francis Deak, ‘Liability and Compensation for Automobile Accidents’ (1937) 21(2) Minnesota Law Review 123, 126. 162 See Statute No. 144 of July 1, 1927, (Lov om MotorkoSretojer) Lovtidende for Kongeriget Danmark 1927, 657; amended by statute No. 131 of April 14, 1932: cited in Francis Deak, ‘Liability and Compensation for Automobile Accidents’ (1937) 21(2) Minnesota Law Review 123, 126. 163 See Statute of March 15, 1932 (Bundesgesetz über den Motorfahrzeug-und Fahrradverkehr), 48 (NF): cited in Francis Deak, ‘Liability and Compensation for Automobile Accidents’ (1937) 21(2) Minnesota Law Review 123, 124. 164 See Statute No. 81 of March 26, 1935 (Gesetz über den Verkehr von Kraftfahrzeugen): cited in Francis Deak, ‘Liability and Compensation for Automobile Accidents’ (1937) 21(2) Minnesota Law Review 123, 124. 165 Such a regime was introduced in Germany. 166 Compulsory insurance regimes were established in New Zealand and in Britain. 167 Such systems were established in Austria, Norway, Sweden, Finland, Denmark, Switzerland, and Czechoslovakia: Francis Deak, ‘Liability and Compensation for Automobile Accidents’ (1937) 21(2) Minnesota Law Review 123, 125-6. 168 See, eg, Exeter and Plymouth Gazette, ‘Motoring’, 17 January 1925, 3; Sunday Post, ‘Motorists and Their Insurance Policies’, 19 April 1925, 9; Exeter and Plymouth Gazette, ‘Motoring’, 25 April 1925, 3; Nottingham Evening Post, ‘Who is to Blame?’, 28 July 1926, 1; Aberdeen Press and Journal, ‘Strathspey Road Mishap’, 16 January 1929, 8; The Scotsman, ‘Motor Car Driving. Need for Road Sense. Only Acquired by Practice’, 16 February 1929, 14; Durham
216
Australian newspapers at the time.169 There were in addition numerous newspaper articles in the 1920s and 1930s concerning ‘nervous shock’ arising due to involvement in an accident,
Chronicle, ‘Bus Collision Sequel’, 26 April 1929, 3; Hull Daily Mail, ‘The Life of the Road’, 26 September 1929, 6; Dundee Courier, ‘Critics of Motor Insurance’, 24 October 1929, 9; Exeter and Plymouth Gazette, ‘Road Traffic’, 29 October 1929, 2; Exeter and Plymouth Gazette, ‘Motor Notes’, 16 November 1929, 3; Exeter and Plymouth Gazette, ‘Motor Notes’, 8 March 1930, 3; Exeter and Plymouth Gazette, ‘Motor Notes’, 7 November 1931, 3; Thanet Advertiser, ‘Third Party Damages’, 21 February 1933, 4; Aberdeen Press and Journal, ‘Compensation for Road Accidents’, 6 May 1933, 5; Western Daily Press, ‘Compensation for Road Accidents’, 6 May 1933, 12; Biggleswade Chronicle, ‘Compensation for Accidents Bill’, 19 May 1933, 6; Lichfield Mercury, ‘Compensation for Accidents Bill’, 19 May 1933, 6; Nottingham Evening Post, ‘£50 Special Pension’, 14 July 1933, 9; Western Daily Press, ‘Doctors and Road Accidents’, 14 July 1933, 12; Belfast News-Letter, ‘Motor Notes. Compensation for Accidents’, 12 August 1933, 9; Bucks Herald, ‘Two Civil Actions’, 11 May 1934, 8; Western Gazette, ‘To the Editor’, 3 August 1934, 2; Bucks Herald, ‘Compensation for Injuries’, 17 February 1935, 11; Yorkshire Post and Leeds Intelligencer, ‘Appeal Dismissed’, 6 May 1938, 6. 169 See, eg, Sun, ‘’Bus Accidents. Claims for Compensation’, 2 May 1924, 12; Age, ‘Motor Traffic. Motor Lorry Overturned. A Man Killed. Wife’s Compensation Claim’, 13 November 1924, 10; Southern Cross, ‘Traffic Control’, 6 August 1926, 10; Advocate, ‘Traffic Bill’, 8 December 1926, 5; Coffs Harbour Advocate, ‘Woolgoolga Road. Claim for Compensation’, 20 July 1928, 4; Telegraph, ‘Damages Awarded. Sequel to Traffic Accident’, 4 December 1929, 9; Western Argus, ‘Traffic Acidents(sic). Compensation for Victims’, 26 May 1931, 24; Telegraph, ‘Traffic Bill. Compulsory Insurance?’, 20 November 1931, 2; Argus, ‘Traffic Accidents. Victorian Statistics for 1931’, 27 February 1932, 25; Southern Mail, ‘Traffic Cases’, 18 November 1932, 2; Newcastle Morning Herald and Miners’ Advocate, ‘English Road Traffic’, 11 September 1933, 3; Argus, ‘Reducing Traffic Accidents’, 1 November 1935, 11; Courier Mail, ‘£5! Extraordinary! Judge Criticises Award. Sequel to Traffic Accident’, 6 December 1935, 12; News, ‘Compulsory Insurance Proposal is Not Comprehensive Cover. Benefits Limited After Accident. No Compensation for Damage’, 25 May 1936, 8; Queensland Times, ‘Wivenhoe Accident. Damages of £91/11/ Allowed. Cars Meet in Cutting’, 31 July 1937, 6; News, ‘Motor Cyclist Awarded £4,830. Judge Explains His Finding; Damages Heaviest Given Here’, 1 October 1937, 1; Sydney Morning Herald, ‘Traffic Disorders’, 16 December 1937, 10; Barrier Miner, ‘Claim for Compensation’, 15 May 1940, 3; Windsor and Richmond Gazette, ‘Accident Sequel. Motor Driver Before Court. To Pay £5 Compensation’, 24 May 1940, 10.
217 these being relatively common in both Britain170 and Australia.171 There were also other newspaper articles concerning nervous shock, discussing the condition in an attempt to explain the phenomenon,172 or attempting to provide an outline of the law relating to claims for damages.173 One such article in the New South Wales Farmer and Settlor dated 23 May 1924 discusses the importance of obtaining motor vehicle insurance:
Almost every day we read accounts of some kind of accident or another to cars and motor bicycles; some of these have been caused by the carelessness of the drivers, some by the
170 See, eg, Aberdeen Press and Journal, ‘Doctor’s Accident’, 24 October 1925, 7; Bellshill Speaker, ‘Street Collision’, 18 March 1927, 5; Eastbourne Gazette, ‘Shock of Husband’s Death Echo of Brooklands Racing Fatality’, 27 June 1928, 23; Northern Whig, ‘A Miraculous Escape’, 11 December 1929, 7; The Evening Telegraph, ‘Scots Road Crash. Damages Claim at Court of Session’, 2 March 1933; 4; The Daily Mail, ‘French Crash Survivors Lived on Biscuits for Six Days’, 29 April 1933; The Yorkshire Post, ‘Noise of Street Collision. Sick Man in Bed Claims Damages’, 5; 28 July 1936; The Scotsman, ‘Unusual Action. Shock Caused by Loud Noise. Claim for Damages Fails’, 28 July 1936, 7; The Scotsman, ‘Action for £2,000 Damages at Cupar’, 4 December 1936, 9; Western Daily Press, ‘£2,500 for Insurance Inspector’, 11 June 1937, 8; Sheffield Independent, ‘Awarded £900’, 28 October 1937, 5; The Scotsman, ‘Edinburgh Family in Accident’, 4 December 1937, 16; Aberdeen Press and Journal, ‘Weeping Mother’s Evidence. Child Killed in Tarves Street Mishap’, 6 December 1938, 5; Sunderland Daily Echo and Shipping Gazette, ‘£200 for Injuries’, 1 March 1939, 9; Nottingham Evening Post, ‘Nottingham Child’s Injuries’, 8 November 1939, 6; The Evening Telegraph, ‘Fell to Death from Train’, 11 August 1939, 7; Croydon Advertiser and East Surrey Reporter, ‘Hurt in Crash’, 17 November 1939, 7; Manchester Evening News, ‘Walk Again’, 20 September 1940, 1; Dundee Courier, ‘Saw Fatal Crash. Sues for £1,250’, 4 December 1940, 3. 171 See, eg, Border Watch, ‘Holiday Train Derailed’, 3 January 1928, 1; Advertiser, ‘South-Eastern Railway Accident. A Passenger Train Derailed’, 3 January 1928, 13; South Eastern Times, ‘A Holiday Sensation. Passenger Train Wrecked’, 3 January 1928, 3; Register, ‘South-East Train Smash. Beachport ‘Special’ Off the Line’, 3 January 1928, 9; Times and Northern Advertiser, ‘Fatal Railway Accident. Fireman Phil Middleton Killed. Engine & Ten Trucks Fall Into Creek’, 17 February 1928; The Western Morning News and Daily Gazette, ‘Bere Alston Woman’s Death’, 4 March 1932, 4; Advertiser, ‘Injured Pedestrian Awarded Damages’, 27 October 1932, 9; Mercury, ‘Street Traffic’, 7 September 1936, 6; Sydney Morning Herald, ‘Nervous Shock. Verdict for £750. Against the Tramways’, 10 September 1936, 9; Northern Miner, ‘Nervous Shock From Accident. Woman Awarded Damages’, 11 September 1936, 2; Western Star and Roma Advertiser, ‘Claim for £200 Damages. Wheatley v Commissioner for Railways’, 26 May 1937, 4; Daily Advertiser, ‘Dangerous Practice. Riding Unlighted Bicycles. More Prevalent in Wagga’, 5 April 1944, 2. There are many more examples of stories of nervous shock suffered due to involvement in an accident which can be found in both Britain and Australia from this period of time. 172 See, eg, Farmer and Settler, ‘The Motor Age. Importance of Inquiry. Safety First’, 23 May 1924, 14; Northampton Mercury, ‘Nervous Shock’, 29 May 1939, 15; Cairns Post, ‘“Shock” Unpleasant Consequences’, 5 October 1938, 10; The Birmingham Post, ‘War Time Fear is Natural. But it Must be Controlled’, 18 March 1942, 2. 173 See, eg, Examiner, ‘Nervous Shock Has Status in Law Actions for Damages’, 14 July 1936, 8; Sydney Morning Herald, ‘Local Government. Claims Against Councils. Nervous Shock’, 20 April 1939, 4; Port Macquarie News and Hastings River Advocate, ‘Local Government. Claims Against Councils. Nervous Shock’, 20 May 1939, 8; News, ‘Position and Law Arising From Nervous Shock’, 8 November 1939, 6.
218
negligence of other people, and very many others may be attributed to unforeseen circumstances.174
This article outlines the claims which can be made against a negligent motorist where loss has been caused to another, noting in particular that loss such as nervous shock can be caused even where there is no actual collision between motor vehicle and the person claiming.175 Another article, this one in the Cairns Post on Wednesday 5 October 1938, begins: ‘That mysterious affection, “shock”, is coming more and more into the news.’176 On the causes of ‘shock’, the article states:
There are several kinds of shock, but in the end they all work through the same channel; that is, through the thalamus, the brain’s clearinghouse for all sensation, and thence by the sympathetic nervous system and the ductless glands associated with it.177
The article goes on to warn of the seriousness of the symptoms of shock notwithstanding the absence of physical injury: ‘Accidents that do little real bodily damage may produce the most devastating effects entirely through psychological effects.’178 The article continues: ‘If you are knocked down by a bus, for example, it is much better to have a broken leg than to get off with bad bruises and a shaking.’179 This is because:
Unless you are a psychological ‘tough,’ the latter may leave you incapacitated with chronic pains in the back, inability to concentrate, fear of walking alone in the street, and headaches which no doctor can cure.180
The condition was also apparently sufficiently well-known during this period for advertisements to regularly appear selling medication claiming to offer relief from its symptoms. One such advertisement in The Sunderland Daily Echo and Shipping Gazette published on 4 October 1934 and titled ‘Worry is a disease. Are you a Victim?’ states: ‘The
174 See, Farmer and Settler, ‘The Motor Age. Importance of Inquiry. Safety First’, 23 May 1924, 14. 175 Ibid. 176 Cairns Post, ‘“Shock” Unpleasant Consequences’, 5 October 1938, 10. 177 Ibid. 178 Ibid. 179 Ibid. 180 Ibid.
219 disorder which causes its victims to worry, whether they have anything to worry about or not, is called neurasthenia.’181 The advertisement, espousing the virtues of Dr Williams Brand Pink Pills – costing 1 shilling and 3 pence a box – goes on to state that ‘Neurasthenia is exhaustion of the nerves, the prime causes of which are ‘mental or physical strain, a nervous shock, anxiety or grief.’182 The symptoms of this condition are said to include ‘severe depression, irritability, sleeplessness, general weakness and headaches.’183 A number of similar advertisements in the newspapers can be found from this period of time for such medical treatments.184
Taking into account the general caution which should be exercise in relation to claims based on inferential reasoning alone,185 the evidence considered above seems to support the argument that the general public may well at the time have been aware of the risk of some type of mental disorder resulting from close physical proximity to and perception of a terrifying motor vehicle accident. If this argument is accepted, there was no reason in principle to treat Mrs Bourhill’s psychiatric injury any differently at law from any injury which was well-understood by the general community to be causally related to particular actions or events.
181 The Sunderland Echo and Shipping Gazette, 4 October 1934. 182 Ibid. 183 Ibid. The same advert appeared in subsequent issues of the The Sunderland Daily Echo and Shipping Gazette (eg, on 1 November 1934) as well as in other newspapers in Britain: see, eg, Banbury Advertiser, 1 November 1934, 3; Hartlepool Daily Mail, 1 November 1934, 6; Northampton Mercury, 2 November 1934, 12. 184 See, eg, Sunderland Daily Echo and Shipping Gazette, ‘Pain in Back. Nervous Shock Neuritis’, 28 January 1937, 6 (advertisement for Dr Cassell’s Tablets); Yorkshire Evening Post, ‘Pain in Back. Nervous Shock Neuritis’, 29 January 1937, 7 (advertisement for Dr Cassell’s Tablets); Lankashire Evening Post, ‘Pain in Back. Nervous Shock Neuritis’, 3 February 1937, 3 (advertisement for Dr Cassell’s Tablets); Kirkintilloch Herald, 16 February 1944, 2 (advertisement for Dr Niblett’s Vital Renewer Nerve Sedative); Staffordshire Advertiser, 15 April 1944 (advertisement for Dr Niblett’s Vital Renewer Nerve Sedative); Evening Despatch, 15 May 1944, 4 (advertisement for Dr Niblett’s Vital Renewer Nerve Sedative); Perthshire Advertiser, 4 November 1944, 14 (advertisement for Dr Niblett’s Vital Renewer Nerve Sedative); Bedfordshire Times and Independent, 10 November 1944, 10 (advertisement for Dr Niblett’s Vital Renewer Nerve Sedative); Southern Reporter, 15 March 1945, 2 (advertisement for Dr Niblett’s Vital Renewer Nerve Sedative); Arbroath Herald and Advertiser for the Montrose Burghs, 6 April 1945, 2 (advertisement for Dr Niblett’s Vital Renewer Nerve Sedative); Diss Express, 13 April 1945, 7 (advertisement for Dr Niblett’s Vital Renewer Nerve Sedative). 185 See above at section 5.2.2.
220
6.3.2 Corrective justice analysis of Bourhill
Like the decision in Chester the decision in Bourhill has been criticised on the ground that the finding that psychiatric injury to the claimant was unforeseeable was perhaps merely a smokescreen to find against her on policy grounds.186 Consideration of whether the claimant was in the area of physical danger has also attracted scholarly criticism on the basis that like the requirement for physical impact, it is arbitrary. In particular, the criticism is that this consideration applies a standard which is relevant only to cases involving fear of death or physical injury to oneself to cases involving injury or death to another.187 Clearly though, ‘self- preservation is not the only natural human instinct.’188 The test of reasonable foreseeability employed by the House of Lords in Bourhill has also been critically examined, it being argued that the test was not underpinned by a formal inductive process.189 This might explain why the question of whether the claimant was at risk of physical danger herself was considered by the Law Lords to be relevant notwithstanding that this factor was only scientifically relevant to cases of psychiatric injury resulting from fear for one’s own safety.190
The decision of the House of Lords in Bourhill that the claimant was not owed a duty of care is inconsistent with the corrective justice approach advanced in Part II, considering the importance given by the Law Lords to the arbitrary considerations of whether the claimant was in physical danger and whether she was able to see the moment of the accident. This may simply have been a miscalculation of the ordinary person’s ability to appreciate the risk of psychiatric injury as a result of exposure to the trauma experienced by the claimant, or the Law Lords may have used the assessment of reasonable foreseeability to conceal a decision based
186 See, eg, Peter Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (Lawbook Co, 2nd ed, 2006) 130. 187 See, eg, Dillon v Legg 69 Cal Rptr 72, 441 P 2d 912 (1968) (Cal), 915; Toms v McConnell 45 Mich App 647, 207 NW 2d 140 (1973) (Mich), 144. For further discussion of this point, see: Des Butler, ‘Managing Liability for Bystander Psychiatric Injury in a Post-Hill v Van Erp Environment’ (1997)13 Queensland University of Technology Law Journal 152, 159-60; Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 89. 188 See Peter Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (Lawbook Co, 2nd ed, 2006) 6. 189 See Des Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 78-83. 190 Ibid 81.
221 on policy reasons. However, as with the reasoning of the majority in Chester,191 the importance given by the Law Lords to these arbitrary factors ultimately meant that the decision placed an unprincipled limit on liability.
Mrs Bourhill’s case is a good example of the denial of what was seemingly a deserving claim as a result of an under-inclusive requirement of having to directly see the exact moment of an accident occurring. The requirement of sight, being an arbitrary consideration, also risks being over-inclusive. Suppose, for example, that after speeding carelessly towards the intersection, the defendant in Bourhill was instead able to slow down to a complete stop at the place of the accident, but then fell off his motorbike onto the road after suffering a heart attack and died, which was caused by the stress of his careless driving. In this hypothetical example, it would not likely have been appreciable at either a scientific or community understandings level that the claimant was at risk of suffering psychiatric injury as a result of witnessing such an event. Sight of such an incident would not make the risk of psychiatric injury to the claimant any more appreciable than it was in the absence of sight, because of the nature of the incident itself. In this example, the consideration of whether the claimant saw a particular phenomenon would not only be irrelevant to the question of moral responsibility for causing harm to another, but might also potentially influence an undeserving and unjust finding of liability.
The requirement that the claimant herself be in the area of potential physical danger, being arbitrary, was also potentially under and over-inclusive. Consider again the hypothetical example above involving the defendant falling off his motorbike due to suffering a heart attack. However, in addition to the hypothetical facts given above, suppose also that Mrs Bourhill was not behind the tram when the defendant rode his motorcycle towards the intersection, but was in fact in front of the tram and in physical danger as a result. In this example, the claimant might be able to satisfy the requirement that she was in physical danger – as well as the requirement that she directly see a particular phenomenon – with these findings having the potential to influence a finding of liability. However, a finding of liability in such a situation would not likely be just from the perspective of corrective justice, as psychiatric injury to a claimant in this type of circumstance would not likely be appreciable at either an expert or common understandings level. Consequently, neither of these considerations is morally justifiable as part of a system of corrective justice. Neither rule links the defendant’s
191 See above at section 6.2.2.
222 wrongdoing with the psychiatric injury of the claimant. Both make arbitrary distinctions between claimants, and do not provide sufficient reasons to allow or to deny claims.
By comparison, the relevance to Lords Wright and Porter of whether psychiatric injury would have been suffered by a person of ordinary fortitude when considering what a reasonable man ought to have foreseen was consistent with the corrective justice approach advanced in Part II. The ‘normal fortitude’ doctrine, as it went on to be subsequently labelled, was used by Phillimore J in Dulieu when he suggested that the duty of care should be limited to a standard of normal susceptibility.192 In discussing this notion in Dulieu, Phillimore J referred with approval to the following passage from Spade in which the court stated:
Not only the transportation of passengers and the running of trains, but the general conduct of business and of the ordinary affairs of life must be done on the assumption that persons who are liable to be affected thereby are not peculiarly sensitive and are of ordinary physical and mental strength. If, for example, a traveller is sick or infirm, delicate in health, specially nervous or emotional, liable to be upset by slight causes, and thereby requiring precautions which are not usual or practicable for travellers in general, notice should be given, so that, if reasonably practicable, arrangements may be made accordingly and extra care be observed. But, as a general rule, a carrier of passengers is not bound to anticipate or to guard against an injurious result which would only happen to a person of peculiar sensitiveness.193
It is in this context that Phillimore J’s judgment implied that a duty between users of the highway was owed only to those of a so-called ‘normal’ level of susceptibility – to someone between ‘an inexperienced and elderly country woman…[and] an experienced and cool citizen, the ideal vir constans’. This notion was subsequently considered to be an important notion by courts in Scotland and Australia.194
192 Dulieu v White & Sons [1900] All ER Rep 353. 193 Spade v Lynn and Boston Railroad Co (1897) 60 Am St Rep 393: cited in Dulieu v White & Sons [1900] All ER Rep 353, 362. 194 Dulieu v White & Sons [1900] All ER Rep 353, 362. See, eg, Walker v Pitlochry Motor Company 1930 SC 565, 569 (Lord Mackay); Bunyan v Jordan (1936) 36 SR (NSW) 350, 345- 55 (Jordan CJ); Bunyan v Jordan (1937) 57 CLR 1, 14 (Latham CJ), 18 (McTiernan J): Des Butler, Susceptibilities to Nervous Shock: Dispensing with the Mythical “Normal Person”’ (1997) 1 Macarthur Law Review 107, 109.
223
This limitation was originally introduced in order to exclude from liability those who were particularly predisposed to psychiatric illness caused by a shocking event.195 Writing in 1915 in relation to the interest in personality protected by law, Roscoe Pound stated that where a claimant ‘so far as he could reasonably foresee, does nothing that would work an injury, the individual interest of the unduly sensitive or abnormally nervous must give way.’196 It should be recognised that there is disagreement as to whether this doctrine does or does not reflect underlying medical realities relating to the causation of psychiatric illness.197 It should also be understood that there are some subtle variations in interpretation of the doctrine which need to be taken into consideration.
The normal fortitude rule has been given at least two broad interpretations. First, it has been considered a requirement separate to the question of whether psychiatric injury to the claimant was reasonably foreseeable. In this form, the rule is generally taken to have the effect of barring liability unless the claimant can show that they are not unusually susceptible to suffering psychiatric injury.198 Second, it has been considered an issue relevant to an overriding test of
195 See Danuta Mendelson, ‘The Defendant’s Liability for Negligently Caused Nervous Shock in Australia – Quo Vadis’ (1992) 18 Monash University Law Review 16, 19; Wilkinson v Downton (1897) 2 QB 57. Mendelson noted that the law’s concern with establishing that the claimant was a person of normal fortitude may have originated from the belief commonly held by neuropsychiatrists at around the end of the nineteenth century that only those predisposed to suffering neurosis would later go on to suffer that condition. However, those views changed following the First World War when medical professionals took notice of the psychological effects of traumatic stress of those not so predisposed: at 56. 196 Roscoe Pound, ‘Interests of Personality’ (1915) 28 Harvard Law Review 343, 362. 197 For example, Butler has argued that this doctrine does not reflect medical reality as every person’s susceptibility to psychiatric injury is different (referring to Waller J in Chadwick v British Transport Commission [1967] 1 WLR 912, 922): Des Butler, ‘Susceptibilities to Nervous Shock: Dispensing with the Mythical ‘Normal Person’’ (1997) 1 Mac L R 107, 119- 21. On the other hand, Mendelson has claimed that this doctrine does reflect medical reality, since the predisposition to psychiatric disorders affects medical questions of causation (known as aetiology). For further discussion of this point, see Des Butler, ‘Gifford v Strang and the New Landscape for Recovery for Psychiatric Injury in Australia’ (2004) 12 Torts Law Journal 1, 11-3; Des Butler, ‘Susceptibilities to Nervous Shock: Dispensing with the Mythical ‘Normal Person’’ (1997) 1 Mac L R 107, 114-7; Des Butler, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury Resulting from Negligence’ (2002) 10 Torts Law Journal 1, 3; Danuta Mendelson, ‘The Defendant’s Liability for Negligently Caused Nervous Shock in Australia – Quo Vadis’ (1992) 18 Monash University Law Review 16, 24-5, 56-9. One of the key points made in this thesis is that if the law is understood as being underpinned by corrective justice and Kantian right, it is not only medical reality which the relevant doctrines of law ought to reflect. Rather, the law ought also to recognise that the crucial matter relating to the underlying morality of the law, and therefore to liability, is appreciability of harm. 198 Peter Handford, Mullany & Handford’s Tort Liability for Psychiatric Damage (Lawbook Co, 2nd ed, 2006) 315-6.
224 reasonable foreseeability.199 In the second form, the rule operates as one of a number of non- determinative ‘considerations’ impacting upon the test of reasonable foreseeability. In this form, the claimant can still show that psychiatric injury to them was reasonably foreseeable notwithstanding that they might in fact be a person who is unusually susceptible to psychiatric injury, particularly where the defendant has specific knowledge of this susceptibility.200
It is arguable that as a condition in addition to the requirement that psychiatric injury must have been reasonably foreseeable, the normal fortitude consideration is unprincipled and unjust. This is because a claimant can have been subjected to a wrong by a defendant which is capable of causing reasonably foreseeable psychiatric injury, notwithstanding that the action in question was not sufficient to cause injury to a person of normal fortitude. This might occur if the defendant is aware of the claimant’s vulnerability to this injury and acts in a way which causes an injury to the claimant because of this vulnerability. If the consideration operates to bar liability in such a situation, it is inconsistent with the formal equality of the parties, placing an arbitrary and unprincipled limit on the claimant. As a matter of liability (rather than of compensation),201 the wrong of the defendant should not be excused simply because the claimant is less robust than is common.
On the other hand, the test in the second form is not only consistent with corrective justice, but is required by it. The question of whether a person of normal fortitude would have suffered psychiatric injury as a result of the defendant’s actions is relevant to whether the risk of
199 After Bourhill, the test went on to be applied in both forms. It was applied in the first form by Brennan J in Jaensch v Coffey (1984) 155 CLR 549, 572, and in the second form by the majority of the High Court in Tame v New South Wales (2002) 211 CLR 317, 333[16] (Gleeson CJ), 343[61] (Gaudron J), 385[201] Gummow and Kirby JJ). This will be discussed below in chapters 8 and 9. The test in the first form is also now enshrined in legislation in a number of states and territories in Australia, which will be discussed in further depth in chapter 9. 200 Butler has argued that the normal fortitude test is a test ‘without specific content’: Des Butler, ‘Susceptibilities to Nervous Shock: Dispensing with the Mythical ‘Normal Person’’ (1997) 1 Macarthur Law Review 107, 121. Interpreted as a test within the overriding test of reasonable foreseeability makes the test too easy to satisfy according to Butler, whereas considered as operating outside of the reasonable foreseeability test, it lacks a satisfactory mechanism for determining who is and who is not a person of normal fortitude. Butler has argued that there are at least three ways of determining this issue in court, each of which is potentially problematic, i.e., by relying on medical evidence, intuitive judgment of medical experts, or on the judge’s intuitive judgment that the person was a person of particular susceptibility: Des Butler, ‘Gifford v Strang and the New Landscape for Recovery for Psychiatric Injury in Australia’ (2004) 12 Torts Law Journal 1, 11. This is discussed further in chapter 8 in relation to the High Court’s decision in Tame v New South Wales (2002) 211 CLR 317. 201 Which would bring into consideration the egg-shell skull rule.
225 psychiatric injury to the claimant was commonly appreciable. Despite the attendant problems associated with postulating a scientifically ‘normal’ level of susceptibility, this doctrine, when framed in the appropriate way, operates to maintain the transactional equality between the parties by setting the norm against injuring at a point which treats the interests of the parties as being of equal importance. By asking whether psychiatric injury was appreciable at a community understandings level when considering whether psychiatric injury to the claimant was reasonably foreseeable, the standard of understanding and resulting behaviour required of the defendant by the law is no more than is commonly held in the community. The normal fortitude rule, as a matter relevant to this question, ensures that the norm does not place too heavy a burden on defendants as to result in an inequality between the parties. As such, the defendant is not required to perceive risk which cannot commonly be perceived by the general public.
Importantly, Lords Wright and Porter both expressed the test in terms that were consistent with this approach. Lord Wright stated:
This [an ordinary standard of susceptibility], it may be said, is somewhat vague. That is true; but definition involves limitation which it is desirable to avoid further than is necessary in a principle of law like negligence which is widely ranging and is still in the stage of development. It is here, as elsewhere, a question of what the hypothetical reasonable man, viewing the position, I suppose ex post facto, would say it was proper to foresee. What danger a particular infirmity that would include must depend on all the circumstances; but generally, I think, a reasonably normal condition, if medical evidence is capable of defining it, would be the standard. The test of the plaintiff’s extraordinary susceptibility, if unknown to the defendant, would in effect make the defendant an insurer. The lawyer likes to draw fixed and definite lines and is apt to ask where the thing is to stop. I should reply it should stop where in the particular case the good sense of the jury, or of the judge, decides.202
Lord Porter took a similar position, although expressed in terms that were perhaps of their time:
It is not every emotional disturbance or every shock which should have been foreseen. The driver of a car or vehicle even though careless is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to ensure such incidents as may from time to time be expected to
202 Ibid 405-6.
226
occur in them, including the noise of a collision and the sight of injury to others, and is not to be considered negligent towards one who does not possess the customary phlegm.203
The normal fortitude doctrine, when considered as a matter relevant to an overriding test of reasonable foreseeability – as it was by Lords Wright and Porter – is principled because it anchors liability to community understandings of the perception of risk. The test in this form operates to ensure that the claimant is not expected – as a matter of interpersonal morality – to be able to appreciate the risk of psychiatric injury to another which would not be appreciable to anyone else in the community as a matter of general knowledge. Conceived of in this way, this doctrine attempts to set the norm against injuring at a point which balances the defendant’s right to freedom of action with the claimant’s right to psychological integrity, regarding both as being of equal value in the eyes of the law. In circumstances where the defendant has particular knowledge of the claimant’s unusual susceptibility, psychiatric injury to the claimant may still be found to be reasonably foreseeable, notwithstanding that they may not be a person of ordinary fortitude. In this sense, the normal fortitude consideration has much in common with the community understandings test proposed in this thesis, with both of these mechanisms operating to ensure that both claimants and defendants are given the maximum amount of freedom possible that is consistent with the freedom of all others.
6.4 Conclusion
On the basis of the arguments above that the risk of psychiatric injury to both claimants was likely appreciable as a matter of community understandings and expectations,204 it is arguable that the right to physical and psychological integrity had since Hambrook again expanded by the time of these cases, this justifying a correlative duty of care being imposed on each of the defendants.205 The failure to find a duty in both cases can therefore be understood as unjust.206
203 Ibid 409. 204 See sections 6.2.1 and 6.3.1. 205 See the theoretical argument above at section 4.3.3, and the arguments at sections 6.2.2 and 6.3.2. 206 As such, it may be argued that the analysis in this chapter does not support the second primary hypothesis of this thesis, save for Evatt J’s dissenting judgment in Chester: see section 1.4.
227
By comparison with the law applied by the courts in these cases, application of the approach advanced in Part II207 would not only have suggested that liability be found in both cases, but would also have suggested a principled basis on which to find principled limitations on the ambit of that liability in each case.208 Application of the corrective justice approach based on common understandings would have suggested at the time of Chester that in cases where a child was killed in unexpected and distressing circumstances by the defendant’s negligence, no requirement be placed on the parent to show that they directly perceived the moment of the child’s death. However, rather than resulting in limitless liability, this approach also suggested as a matter of principle that liability in such cases be limited only to those cases in which the claimant and the person killed were in relationship which was of the very closest kind.209
Importantly, Evatt J’s dissenting judgment in Chester was a very good example of an approach which was consistent with approach advanced in Part II in cases involving death of a loved one.210 This approach considered only whether the risk of psychiatric harm to the claimant was appreciable to the ordinary member of the public, and in painting such a vivid picture of what the claimant likely experienced, gave full attention to this question. It is significant that it is Evatt J’s dissenting judgment in Chester which has ultimately proved to be the more influential approach in Australia, at least in cases involving death of a loved one.211 His Honour’s powerful judgment – which has since been endorsed by the Australian High Court in Annetts v Australian Stations Pty Ltd212 – has been described by Lord Bridge of Harwich in McLoughlin v O’Brian213 as ‘wholly convincing’.214 It has also been said of Evatt J’s judgment that it is a
207 Presented in section 4.4. 208 See the analysis above at sections 6.2.2 and 6.3.2. This supports the theoretical argument presented in section 4.4. 209 See the discussion above at section 6.2.1, as well as the argument at section 5.5.1 upon which this discussion was partially based. 210 Discussed at section 6.2.2. 211 See Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 144; Peter Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (Thomson, 2nd ed, 2006) 326-7. 212 (2002) 211 CLR 317. 213 [1982] 2 All ER 298. 214 Ibid 317.
228
‘powerful…and totally convincing judgment’,215 which is ‘plainly to be preferred to that of the majority’.216
By contrast, application of this approach to a case such as Bourhill suggested that the claimant not be required to show that they were in such a close and loving relationship with the person killed by the defendant’s negligence.217 Application of this approach would also not have resulted in limitless liability in cases involving death of a stranger, as the test also suggested as a matter of principle that liability be limited only to those claimants who had been directly exposed in some way to overwhelming trauma.218 The principles justifying liability themselves suggested that much more scrutiny of what the claimant actually perceived was appropriate in cases involving death of a stranger as a matter of principle, this being relevant to whether the defendant had wronged the claimant.
This chapter has continued the analysis of leading cases commenced in chapter 5, further addressing the second primary hypothesis in this thesis. Two archetypally different cases occurring at roughly the same point in history have been considered in this chapter. The first, Chester, involved a claim arising out of the death of someone with whom the closest bonds of love and affection existed, a child. The second, Bourhill, was a claim arising out of the death of a complete stranger. It has been argued in this chapter that save for Evatt J’s judgment in Chester, neither of these cases are consistent with the corrective justice approach advanced in Part II.
In the following chapter, Mount Isa Mines Ltd v Pusey219 and Jaensch v Coffey220 are considered. In the time between Chester and Bourhill and these latter cases, further significant scientific advances were made regarding understandings of the causes of mental disorders. One of the most important precipitating factors behind this was the onset of World War II and the Vietnam War, both of which generated a great deal of interest in furthering scientific understandings. Importantly, the decisions in Pusey and Jaensch would continue the early
215 See Allcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 328 (Hidden J). 216 See Jaensch v Coffey (1984) 155 CLR 549, 590-1 (Deane J); Peter Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (Thomson, 2nd ed, 2006) 326, fn 95. The influence of Evatt J’s judgment will be discussed in the remaining chapters. 217 See sections 6.3.1 and 6.3.2. 218 See discussion above at section 6.3.1. 219 (1970) 125 CLR 383. 220 (1984) 155 CLR 549.
229 threads of corrective justice seen in Dulieu and in Hambrook, as well as in Evatt J’s dissenting judgment in Chester. Pusey and Jaensch would provide further indication that Chester and Bourhill would ultimately be regarded as backward-looking and out of touch with community standards.
230
Chapter 7: Analysis of Leading Common Law Cases: Pusey and Jaensch – Continued Expansion of the Right to
Physical and Psychological Integrity
7.1 Introduction
The decisions in Chester and Bourhill might have suggested that the gradual expansion of liability which had been seen in the early cases of Dulieu and Hambrook would not be continued into the latter half of the twentieth century. However, the High Court decisions in Mount Isa Mines Ltd v Pusey1 and Jaensch v Coffey,2 decided in 1970 and 1984 respectively, would reignite this early progress, fuelled in no small part by two major armed conflicts, World War II and the Vietnam War. These two wars drove interest in further developing understandings within psychiatric medicine, for the purpose not only of improving treatment options and efficacy for those who had suffered psychiatric injury as a result of exposure to trauma, but also to reduce the number and severity of soldiers suffering such injuries as a result of their experiences participating in battle.
This chapter continues the examination of leading common law cases, presenting analysis of Pusey and Jaensch. These cases presented the High Court with fact situations which would suggest that there was a reasonable chance that liability would be denied, at least based on the findings in Chester and Bourhill. In particular, neither claimant in Pusey and Jaensch saw the accident involving another person, which might have suggested that there was little to distinguish these cases in principle from Chester and Bourhill. However, in both Pusey and Jaensch, the High Court found for the claimant, making the law consistent with prevailing understandings of the causes of mental disorders within psychiatric medicine and the general community. Accordingly, this chapter will demonstrate that the early threads of corrective justice seen in the early cases analysed in chapter 5 were continued in Pusey and in Jaensch.
1 (1970) 125 CLR 383 (‘Pusey’). 2 (1984) 155 CLR 549 (‘Jaensch’).
231
7.2 Mount Isa Mines Ltd v Pusey (1970)3
The case of Pusey came before the Australian High Court in 1970. The claimant Mr Pusey suffered psychiatric injury as a result of what he witnessed going to the assistance of fellow employees who had been horrifically burnt due to electrical shock caused by the defendant employer’s negligence. A few days later, the claimant learned of the death of one of the people he went to rescue due to the injuries he sustained, and around four weeks after the accident, he developed severe psychological symptoms. The existence of an employment relationship between the parties as well as the scenes of horror to which the claimant was exposed gave the High Court reason to treat Mr Pusey’s claim differently than the claimants had been treated in both Chester and Bourhill.
Pusey is doctrinally significant for three particular reasons. First, the High Court held that the claimant was owed a duty of care based on the finding that it was reasonably foreseeable that an employee of the defendant might suffer burns by electrocution when handling dangerous electrical equipment.4 It was also reasonably foreseeable that fellow employees would subsequently go to the scene of such an accident to render assistance and thereby suffer mental disturbance by what they there witnessed.5 This suggested that when the claimant and defendant were in the relationship of employer and employee the test of reasonable foreseeability was sufficient to determine the duty of care.
Second, Pusey demonstrated that the quality of the relationship between the claimant and the person injured or killed will be a less important factor when the claimant directly perceives scenes of horror, as psychiatric injury can nevertheless be reasonably foreseeable in such circumstances. The third doctrinally significant aspect of Pusey relates to the character of the requisite damage. As a result of the accident, the claimant suffered a ‘serious mental disturbance’6 which developed into ‘a profound psychiatric disability broadly comprehended in the term “schizophrenia”.’7 This was a relatively unusual psychiatric disorder to suffer as the result of exposure to trauma. The High Court found that reasonable foreseeability of the
3 (1970) 125 CLR 383. 4 Ibid 389-90 (Barwick CJ), 391 (McTiernan J), 393 (Menzies J), 401 (Windeyer J), 410, 411, 413-4 (Walsh J). 5 Ibid. 6 Ibid 387 (Barwick CJ). 7 Ibid.
232 exact psychiatric injury suffered by the claimant was not necessary. Rather, it was sufficient if the claimant could show injury of the same kind that was reasonably foreseeable.8
There were a number of relevant legal authorities for the High Court in Pusey to draw upon. In particular, there were some further legal developments after Chester and Bourhill which seemed to confirm the narrower view represented by these cases. King v Phillips9 involved a claim by a mother who suffered psychiatric injury as a result of the negligence of the defendant in apparently running over her small child. The defendant reversed his taxi into the child who was on his tricycle behind the car. Although the child was not seriously injured in the accident, the claimant heard him scream, and looking out of her window some 70 or 80 yards away, feared for the worse as she saw his tricycle crushed beneath the wheels of the defendant’s car. She ran out into the street in a panic and there discovered her child was not seriously injured, but suffered shock leading to injury nonetheless from the fear that he had been injured or killed. Singleton and Hodson LJJ in the Court of Appeal found that if no duty was owed to the claimant in Bourhill, no duty could be found to exist in this case.10 A duty was owed to the child, but not to the mother who was not on the highway at the time of the accident.11 Whilst referring with approval to Atkin LJ’s judgment in Hambrook, this case was distinguished on the ground that the claimant in Hambrook was on the highway close to the accident site.12
On the other hand, Denning LJ regarded the issue as being one of remoteness.13 Following the decision in Hambrook, his Honour held that the defendant owed a duty of care not only to the child but also to the mother. The claimant in King was closer to the accident than the claimant in Hambrook, neither claimant was in danger, and both suffered injury by shock as a result of fears for the safety of their child from what they saw and heard.14 It also made no difference to Denning LJ that the claimant in King was in her house whilst Mrs Hambrook was on the street.15 However, his Honour distinguished Hambrook from King on the basis that the accident
8 Ibid 390 (Barwick CJ), 391-2 (McTiernan J), 393 (Menzies J), 402-3 (Windeyer J), 413 (Walsh J). 9 [1953] 1 All ER 617. 10 Ibid 619-20 (Singleton LJ), 625 (Hodson J). 11 Ibid 619-20. 12 Ibid 619-20. 13 Ibid 623. 14 Ibid 623. 15 Ibid.
233 in the present case was slow, whilst in Hambrook it was terrifying.16 Denning LJ held that the defendant could not reasonably have foreseen that the claimant would suffer injury by shock as a result of this accident, and as a result, the claimant’s injury was too remote to be compensable.17
The decision in King did not seem to support Mr Pusey’s claim regardless of whether it was to be decided on the issue of duty or on the issue of remoteness. Like Chester and Bourhill, King seemed to place importance on whether the claimant appreciated the accident at the very point in time it occurred. As Mr Pusey had come to the scene of the accident after it had occurred, it would seem that his claim might not be supported by these authorities. However, an Australian case involving an accident only a few years before Mr Pusey’s accident seemed to suggest that there could be liability in such a situation. A little over a decade after King, the case of Storm v Geeves18 came before a single judge of the Supreme Court of Tasmania involving archetypally tragic circumstances in claims for negligently inflicted psychiatric injury.
In Storm, the claimants were the mother and the young brother of a little girl killed due to the negligent driving of the defendant. The girl was waiting outside her house for a bus, and the defendant’s negligent driving of his truck resulted in the child being struck and killed. The girl’s young brother, who saw the event, ran immediately into the house to alert his mother. The girl’s mother, upon hearing the distressing news, rushed immediately out of the house to be confronted with the horrific scene. The mother and son also endured the pain of witnessing attempts for over an hour to remove the child from underneath the tyre of the truck, both
16 Ibid 624. 17 Ibid. The decision in King was criticised at the time. In scholarly commentary from the same year as King, AL Goodhart perceptively criticised the requirement by the court of factors having a bearing on the risk of physical injury rather than psychiatric injury:
A woman standing at the window of a second-floor room is just as likely to receive a shock when witnessing an accident as she would be if she were standing on the pavement. To say that a careless driver of a motor-car could not reasonably foresee such a self-evident fact is to hide the truth behind a fiction which must disappear as soon as we examine it. The driver obviously cannot foresee that the woman at the window will receive a physical injury, but it does not follow from this that he cannot foresee that she will receive a shock. As the cause of action is based on shock it is only foresight of shock which is relevant: AL Goodhart, ‘The Shock Cases and Area of Risk’ (1953) 16 Modern Law Review 14, 22; referred to with approval by Lord Edmund-Davies in McLoughlin v O’Brian [1982] 2 All ER 298, 305.
18 [1965] Tas SR 252.
234 suffering psychiatric injury as a result. Finding for the claimants, Burbury CJ found that it was foreseeable that a child would be stood on the road where she was, at the time she was, that it was foreseeable that she would be run over by negligent driving, and that psychiatric injury to the claimants was a reasonably foreseeable consequence of this.19
It was perhaps more open to the court to find liability in Storm than it was in Bourhill and King, particularly because the claimants in Storm both witnessed the horrific and traumatic rescue of the young child being recovered from under the tyre of the truck, whereas no such event was witnessed by the claimants in the former cases. Less easily reconciled with the finding in Storm was Chester. In neither case did the mother of the child killed witness the actual moment of accident or death of their child, both coming to the very distressing scene shortly afterwards. Unless it could be established that witnessing death by drowning and death by being struck by a car were somehow different in principle, it would seem that both cases should have been treated similarly. Consequently, whilst the same could not be said of Chester, the finding in Storm lent some support to the claimant in Pusey¸ particularly as the claimants in both suffered psychiatric injury from directly witnessing a very distressing accident aftermath.
Two years after Storm, a case came before the English courts – a case which would result in the courts developing the epithet of ‘rescuers’ – which would provide further authority perhaps in support of Mr Pusey’s claim. The claimant in Chadwick v British Transport Commission,20 having heard a collision between two trains close to his home, went to the accident scene to assist. Over ninety people were killed as a result of the collision and many more were injured. The claimant stayed at the scene throughout the night to take part in rescue operations, and as a result of the horrific scenes he there witnessed, suffered a debilitating psychiatric injury. In a single judge decision of the Queen’s Bench Division, Waller J found for the claimant on the basis that psychiatric injury to him was a reasonably foreseeable consequence of the defendant’s negligence, notwithstanding that he had not seen and was not involved in the accident itself, coming to the scene of his own will to render assistance. His Honour found that liability was not limited only to those cases in which injury by shock resulted from fear of injury or death to oneself or to one’s child.21 It was foreseeable that as a result of the defendant’s negligence some individuals would suffer psychiatric injury as a result of being exposed to the
19 Ibid 266. 20 [1967] 2 All ER 945. 21 Ibid 950-1.
235 deaths and injuries of others. It was also foreseeable that someone other than the defendant’s servants would come to render assistance and thereby be injured.22
Being similar in principle to the facts in Pusey, Chadwick therefore seemed to support Mr Pusey’s claim. Neither were in a close relationship with those injured or killed, and neither directly witnessed the accident itself. Indeed, being owed a duty as an employee of the defendant, Mr Pusey perhaps had an even stronger claim than the claimant in Chadwick. As Mr Pusey’s employer had control over the physical environment in which he worked as well as knowledge that he would be physically located in a particular area during particular hours, it could perhaps be argued that there was an increased likelihood that Mr Pusey would be exposed to any dangers occurring in that environment.23
Outside of the authorities directly concerning negligently inflicted psychiatric injury, there were further developments in relation to the question of remoteness which were relevant to Mr Pusey’s claim. In the important decision in Overseas Tankship (UK) Ltd v Morts Dock &
22 Ibid 951-2. 23 This was supported by the finding in another case involving an employer-employee situation which had occurred 16 years earlier, Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271. In this case, the court found the defendant liable when the claimant, its employee, suffered psychiatric injury due to the defendant’s negligence. One year after Chadwick, there was a significant development in the law in the Supreme Court of California in Dillon v Legg (1968) 68 C 2d 728, which suggested that liability in that state would similarly develop with regard to the more general notion of reasonable foreseeability of psychiatric injury. In Dillon, the court refused to dismiss a claim by the mother who suffered emotional trauma after she saw her daughter struck by a car and killed. Prior to Dillon, the law in California required defendants to establish that their emotional trauma resulted from fear of injury or death to oneself. Tobriner J, delivering the judgment of the majority, found that foreseeability of risk was the principle matter to be considered in every case. His Honour regarded factors such as whether the claimant was close to the accident, whether psychiatric injury resulted from suffered from contemporaneously witnessing the accident, and whether the parties were closely related, as relevant to the degree to which psychiatric injury was reasonably foreseeable: ibid at 740-1. His Honour stated:
All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case. In light of these factors the court will determine whether the accident and harm was reasonably foreseeable. Such reasonable foreseeability does not turn on whether the particular plaintiff as an individual would have in actuality foreseen the accident and loss; it contemplates the courts, on a case-by-case basis, analysing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen: ibid at 740-1 (emphasis in original).
It is likely that Tobriner J meant to refer to what a defendant could have foreseen, rather than what a plaintiff would have foreseen, in terms of determining what an ordinary person should have foreseen.
236
Engineering Co Ltd (Wagon Mound No 1),24 the Privy Council criticised the test of directness from Re Polemis, instead holding that the appropriate test of remoteness was one of reasonable foreseeability. This was a development which further aligned the law of negligence with the approach advanced in Part II.25 The Privy Council regarded the test of directness as being inconsistent with the requirements of justice between the parties, principally because it could result in a defendant having to compensate a claimant for all the loss the clamant had suffered notwithstanding that this loss may have been unforeseeable.26
A few years later in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (Wagon Mound No 2),27 the Privy Council additionally provided an indication as to the degree of risk that was to be appreciated if one was to be found to be legally responsible for causing it. The Judicial Committee in Wagon Mound No 2 held that risk would be reasonably foreseeable where it was a ‘real risk’, which was a risk which would not be brushed aside as far-fetched by a reasonable person in the defendant’s position.28 Two years later in C. Czarnikow Ltd v Koufos,29 Lord Reid gave further guidance, stating:
24 [1961] AC 388. 25 Outlined in Part II. 26 Giving consideration to previous tests of remoteness, the Privy Council stated:
If it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them) the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them. Thus it is that over and over again it has happened that in different judgments in the same case, and sometimes in a single judgment, liability for a consequence has been imposed on the ground that it was reasonably foreseeable or, alternatively, on the ground that it was natural or necessary or probable. The two grounds have been treated as coterminous, and so they largely are. But, where they are not, the question arises to which the wrong answer was given in Polemis. For, if some limitation must be imposed upon the consequences the negligent actor is to be held responsible – and all are agreed that some limitation there must be – why should that test (reasonable foreseeability) be rejected which, since he is judged by what the reasonable man ought to foresee, corresponds with the common conscience of mankind, and a test (the ‘direct’ consequence) be substituted which leads to nowhere but the never-ending and insoluble problems of causation: [1961] AC 388, 423.
27 [1967] AC 617. 28 Ibid 643. 29 [1969] 1 AC 350.
237
The defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless the risk is so small that a reasonable man would in the whole circumstances fell justified in neglecting it.30
Considering Pusey against this backdrop, it is clear that there were some conflicting lines of authority. None of the authorities were completely consistent with the fact situation in Pusey, and not all were technically binding. The decisions in Storm and Chadwick supported Mr Pusey’s claim, but naturally neither was binding on the High Court, the former being a lower court decision emanating from Tasmania, and the latter being an English lower court decision. This being the case, it is not unreasonable to suggest that there may have been limits to the weight that the High Court could have given these cases, especially considering the respect that the court was required to give to the High Court and House of Lords decisions of Chester and Bourhill, which both appeared to suggest that physical and perception limitations on liability ought to be imposed.
7.2.1 Prevailing understandings of the causes of psychiatric disorders
Although schizophrenia is not typically related to exposure to trauma, by modern scientific understandings, the type of traumatic event experienced by the claimant has been strongly related to the suffering of mental disorders, particularly PTSD and related anxiety disorders.31 With respect to expert understandings at the time of the accident in Pusey, it was well- understood that exposure to scenes of horror was particularly pathological.32 Since the decisions in Chester and Bourhill, there had again been a significant expansion in scientific understandings of the causes of mental disorders. Perhaps the most important precipitating factor in this period of time was World War II, which in the almost 30 years between Bourhill and Pusey had spurred on expert and also public interest in human responses to exposure to trauma.
30 Ibid 385-6. 31 This experience was well-outside of normal and common human experiences, and had the capacity to overwhelm the ordinary adaptions to life: see Mardi J Horowitz, ‘Stress-Response Syndromes: A Review of Posttraumatic Stress and Adjustment Disorders’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 54; Des Butler, Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 240, citing JL Herman, Trauma and Recovery (Pandora, 1992) 15-6. 32 See, eg, CS Myers, Shell-Shock in France, 1914-18 (Cambridge University Press, 1940): cited in Charles R Figley, Trauma and its Wake (Brunner/Mazel, 1985) 8.
238
By 1970, a particular trauma-induced psychiatric disorder had been defined involving a number of distinctive symptoms. Researchers were by this time also aware that the types of traumatic event which could precipitate this disorder were not particular to war or to any other particular set of circumstances, save to say that the trauma involve horrific and frightful experiences. It had been discovered prior to World War II that soldiers returning from war could suffer from the symptoms of ‘shell-shock’ without having been exposed to exploding shells, or to changes in atmosphere or specific substances.33 In 1940, Myers argued that the symptoms of ‘shell- shock’ could be brought about by exposure to trauma such as horrific and frightful incidents.34
Research published by Kardiner in 1941 was also significant. Kardiner provided a definition of post-traumatic stress which he called ‘physioneurosis’, involving a number of distinctive symptoms very similar to those now associated with PTSD.35 This research showed that people suffering with physioneurosis continuously re-lived the traumatic event in question, re- experiencing the emotional state accompanying the event.36 This translated in reality to measurable increases in heart rate and blood pressure in response to stimuli similar to the original traumatic experience, as has been shown in numerous studies on the subject.37 Kardiner also showed that those suffering from physioneurosis experienced extreme sensitivity to a range of physical stimuli, such as variations in temperature or to pain.38 This was the result of
33 See CS Myers, Shell-Shock in France, 1914-18 (Cambridge University Press, 1940): cited in Charles R Figley, Trauma and its Wake (Brunner/Mazel, 1985) 8. 34 Ibid. 35 These included: continuous irritability and an ongoing elevated startle response; a tendency to exaggerated surges of aggression; preoccupation with the traumatic event in question; a reduction in the normal functioning of the personality; and the experiencing of abnormal dreams: A Kardiner, The Traumatic Neurosis of War (Paul B Hoeber, 1941), cited in Bessel A van der Kolk and Jose Saporta, ‘Biological Response to Psychic Trauma’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 26. 36 A Kardiner, The Traumatic Neurosis of War (Paul B Hoeber, 1941): cited in Bessel A van der Kolk and Jose Saporta, ‘Biological Response to Psychic Trauma’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 26. 37 See Bessel A van der Kolk and Jose Saporta, ‘Biological Response to Psychic Trauma’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993), referring to studies by Malloy, Fairbank and Keane (1983), Kolb and Multipassi (1982), Blanchard et al (1986) and Pitman et al (1987): at 26. 38 A Kardiner, The Traumatic Neuroses of War (Paul B Hoeber, 1941): cited in Bessel A van der Kolk, Lars Weisaeth and Onno van der Hart, ‘History of Trauma in Psychiatry’ in Bessel A van der Kolk and Alexander C McFarlane (eds), Traumatic Stress: The Effects of Overwhelming Experience of Mind, Body, and Society (Guilford Publications, 2007) 57.
239
‘a lowering of the threshold for stimulation’ from physiological perspective, and from being in ‘a state of readiness for fright reactions’ from a psychological perspective.39 In 1945, Grinker and Spiegel confirmed Kardiner’s theory and showed that traumatic memories of war had the potential to radically change psychological functioning.40 A disorder called ‘gross stress reaction’ was included in the first edition of the Diagnostic and Statistical Manual of Mental Disorders (‘DSM’) published in 1952, characterised by the experiencing of intense stress leading to overwhelming fear in the sufferer.41
There are two further pieces of evidence which shed light on common understandings at the time of the accident in Pusey, relating particularly to the circumstances in which the claimant suffered psychiatric injury. The first is evidence of mental disorders and their effect on the military. The large amount of publicity relating to the experiencing of horror by soldiers and the onset of mental disorders following World War II made this relationship something that the general public may well have been well-aware of at the time, even if this view was not palatable to all.42 General George Patton viewed mental disorders as resulting from a lack of manliness, character, and willpower, and the General’s attitude towards sufferers of ‘shell-shock’ was one of disgust and distain.43 However, at the same point in time, there were many other very powerful voices in and around the United States military whose opposition to General Patton’s views on the matter represented a shifting of public perception towards the concept of ‘shell- shock’.44 Perhaps most notably, General Eisenhower, commander in chief of the United States military, expressed his dissatisfaction with General Patton’s views.45 Providing a further indication of shifting attitudes at the time of World War II, General Omar Bradley in 1943
39 Ibid. 40 RR Grinker and JP Spiegel, Men Under Stress (Blakiston, 1945): cited in Bessel A van der Kolk, Lars Weisaeth and Onno van der Hart, ‘History of Trauma in Psychiatry’, in Bessel A van der Kolk and Alexander C McFarlane (eds), Traumatic Stress: The Effects of Overwhelming Experience of Mind, Body, and Society (Guilford Publications, 2007) 59. 41 Des A Butler, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 224. A period of academic disinterest in trauma-related disorders followed this, resulting in the complete omission in the second edition of the Diagnostic and Statistical Manual of Mental Disorders published in 1968 (DSM- II) of gross stress reaction as a disorder: ibid 224-5. 42 See Hans Pols, ‘War Neurosis, Adjustment Problems in Veterans, and an Ill Nation: The Disciplinary Project of American Psychiatry During and After World War II’ (2007) 22(1) Osiris 72, 73. 43 George L Mosse, ‘Shell-Shock as a Social Disease’ (2000) 35(1) Journal of Contemporary History 101, 107. 44 Ibid. 45 Ibid.
240 ordered that those suffering from ‘shell-shock’ be regarded as suffering from exhaustion as opposed to mental weakness.46
This shift in attitude can be understood in light of the research conducted by the military prior to World War II with the aim of reducing rates of psychiatric injury amongst soldiers who had experienced battle. The well-known psychiatrist Harry Stack Sullivan was appointed to screen army inductees in December 1940 on the understanding that screening out those vulnerable to suffering from mental disorders would save the armed services from treating these soldiers on the battlefield and also after the war ended.47 Sullivan subsequently developed an extensive screening program which deemed a high percentage of inductees as unfit to serve. Despite this program – which screened out up to 25% of inductees – by 1942 there was a large increase in the numbers of United States soldiers developing psychiatric symptoms which prevented them from carrying on fighting.48 Pols notes that in 1943, 20-34% of all casualties in the United States army were related to psychiatric disorders.49 By 1943, it was clear to the United States army that their policy of reducing the rates of psychiatric disorders amongst soldiers by screening out those vulnerable to such disorders was a failure.50 The vulnerability of physically and psychologically robust young men to the effects of trauma made it clear to the United States military that General Patton’s views were outdated and inaccurate. Psychiatric injury could manifest in any mind subject to the extreme and distressing scenes of horror so common in war.
It was in recognition of the idea that any soldier was susceptible to suffering psychiatric symptoms as a result of prolonged exposure to the trauma of war that the United States army introduced the DEROS policy by the time of the Vietnam War.51 This was the Date Expected Return from Overseas policy, which limited soldiers’ overseas military service to 12 months,
46 Ibid. 47 Hans Pols, ‘War Neurosis, Adjustment Problems in Veterans, and an Ill Nation: The Disciplinary Project of American Psychiatry During and After World War II’ (2007) 22(1) Osiris 72, 76. As discussed in chapter 6, the cost of treating and of providing pensions to soldiers psychiatrically injured as a result of their participation in World War I was significant. 48 Ibid 76-7. 49 Ibid 77. 50 Simon Wessely, ‘Twentieth-Century Theories on Combat Motivation and Breakdown’ (2006) 41(2) Journal of Contemporary History 269, 274. The rates of pensions being paid to ex- soldiers due to mental disorder suffered as a result of war experience was actually higher in World War II than it was in World War I: ibid. 51 Ibid 280.
241 and was intended to reduce the number of psychiatric casualties resulting from service.52 This policy ultimately was not able to reduce the numbers of soldiers suffering from psychiatric disorders as a result of combat experience, and the image of the traumatised Vietnam veteran subsequently was used as a symbol to garner political support against the war.53 It is also clear that information regarding the dangers for the mind in being exposed to horror were communicated to soldiers during World War II. More than 400,000 copies of a booklet compiled by expert psychiatrists and psychologists entitled Psychology for the Fighting Man were distributed amongst the armed forces during the course of the war.54 This booklet made it clear to soldiers that fright and panic were normal responses to the stresses they would face in combat.55 There is also evidence showing this information filtered through to the public at the time. Following World War II, ‘shell-shock’ or ‘war neurosis’ was also a familiar topic to most Americans. Historian Hans Pols has suggested that following the end of World War II, the psychological health of returning soldiers was indeed one of the most commonly discussed topics in the media.56 As such, there appears to be a reasonable basis upon which to argue that the general public would have been familiar with the idea that those exposed to horrific trauma involving another, at least in a military context, may well go on to develop a psychiatric disorder of some kind.
Another important piece of evidence relating to common understandings is that by the time of Mr Pusey’s accident, the phenomenon of industrial accidents leading to serious physical and mental injuries was well-known in British and Australian society. One of the significant negative sides to the rapid industrialisation which had taken place in Britain in the nineteenth and early twentieth centuries was the considerable number of industrial accidents which occurred. As result of this, industrial safety became a prominent public issue during this period
52 Ibid. 53 Ibid. 54 Edward G Boring and Marjorie van de Water, Psychology for the Fighting Man: Prepared for the Fighting Man Himself (Washington DC, 1943); cited in Hans Pols, ‘War Neurosis, Adjustment Problems in Veterans, and an Ill Nation: The Disciplinary Project of American Psychiatry During and After World War II’ (2007) 22(1) Osiris 72, 79. These were printed by a committee of the National Research Council and distributed amongst the armed forces. 55 Ibid: cited in Hans Pols, ‘War Neurosis, Adjustment Problems in Veterans, and an Ill Nation: The Disciplinary Project of American Psychiatry During and After World War II’ (2007) 22(1) Osiris 72, 79. 56 Hans Pols, ‘War Neurosis, Adjustment Problems in Veterans, and an Ill Nation: The Disciplinary Project of American Psychiatry During and After World War II’ (2007) 22(1) Osiris 72, 73.
242 of time.57 The medical profession in particular took notice of the negative health effects which could be produced by employment, and started to develop specific expertise in industrial medicine.58 A number of pieces of legislation were introduced in Britain, the United States of America, and Australia to deal with the issue,59 with perhaps the most significant being workers’ compensation legislation.60
Of crucial importance is that whilst there is much variation between these workers’ compensation schemes, psychiatric injuries are generally compensable along with physical injuries. The British regime, as with the Australian regimes, required claimants to show they
57 Peter WJ Bartrip and PT Fenn, ‘The Measurement of Safety: Factory Accident Statistics in Victorian and Edwardian Britain’ (1990) 63(150) Historical Research 58, 58. 58 Andrew Meiklejohn, ‘Sixty Years of Industrial Medicine in Great Britain’ (1956) 13 British Journal of Industrial Medicine 155, 155. 59 For example, the Health and Morals of Apprentices Act 1802, Factory Act 1844, Factory and Workshops Act 1871, and Employers’ Liability Act 1880 were legislative measures introduced by the British government to deal with this issue: see Peter WJ Bartrip and PT Fenn, ‘The Measurement of Safety: Factory Accident Statistics in Victorian and Edwardian Britain’ (1990) 63(150) Historical Research 58, 59; WR Lee, ‘Emergence of Occupational Medicine in Victorian Times’ (1973) 30 British Journal of Industrial Medicine 118, 118; Andrew Meiklejohn, ‘Sixty Years of Industrial Medicine in Great Britain’ (1956) 13 British Journal of Industrial Medicine 155, 155. In the United States of America, the Safety Appliance Act 27 Stat 531-2 and the Federal Employers’ Liability Act 35 Stat 65 were two pieces of legislation enacted in order to improve industrial safety: see Lawrence M Friedman and Jack Ladinsky, ‘Social Change and the Law of Industrial Accidents’ (1967) 67(1) Columbia Law Review 50, 64-5. 60 See, eg, the British Workmen’s Compensation Act 1897 which was similar to workmen’s compensation schemes which had been adopted in Switzerland in 1881 and in Germany in 1884: Lawrence M Friedman and Jack Ladinsky, ‘Social Change and the Law of Industrial Accidents’ (1967) 67(1) Columbia Law Review 50, 77. Workmen’s compensation schemes were also adopted in the United States in the early twentieth century. New York was the first state to adopt workmen’s compensation laws in 1910, followed in 1911 by California, Illinois, Kansas, Massachusetts, New Hampshire, New Jersey, Nevada, Ohio, Washington and Wisconsin. Most other states adopted such legislation, the last being Mississippi in 1948: Lawrence M Friedman and Jack Ladinsky, ‘Social Change and the Law of Industrial Accidents’ (1967) 67(1) Columbia Law Review 50, 70; Stefan A Riesenfeld, ‘Contemporary Trends for Industrial Accidents Here and Abroad’ (1954) 42(4) California Law Review 531, 533. Workers’ compensation regimes were also introduced in Australia in the early twentieth century. The first jurisdiction to enact such legislation was South Australia in 1900. Western Australia introduced its regime soon after in 1902, followed by Queensland in 1905, New South Wales and Tasmania in 1910, Victoria in 1914, the Northern Territory in 1920, and the Australian Capital Territory in 1946. The Commonwealth also introduced a regime for Commonwealth employees in 1912. New Zealand also brought into effect its own worker’s compensation legislation in 1900. Canada did the same in 1902. For further discussion of this, see Safe Work Australia, ‘Comparison of Workers’ Compensation Arrangements in Australia and New Zealand’ (2010) Commonwealth of Australia, 7-26.
243 had suffered personal injury by accident in order to be awarded compensation.61 This might have resulted in liability being limited only to those injuries which could be connected to sudden, once-off causal incidents, thereby excluding those injuries which were the result of a cumulative series of traumas. However, this is not the path taken by the courts in interpreting the British legislation, who held that an employee could establish liability where they suffered injury during the normal course of employment.62
In the United States, claimants are required to show not only that they have suffered a psychiatric injury, but also that they are unable to perform or obtain work as a result of the injury.63 Provided claimants can establish that they have suffered psychiatric injury in the course of their employment, they can successfully claim in a number of circumstances, including when mental stimulus causes physical injury, when physical stimulus produces a nervous disorder, and when mental stimulus produces a nervous disorder.64 Given that the aetiology of mental disorders is generally multifactorial in nature, perhaps the most difficult aspect of workers’ compensation claims involving psychiatric injuries is the requirement for the claimant to show that their injury has arisen out of the course of their employment.65 Notwithstanding this difficulty however, the law in the United States has generally overcome the potential hurdle of having to ascribe the cause of an injury to a particular time and place either by widening the definitions in the legislation to include injuries caused by cumulative stresses, or by courts taking a wide interpretation of the existing legislative requirements.66 Despite the enactment of these legislative regimes, the numbers of industrial accidents continued to steadily rise throughout the early-to-mid-twentieth century.67
61 See Fenton v Thorley (1903) AC 443: cited in Thomas S Cook, ‘Workers' Compensation and Stress Claims: Remedial Intent and Restrictive Application’ (1987) 62 Notre Dame Law Review 879, 883. 62 Ibid 885. 63 See Marilyn Cohen, ‘Workmen’s Compensation Awards for Psychoneurotic Reactions’ (1961) 70(7) Yale Law Journal 1129, 1132-3. Also see generally Arthur Larson, ‘Mental and Nervous Injury in Workmen’s Compensation’ (1970) 23(6) Vanderbilt Law Review 1243. 64 See Arthur Larson, ‘Mental and Nervous Injury in Workmen’s Compensation’ (1970) 23(6) Vanderbilt Law Review 1243, 1243. 65 See Thomas S Cook, ‘Workers' Compensation and Stress Claims: Remedial Intent and Restrictive Application’ (1987) 62 Notre Dame Law Review 879, 880. 66 Ibid 883. 67 In Britain in 1938, there were 134,752 reportable accidents involving adult males and 14,626 involving adult females. In 1940 this figure rose for both sexes to 173,228 for males and to 23,766 for females. The same occurred in the subsequent 3 years, rising to 191,343 for males and 42,857 for females in 1941, to 203,865 for males and 71,244 for females in 1942, and to 200,651 for males and 73,065 for females in 1943: HM Vernon, ‘Prevention of Accidents’ (1945) 2(1) British Journal of Industrial Medicine 1, 1. As was the case in relation to
244
Due to the scale and importance of the issue throughout the period, the topic of industrial accidents was reported on frequently in the newspapers throughout the early twentieth century up to and including the time of the accident in Pusey. There are many examples from Australia and Britain of articles from each decade – 1900-1909,68 1910-1919,69 1920-1929,70 1930-
automobile accidents, the numbers in the United States of America were even higher. Between 1900 and 1910, there were approximately 35,000 deaths and 2,000,000 injuries each year as a result of industrial accidents: Lawrence M Friedman and Jack Ladinsky, ‘Social Change and the Law of Industrial Accidents’ (1967) 67(1) Columbia Law Review 50, 60. By the 1950s, the annual rate of injuries remained at around 2,000,000, although the annual number of fatalities as a result of these accidents had fallen to 11,000: Stefan A Riesenfeld, ‘Contemporary Trends for Industrial Accidents Here and Abroad’ (1954) 42(4) California Law Review 531, 531. By the mid-to-late-1960s, fatal accident rates in Britain were still a significant cause for concern, with the figure in 1969 being 0.04 per 1,000 employed. However, considering this figure was even higher in a number of other countries at the time – such as Austria, Canada, Czechoslovakia, France, Italy, Germany, and Switzerland – this could not be considered a problem peculiar to Britain: PB Beaumont, ‘An Analysis of the Problem of Industrial Accidents in Britain’ (1980) 1(1) International Journal of Manpower 28, 28. 68 See, eg, Examiner, ‘Inland Wires. Terrible Accident’, 29 July 1901, 6; Leeds Mercury, ‘An Assurance Company’s Failure, 28 May 1902, 7; Lancashire Evening Post, ‘An Assurance Company’s Failure, 28 May 1902, 7; Aberdeen Press and Journal, ‘Notification of Industrial Accidents’, 12 January 1903, 9; Newcastle Morning Herald and Miners’ Advocate, ‘Industrial Accident Relief’, 11 October 1907, 4; Queensland Times, ‘Accident at the Railway Workshops’, 19 May 1909, 4; Queensland Times, ‘Injury to an Eye. Accident and the Railway Workshops’, 6 August 1909, 4. 69 See, eg, Advertiser, ‘A Youth’s Dreadful Death’, 12 July 1910, 8; West Australian, ‘A Shocking Fatality’, 12 July 1910, 5; Mercury, ‘Youth’s Shocking Death’, 12 July 1910, 6; Argus, ‘Whirled Round Shaft’, 12 July 1910, 7; Kalgoorlie Western Argus, ‘Fatality at Tindal’s Mine’, 19 July 1910, 12; Sheffield Daily Telegraph, ‘Industrial Accidents’, 9 January 1911, 6; Kalgoorlie Miner, ‘Industrial Laws. Accident Relief Funds’, 9 March 1911, 8; Kalgoorlie Western Argus, ‘Industrial Laws. Accident Relief Funds’, 14 March 1911, 6; Daily Post, ‘Industrial Accident. Manufacturer’s Convention’, 9 May 1911, 5; Queensland Times, ‘A Crushed Hand’, 14 June 1912, 4; Daily Herald, ‘Reducing Accidents by Educational Plan’, 27 September 1916, 3; Critic, ‘Justice to Widows’, 9 March 1917, 8; Daily Herald, ‘Workmen’s Compensation’, 6 January 1917, 3; Daily Herald, ‘Many Workers Injured’, 21 March 1918, 3; Daily Herald, ‘Occupational Diseases’, 24 April 1918, 3. 70 See, eg, Nottingham Evening Post, ‘Workmen’s Compensation’, 13 May 1920, 1; Cheltenham Chronicle, ‘£400 Limit for Workman’s Death’, 15 May 1920; 7; Lincolnshire Echo, ‘Industrial Accidents. 1919 Death Toll. Suggestion of Safety Committees’, 22 September 1920, 3; Daily Herald, ‘Safety in Ship Building’, 20 January 1921, 2; Yorkshire Post and Leeds Intelligencer, ‘Industrial Fatigue and Accidents’, 1 December 1922, 12; Barrier Miner, ‘Fatality at Wentworth’, 17 March 1923, 6; Newcastle Morning Herald and Miners’ Advocate, ‘Industrial Matters. Accident Insurance. Proposals of Miners’ Federation’, 30 March 1922, 4; Queensland Times, ‘Safety in Mines’, 31 March 1923, 3; Nottingham Evening Post, ‘Security for Workers’, 27 February 1924, 5; Daily Herald, ‘Industrial Accident. Interesting Statistics. Report of International Labor Office’, 22 April 1924, 2; Nottingham Journal, ‘Accidents at Work’, 17 July 1925, 5; Inverell Times, ‘Death After a Fall. Accident at Butter Factory’, 16 March 1926, 4; Canberra Times, Brick-Pit Mishap. Workman Dies From Injuries’, 24 April 1928, 5.
245
1939,71 1940-1949,72 1950-1959,73 and 1960-196974 – discussing industrial accidents from a range of perspectives. These include articles detailing the facts of particular industrial accidents or claims for compensation arising out of industrial accidents,75 as well as articles proposing
71 See, eg, Newcastle Morning Herald and Miners’ Advocate, ‘Accidents’, 5 March 1930, 7; Brisbane Courier, ‘Accident at Workshops’, 5 February 1931, 5; Sunderland Daily Echo and Shipping Gazette, ‘Should State Pay Workmens’ Compensation?’, 1 May 1933, 2; Leeds Mercury, ‘20 Killed Every Day’, 10 May 1934, 5; Courier-Mail, ‘Two Workmen Injured. Ingot Falls Into Ship’s Hold’, 29 May 1934, 15; Nepean Times, ‘Lift Fatality’, 30 June 1934, 4; Sydney Morning Herald, ‘Fatality at Factory. Vincent v Wilson’s Tile Works Ltd’, 27 June 1935, 5; Nottingham Evening Post, ‘Defects in Workmens’ Compensation Law’, 14 December 1936, 3; Tamworth Herald, ‘Industrial Accident Compensation’, 19 December 1936, 10; Newcastle Morning Herald and Miners’ Advocate, ‘Industrial Court. Accident at Factory’, 8 September 1937; Newcastle Morning Herald and Miners’ Advocate, ‘Industrial Accident Hospital’, 10 December 1937, 8; Hull Daily Mail, ‘Mishap in Hull Oil Mill’, 15 November 1938, 4; West Australian, ‘Workers’ Compensation’, 17 November 1939, 18. 72 See, eg, Newcastle Morning Herald and Miners’ Advocate, ‘Widow Awarded £2,091. Man Crushed by Lorry’, 2 October 1940, 6; Aberdeen Press and Journal, ‘All-In Social Security Plan’, 2 December 1942, 2; Daily Record, ‘Labour Training’, 17 February 1943, 6; Liverpool Evening Express, ‘Compensation’, 29 July 1943, 2; Liverpool Daily Post, ‘Accidents at Work. 7 Reasons for Increase’, 7 October 1943, 2; Middlesex Chronicle, ‘Coroner’s Opinion of Silicosis’, 26 August 1944, 2; National Advocate, ‘Accidents in Industry. Warning by Minister’, 24 May 1945, 4; Newcastle Morning Herald and Miners’ Advocate, ‘Industrial Accident Figures Too High’, 24 May 1945, 8; Advertiser, ‘Rest Pause for Tea. Fewer Accidents, Says Report’, 15 November 1946, 14; Sunday Mail, ‘Two Urgent Calls. Blood Sent to Save Lives’, 20 July 1947, 3; Gloucestershire Echo, ‘Mechanical Hammer Kills Workman’, 13 April 1948, 2. 73 See, eg, Falkirk Herald, ‘Industrial Safety’, 21 January 1950, 5; Dundee Courier, ‘Shipyard Worker Wins Appeal’, 9 May 1950, 3; Falkirk Herald, Accidents in the Factory’, 21 March 1951, 5; Northern Star, ‘Huge Sum for Injury’, 31 October 1952, 1; Dubbo Liberal and Macquarie Advocate, ‘£31,800 to Crippled Labourer’, 31 October 1952, 1; News, ‘Petrol Blast Kills Three’, 23 December 1953, 6; Inverell Times, ‘Mill Accident at Gum Flat’, 10 November 1954, 4; Aberdeen Evening Express, ‘Aberdeen and North-Eastern Industrial Accident Prevention Group’, 17 January 1955, 17; Belfast News-Letter, Industrial Injuries’, 2 August 1956, 4; Motherwell Times, ‘Industrial Accident Prevention’, 26 July 1957, 7. 74 See, eg, Canberra Times, ‘Safety is Rule for Everyone’, 27 September 1960, 19; Biz, ‘Accidents Cause Industry Huge Losses – Rotary Told’, 25 October 1961, 5; Canberra Times, ‘In the Courts’, 16 April 1965, 9; Canberra Times, ‘Accidents Cost NSW £100m’, 5 June 1965, 3; Western Herald, ‘Industrial Accidents’, 11 June 1965, 1; Canberra Times, ‘In the Courts’, 16 September 1966, 12; Canberra Times, ‘27 Die in Accidents’, 16 July 1968, 7; Beverley Times, ‘Warning on Industrial Accidents’, 14 February 1969, 7. 75 See, eg, Inverell Times, ‘Death After a Fall. Accident at Butter Factory’, 16 March 1926, 4; Canberra Times, Brick-Pit Mishap. Workman Dies From Injuries’, 24 April 1928, 5; Courier- Mail, ‘Two Workmen Injured. Ingot Falls Into Ship’s Hold’, 29 May 1934, 15; Newcastle Morning Herald and Miners’ Advocate, ‘Widow Awarded £2,091. Man Crushed by Lorry’, 2 October 1940, 6; Gloucestershire Echo, ‘Mechanical Hammer Kills Workman’, 13 April 1948, 2; Dundee Courier, ‘Shipyard Worker Wins Appeal’, 9 May 1950, 3; Dubbo Liberal and Macquarie Advocate, ‘£31,800 to Crippled Labourer’, 31 October 1952, 1; Inverell Times, ‘Mill Accident at Gum Flat’, 10 November 1954, 4; Canberra Times, ‘In the Courts’, 16 April 1965, 9.
246 changes to workplace practices76 or changes to law77 in order to reduce the numbers of accidents.
Of significance in relation to common understandings of mental disorders at around the time of Mr Pusey’s accident is that from the turn of the twentieth century up until the 1970s, articles outlining stories of workers suffering mental disorders as a result of industrial accidents were not uncommon in the Australian newspapers. Examples of such articles include the following:
an account of a saw-miller suffered depression and shock after accidentally striking his knee with axe;78 the story of a coal miner awarded workers’ compensation in England for nervous shock suffered as a result going to the aid of a co-worker injured in an accident who subsequently died;79 a warning to tram drivers about the risk of nervous shock from accidents and narrow escapes;80 a discussion of prevailing scientific understandings of causes of nervous shock in the context of industrial accidents;81 a story of a man who suffered physical injuries and nervous shock after being struck by a train;82 an account of a woman suffered nervous shock due to death of her son during a medical procedure;83 an article warning about the risk of nervous disorders as a result of exposure in the workplace to loud noises;84
76 See, eg, Daily Herald, ‘Safety in Ship Building’, 20 January 1921, 2; Daily Record, ‘Labour Training’, 17 February 1943, 6; Advertiser, ‘Rest Pause for Tea. Fewer Accidents, Says Report’, 15 November 1946, 14; Aberdeen Evening Express, ‘Aberdeen and North-Eastern Industrial Accident Prevention Group’, 17 January 1955, 17. 77 See, eg, Daily Herald, ‘Workmen’s Compensation’, 6 January 1917, 3; Newcastle Morning Herald and Miners’ Advocate, ‘Industrial Matters. Accident Insurance. Proposals of Miners’ Federation’, 30 March 1922, 4; Sunderland Daily Echo and Shipping Gazette, ‘Should State Pay Workmens’ Compensation?’, 1 May 1933, 2. 78 Southern Times, ‘Collie Notes’, 11 April 1908, 3. 79 Daily Herald, ‘Workers’ Compensation Act’, 30 September 1910, 3. 80 Sun, ‘Safety First Movement’, 20 December 1915, 6. 81 Argus, ‘Saturday May 20 1916’, 20 May 1916, 18. 82 Advertiser, ‘Law Courts. Industrial Disputes’, 5 April 1917, 10. 83 Don Dorrigo Gazette and Guy Fawkes Advocate, ‘News From Yankee Files’, 11 June 1921, 4. 84 Daily Standard, ‘Industrial Health’, 21 March 1923, 4.
247
a story discussing the law relating to nervous shock;85 the story of a contract shot-firer who suffered shock after a shot explosion;86 an article about amendments to the Victorian Wrongs Act to include injury by shock in the absence of physical impact;87 an account of a railway porter’s ultimately unsuccessful claim for compensation for shock suffered as a result of witnessing a fatal accident;88 a story about a stevedore who suffered shock after being struck on the back of the neck by a sling of bags;89 an article discussing an English case in which woman was awarded compensation for shock as a result of witnessing an automobile accident;90 an article warning about the risks of nervous shock as a result of exposure to loud and distressing noises on the roads or in the workplace;91 and a story about a man’s claim for damages for physical injuries and shock sustained in an accident involving a lorry.92
Taken together, this evidence provides a reasonable basis upon which to argue that an ordinary member of the public at the time of Mr Pusey’s accident may well have been able to appreciate the risk of psychiatric injury to someone in Mr Pusey’s situation, who was witness to gruesome scenes of horror involving a co-worker who ultimately died as a result of his injuries. If this argument is accepted, there was no reason in principle to treat Mr Pusey’s injury any differently to any injury which was well-understood by the general community to be causally related to particular actions or events.
7.2.2 Corrective justice analysis of Pusey
It is significant that the decision in Pusey can be understood from the perspective of the corrective justice approach advanced in Part II. Based on the argument above regarding
85 West Australian, ‘Puzzles of the Law’, 4 June 1926, 15. 86 Maitland Weekly Mercury, ‘Local News’, 1 May 1926, 4. 87 Cairns Post, ‘Melbourne Notes’, 17 December 1932, 11. 88 Northern Miner, ‘No Claim’, 19 October 1935, 2; Northern Miner, ‘Witnessed Suicide’, 17 October 1935, 3. 89 Chronicle, ‘Industrial Terrorism’, 20 February 1936, 39. 90 Cairns Post, ‘Our London Letter’, 12 January 1939, 13. 91 Argus, ‘Battle Against Bedlam’, 28 January 1952, 2. 92 Morning Bulletin, ‘£10,000 Damages Claimed by Injured Truck Driver’, 14 October 1954, 9.
248 prevailing understandings,93 there is a good argument that the risk of psychiatric injury to the claimant was appreciable to an ordinary member of the community at the time. On this basis it was appropriate that the defendant was found to owe the claimant a duty of care notwithstanding that the claimant had not seen the accident involving his work colleague and was not in a close relationship with him. As such, the court’s finding for the claimant was principled and just.
Furthermore, the three doctrinal aspects of Pusey outlined above94 were also principled. The High Court’s findings with respect to the first two significant doctrinal aspects of this case – that in cases in which there is an employer and employee relation, the appropriate test for duty is the test of reasonable foresight alone, and that when the claimant directly perceives scenes of horror, psychiatric injury can be reasonably foreseeable notwithstanding that the claimant is not in a close and loving relationship with the victim – will here be considered together. This is considered appropriate on the basis that the High Court effectively treated these issues as being intermingled.
It was appropriate that the court found that the test of reasonable foreseeability was the sole test of liability in cases where the claimant and the defendant are in an employer and employee relationship. As has already been argued, this approach is principled,95and is particularly appropriate in cases where the parties are in an employer and employee relationship. Treating the parties as equals, this approach was also morally justifiable. It suggests that the risk of psychiatric injury to the claimant will likely be more appreciable when the defendant is the claimant’s employer. This is appropriate because by virtue of this relationship the employer has a large part to play in the extent of risk to which the claimant is exposed, firstly because the defendant controls the claimant’s working environment, and secondly because the defendant to a significant extent controls the actions of the claimant during the course of employment. This appeared to be particularly relevant in the court’s assessment of the defendants’ actions in Pusey.
The second important doctrinal finding – that when the claimant directly perceives scenes of horror, psychiatric injury can be reasonably foreseeable notwithstanding that the claimant is
93 See section 7.2.1. 94 At section 7.2. 95 See the discussion of the principled and pragmatic approach above in chapter 4.
249 not in a close and loving relationship with the victim – was also principled. The discussion above regarding prevailing understandings of the causes of mental disorders makes the case that the risk of psychiatric injury when a person has been directly exposed to trauma was likely appreciable as a matter of community expectations and understandings at the time. Importantly, this is the case regardless of the nature of the relationship between the person suffering emotional trauma and the person to whom the accident has occurred.96 The court’s finding in Pusey removed the consideration of the closeness of the relationship between the parties – an arbitrary limit in such circumstances – and reflected these prevailing understandings.
Both rules were also transparent, being motivated by reasons consistent with the approach advanced in Part II. Four of the five High Court judges indicated that liability in Pusey turned exclusively on the question of foreseeability, due to the parties being in a relationship of employer and employee.97 The overall finding by the judges in the majority was that owners and operators of the high voltage electrical conductors in question ought to have foreseen that mishandling of such equipment could lead to electrocution causing severe burns.98 Furthermore, employers in such a situation ought to have foreseen that on becoming aware of such an accident, fellow employees nearby would rush to the scene to provide assistance to the injured, and upon witnessing such severe burns to fellow employees might suffer mental disturbance, with no medical or special knowledge being required to so foresee.99
The High Court did not appear to be concerned that there was a lapse of time between the accident and the claimant coming to the scene where he suffered shock from what he saw. Only McTiernan J commented specifically on this issue. Relying on Evatt J’s comments in Chester, McTiernan J stated that it was sufficient that the shock suffered by the claimant was ‘fairly contemporaneous with the casualty.’100 Being of the view that the claimant’s injury was a consequence of the defendant’s negligence McTiernan J was satisfied that this was within the bounds of reasonable foreseeability.101
96 See the argument above at section 7.2.1. 97 Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, 389 (Barwick CJ), 389-90 (McTiernan J), 393 (Menzies J), 401 (Windeyer J). 98 Ibid. 99 Ibid 389-90 (Barwick CJ), 391 (McTiernan J), 393 (Menzies J), 401 (Windeyer J). 100 Chester v Waverley Corporation (1939) 62 CLR 1, 31: cited in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 391. 101 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 391.
250
Walsh J was the only judge who did not base his judgment on the relationship of employer and employee. His Honour was of the view that the injury suffered by Mr Pusey was of a type which was reasonably foreseeable regardless of this relationship.102 Walsh J held that the duty rested not upon the relationship of employer and employee but upon ‘a finding of a duty owed to all persons of whom it might reasonably be anticipated that they might suffer injury (of the relevant kind) and upon a finding that the respondent was such a person.’103 In considering whether the authorities indicated that any special limitations should be placed on the ambit of liability for nervous shock, Walsh J found that no rule of law had been established which prevented the court from finding that the application of a general test of foreseeability was the correct approach to take.104 His Honour found that no special rule limiting liability applied in this case and, affirming the decision of Burbury CJ in Storm v Geeves,105 held that the present case required ‘the application to its facts of ‘the general test of reasonable foresight.’106
It is clear that the relationship of employer and employee had an important influence on the outcome in Pusey, and despite the finding in Chadwick it was unclear whether the same result would have been reached if the defendant and claimant were complete strangers. It is important to note this because as can be seen from the analysis of prevailing understandings above107 the risk of psychiatric injury to Mr Pusey was appreciable at a common understandings level even in the absence of an employer-employee relationship. It was accordingly appropriate – from the perspective of the approach advanced in Part II – to deal with the case simply on the basis of reasonable foreseeability, as was done by Walsh J, although the question of this relationship would likely have been relevant to the overall question of reasonable foreseeability.
Walsh J’s judgment is consistent with the interpretation that liability would extend to circumstances where the claimant and defendant were strangers. However, only Windeyer J commented specifically on this point, giving an indication that he thought this position logical. Windeyer J noted that cases such as Dooley and Chadwick had indicated that liability was not
102 Ibid 412. 103 Ibid. Walsh J thus affirmed the trial judge’s approach to this issue. 104 Ibid 414-5. 105 [1965] Tas SR 257. 106 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 415. In support of this proposition, Walsh J noted that the general test of reasonable foreseeability was the test that was applied in two previous relevant decisions of the High Court Australia, namely Bunyan v Jordan (1937) 57 CLR 1 and Chester v Waverley Corporation (1939) 62 CLR 1: ibid at 415-6. 107 At section 7.2.1.
251 limited only to parents and other near relatives of people killed, and his Honour was of the view that this was the course which should be adopted. As far as Windeyer J was concerned, it was not justifiable either on grounds of public policy or of logic to place some people suffering psychiatric injury from what they perceived in a different category to others who had suffered ‘similar damage in the same way from the same occurrence.’108 His Honour was of the view that the rule that only relatives could recover was in actuality simply a reflection of the fact that claims of relatives were allowed – on humane grounds – as an exception to the general denial of all claims of psychiatric injury. Such an exception:
allowed compassion and human sympathy to override the older doctrine, draconic and arbitrary, which recognized only bodily ills as compensable by damages and made a rigid difference between ills of the mind and hurts to the body.109
Consequently:
What began as an exception in favour of relatives to a doctrine now largely abandoned has now been seen as a restriction, seemingly illogical, of the class of persons who can today have damages for mental ills caused by careless conduct.110
Having indicated his support in principle for the extension of liability to strangers, his Honour stopped short of laying down any general principle of this sort. Perhaps cognisant of the potential for principles of a general nature to have application far beyond their original intention, Windeyer J confined his decision to the facts of the present case.111 Nonetheless, being consistent with common understandings of the causes of mental disorders at the time,
108 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 404. 109 Ibid. 110 Ibid. 111 His Honour stated:
The ways in which the law of liability for nervous shock has been developed by courts in England and here, and extended to new situations, have been empirical, with results and limitations that appear as pragmatical rather than as logical applications of principle. That does not mean that I think that case are to be decided by a matching in detail of the facts of one case against those of another. But it does mean that in this field it is peculiarly true that circumstances alter cases: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 407.
His Honour further indicated that liability would not extend to cases where the claimant suffered psychiatric injury simply from learning of bad news: ibid.
252 particularly in relation to those cases where the claimant has been exposed to scenes of horror, this position was principled.
The third significant doctrinal finding in Pusey – that it was not necessary for the precise injury suffered by the claimant to have been reasonably foreseeable, it being sufficient that the ‘kind’ of injury suffered by the claimant was reasonably foreseeable – was also principled. Whilst the exact psychological disorder suffered by the claimant was relatively rare, the risk of some kind of psychiatric injury to the claimant was appreciable in the circumstances. Accordingly, whilst the particular psychiatric injury suffered by the claimant was relatively unusual, the claimant’s right to physical and psychological integrity nonetheless extended to include any mental disorder suffered by him in the circumstances. By analogy, it would not ordinarily be reasonable for a defendant to escape liability in negligence as a result of causing a motor vehicle accident in which another person has been physically injured simply because the exact physical injury suffered by the injured person as a result of the accident was not common. By creating a commonly understood risk of psychiatric injury, the defendant ought to have appreciated the risk of such an injury as a result of his actions. As such, there was good fit between this doctrinal finding and the corrective justice approach advanced in Part II.
There is also good reason to argue that any other finding would not have been principled or morally justifiable. A finding that the rarity of the claimant’s condition meant that his claim should be denied notwithstanding that the risk of some kind of mental disorder was readily appreciable would not have treated the claimant’s interests as being of equal value as those of the defendant. Such a finding would not have been understandable in the context of a law which seeks to require defendants to compensate claimants when they have been wronged. By providing a reason to deny liability when the defendant had wronged the claimant, such a finding would not have been justified as a matter of principle.
The reasoning of the judges in relation to this finding was also consistent with this approach. Barwick CJ, McTiernan and Menzies JJ held that the rarity of the claimant’s mental disorder did not result in his injury not being foreseeable, as it formed part of a class of injuries which were foreseeable.112 Walsh J considered this issue by finding that it was foreseeable that ‘shock
112 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 390 (Barwick CJ), 391-2 (McTiernan J), 393 (Menzies J).
253 and some form of mental illness or neurosis’ would be suffered by the claimant.113 The relevant principle in The “Wagon Mound”(No 1) was that the ‘essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen.’114 Walsh J considered that the trial judge’s finding that the harm suffered by the claimant was of a kind that a reasonable man should have foreseen was correct for two reasons.115 The first was that it was not necessary for the claimant to establish that the exact nature of the damage suffered was foreseeable.116 Rather, on the basis of Hughes v Lord Advocate117 and Chapman v Hearse,118 it was sufficient that the damage suffered not be of a different kind than that which was foreseeable.119 The second reason was that Walsh J considered injury ‘by shock’ as being injury of a distinct ‘kind’, as indicated by The “Wagon Mound” No 1.120
Windeyer J stated that foreseeability did not require ‘foresight of the particular course of events causing the harm’.121 Also not required was ‘foresight of the particular harm which occurred, but only of some harm of a like kind’.122 In considering whether the particular harm suffered was of such a type that was foreseeable, Windeyer J stated: ‘The particular pathological condition which the shock produced need not have been foreseeable. It is enough that it is a “recognisable psychiatric illness”.’123 Applying this principle to the case before the court, Windeyer J found that the claimant suffered a ‘profound psychiatric disability’ as a consequence of the defendant’s negligence, and that it did not matter how such a psychiatric disability was labelled.124 His Honour stated:
reasonable foreseeability is not measured by statistical probability. Moreover, as I have said, the question is not whether shock would be likely to produce this particular illness, but whether
113 Ibid 413. 114 Ibid. 115 Ibid 413-14. 116 Ibid. 117 [1963] AC 837, 845. 118 (1961) 106 CLR 112, 121. 119 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 413-14. 120 [1961] AC 388, 426; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 414. This finding was based on Lord Denning’s statement in King v Phillips [1953] 1 QB 429 that ‘there can be no doubt since Bourhill v Young [1943] AC 92 that the test of liability for shock is foreseeability of injury by shock’: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 414. 121 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 402. 122 Ibid. 123 Ibid. 124 Ibid 402-3.
254
there was a real risk that a foreseeable accident such as occurred would cause a man in the powerhouse to suffer a nervous shock having lasting mental consequences.125
Windeyer J made some further comments regarding the correct characterisation of damage in relation to psychiatric injury, which were also consistent with the approach advanced in this thesis. Windeyer J stated:
Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover damages for a ‘shock’, however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening. It is, however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the result of a tortious act, damages may be had. It is in that consequential sense that the term ‘nervous shock’ has come into the law.126
This is consistent with the view presented above127 that transient emotional upset is not compensable no matter how upsetting because it does not deny the claimant ‘the means of achieving her own purposes.’128 Furthermore, the recognition by the law of passing or transient threats to the right to physical and psychological integrity would deny the possibility of all action by defendants and therefore be inconsistent with the formal equality underpinning the relationship between all parties.129 The requirement that the claimant suffer a recognisable psychiatric illness in order to sustain a claim for compensation is consistent with the corrective justice approach advanced in Part II on two related grounds. The first is that this requirement establishes that the interference with physical and psychological integrity must be more than simply trivial; that is to say, it must have interfered with the right to physical and psychological integrity which only extends as so far as is consistent with the freedom of all persons pursuant to a universal law of freedom. The second is that the requirement establishes that the interference must be more than transient. The ‘recognisable psychiatric illness’ epithet, whilst perhaps being an inexact line in the sand from a scientific perspective, nonetheless is useful
125 Ibid. 126 Ibid 394. 127 See chapter 4. 128 Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016) chapter 12. 129 See chapter 2 for a discussion of the importance of transactional equality between the parties in a system of corrective justice.
255 from the perspective of the approach advanced in this thesis in distinguishing mental disorders which interfere with a person’s ability to pursue their own owns and other upsetting mental states.130
7.3 Jaensch v Coffey (1984)131
The issue of how contemporaneous an accident involving another and resulting psychiatric injury to the claimant was required to be would further be tested by the fact scenario in Jaensch. In Jaensch, the claimant suffered psychiatric injury as a result of witnessing her husband’s injuries sustained after a motor vehicle accident caused by the negligence of the defendant. The claimant did not witness the accident involving her husband either through sight or hearing. The claimant’s husband was taken to hospital after suffering serious injuries in the accident and there the claimant witnessed her husband in an injured state. She did not know whether he would recover from his injuries and subsequently developed anxiety and depression as a result of what she saw and was told at the hospital, particularly fearing her husband might die. The only phenomenon the claimant in Jaensch witnessed was at the hospital sometime after the accident with evidence indicating that her resultant psychiatric injury was aetiologically associated with fearing her husband might die as a result partly of what she saw at the hospital, and partly from a telephone call from the doctors the morning after the accident.
The facts of this case presented the court with a choice – rely on the established principles and deny the claimant’s claim on the basis that she had not directly witnessed the accident or come to her husband’s aid directly after the accident – or extend the established principles and allow the claimant’s claim. The High Court of Australia chose the second option. However as with many of the other leading cases, having extended the ambit of liability for reasons of principle the individual judges then used a range of methods to limit liability due to indeterminacy and floodgates concerns. Having considered direct perception rule as a limitation lacking in principled foundations, the High Court did not abandon consideration of whether the claimant directly perceived a distressing event. Instead, the court chose to extend the range of
130 For further discussion of the importance of the distinction between injury in the form of a recognisable psychiatric illness and mere grief or emotional disturbance, see Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016) ch 14. 131 (1984) 155 CLR 549.
256 phenomena which would satisfy this requirement as well as the amount of time within which these phenomena must be perceived.
This case is doctrinally significant because the High Court of Australia effectively extended the requirement for direct perception implicit in the majority judgments in Chester to include events after the accident itself and to scenes away from the place of the accident, in this case to the hospital during the period of immediate post-accident treatment.132 There were a number of separate doctrinal positions which were taken up by the various High Court judges in this case which were also important in the development of the law. These included the position taken by Gibbs CJ and by Deane J that the appropriate test for the duty of care in cases of negligently inflicted psychiatric injury was the test of reasonable foreseeability alongside a test of ‘proximity’, although the concepts of ‘proximity’ advanced by Gibbs CJ and by Deane J themselves were quite different. Also important in this case were Brennan J’s concepts of ‘normal fortitude’ and ‘sudden shock’.
There were a number of Australian, English, United States and Canadian cases involving claimants suffering psychiatric injury as a result of accidents involving their children or spouses in the time between Pusey and Jaensch. All grappled with the extent to which the claimant was required to have had some appreciation of, or involvement in, the relevant accident. Hinz v Berry133 was a claim made by a mother and wife who suffered psychiatric injury as a result of witnessing a motor vehicle accident involving her husband and children. Mr and Mrs Hinz had pulled to the side of the road in their car to have tea, and whilst Mr Hinz and their children stayed in the car, Mrs Hinz and one of the children crossed the road to pick flowers. At that point, the defendant, Mr Berry, came round the corner in his car and crashed into the Hinzs’ car, horrifically injuring Mr Hinz and the children in the car. Mr Hinz died soon afterwards, and the children were all badly injured, although they survived. Upon hearing the crash, Mrs Hinz turned around and saw the disaster. She suffered psychiatric injury as a result and was awarded damages.134
132 Jaensch v Coffey (1984) 155 CLR 549, 555-6 (Gibbs CJ), 557-8 (Murphy J), 578 (Brennan J), 611 (Deane J), 612 (Dawson J). For a critique of the immediate aftermath rule, see Peter Handford, Mullany & Handford’s Tort Liability for Psychiatric Damage (Thomson Lawbook Co, 2nd ed, 2006) 238-9. 133 [1970] 1 All ER 1074. 134 The primary issue in this case was whether the extent of damages awarded at trial was excessive, with the Court of Appeal finding that although the amount awarded was high, it was nonetheless
257
Less clear was whether there could be liability where the claimant did not directly witness an accident involving a loved one. A few years before Hinz, the Saskatchewan Court of Appeal in Abramzik v Brenner135 suggested not, finding against a claimant who suffered psychiatric injury after the death of her two children in a motor vehicle accident, on the basis that she had not witnessed the accident, only becoming aware of it after being informed by her husband. However, a few years after Abramzik, the Ontario High Court in Marshal v Lionel Enterprises Inc136 extended the range of phenomena claimants were required to perceive by finding that a claimant was not disentitled to bring a claim for psychiatric injury simply because she had not actually seen the accident involving her husband, instead finding him injured shortly afterwards.137
There was a similar finding a year later in the Victorian Supreme Court in Benson v Lee,138 in which the claimant suffered psychiatric injury as a result of an accident involving her son. The claimant in this case was 100 yards away from the accident and did not see or hear it, only being informed about it by another one of her children. Upon learning of the accident, she fled immediately to the accident site and there saw her child unconscious. She stayed with him in the ambulance on the way to hospital. Shortly after arriving at the hospital, she was told that her son had died. In the Supreme Court of Victoria, Lush J rejected the defendant’s argument that the claim should fail on the basis that the claimant did not see or hear the accident, and was not in any physical danger herself.139
Lush J made it clear that the claimant’s involvement in the immediate aftermath of the incident was an important factor in finding in her favour. His Honour held that the factors of direct perception of an incident or physical danger could not be treated as preconditions to liability since The Wagon Mound (No. 1) had established – or perhaps re-established – that reasonable foreseeability of damage was the ‘basic element of liability for negligence.’140 Rather than regarding the particular rules previously applied in such cases as continuing to limit the ambit
appropriate given the horrific and tragic circumstances of the case: ibid 1075 (Lord Denning MR), 1077-8 (Lord Pearson), 1078 (Sir Gordon Willmer). 135 (1967) 65 DLR (2d) 651. 136 (1971) 25 DLR (3d) 141. 137 Ibid. 138 [1972] VR 879. 139 Ibid 880. 140 Ibid.
258 of liability, Lush J regarded these as being individual applications of the general test of foreseeability.141 His Honour stated that if the requirement for direct perception was to remain, it was satisfied in the present case. This was because although the claimant did not see the accident itself, she did perceive some of the particular events which went to make up the whole of the incident, including the immediate aftermath of the accident.142
The question of what the claimant was required to perceive was once again the focus of enquiry in the case of Pratt & Goldsmith v Pratt,143 although in Pratt the claimant did not at any point come to the scene of the accident or to the hospital. Rather, the claimant in this case suffered psychiatric injury as a result of observing the physical and mental injuries of her daughter over many months. The claimant’s daughter had been injured in a motor vehicle accident caused by the defendant’s negligence and incapacitated as a result, requiring constant care which was provided by the claimant. The claimant’s psychiatric injury was regarded by the Supreme Court of Victoria as resulting not simply from the injury to her daughter, but rather because of circumstances and events – including providing care to the daughter – which occurred a substantial period of time after the accident.
Referring to McTiernan J’s judgment in Pusey and Evatt J’s dissenting judgment in Chester for support, Adam and Crockett JJ in the Victorian Court of Appeal held that in order for a claimant to make out a claim, they were required to show that psychiatric injury was ‘fairly contemporaneous’ with the accident.144 Although Adam and Crockett JJ regarded the appropriate duty test to be the Donoghue v Stevenson145 test of reasonable foreseeability, their Honours regarded the duty of road users as extending only so far as those who were, by their location, placed at risk of physical harm.146 Starke J also found such a consideration as being relevant to the question of proximity.147 On this basis, Adam and Crockett JJ were of the view that those suffering injury as a result of caring for someone who has been negligently injured were not owed a duty of care, and the claimant’s claim should fail.148 Their Honours did not
141 Ibid. 142 Ibid. 143 [1975] VR 378. 144 Ibid 385. 145 [1932] AC 562. 146 [1975] VR 378, 383. 147 Ibid 391. 148 Ibid 384. Starke J took a similar view finding against the claimant on this basis: at 391-2.
259 regard this as being a matter of logic, but rather a matter of policy, based on the view that the test of reasonable foreseeability was not able to provide a solution.149
Matters of policy were again considered relevant in deciding the issue of the extent of liability a year later in the New South Wales Court of Appeal in Rowe v McCartney.150 In Rowe, the Court of Appeal found against a claimant who suffered psychiatric injury as a result of persistent feelings of guilt due to her involvement in an accident which catastrophically injured her friend. The claimant in this case had reluctantly agreed to let her friend drive her car, fearing he would not be able to drive it with sufficient control due to his inexperience. This fear proved to be well-founded when the claimant’s friend crashed the car into a pole, and as a result, was rendered a quadriplegic. The claimant herself suffered severe physical injuries as a result of the crash, along with psychiatric injury caused by guilt due to her part in causing her friend’s injuries.
A majority made up of Moffitt J and Samuels JA in Rowe found against the claimant on the basis that her psychiatric injury was outside of the category of injuries which were reasonably foreseeable as a consequence of the defendant’s negligence.151 However, they came to this decision through slightly different routes. Moffitt J found that the claimant’s guilt was illogical and irrational and therefore not what one would expect ‘from a reasonable mind’. As such, the only connection the claimant’s psychiatric injury had with the accident was for Moffitt J ‘irrational’, which meant that the claimant’s damage was ‘external to…the negligent act.’152 On the other hand, Samuels JA was of the view that existing principles did not provide adequate guidance in this case, and, referring to Windeyer J in Pusey, Lord Wright in Bourhill, and Lord Denning in Dorset Yacht Co Ltd153 as authority, held that the court was to have regard to policy considerations in order to come to a decision.154 Attempting to set a limit on liability at some point ‘between the broadest of categories’ – which would ‘reintroduce liability for direct consequences’ – and the narrowest of categories – which would ‘promote uncertainty and
149 Ibid 384. Adam and Crockett JJ were of the view that a requirement of physical proximity was consistent with the findings in Dorset Yacht Co Lt v Home Office [1970] 2 All ER 294 and Storm v Geeves [1965] Tas SR 252. 150 [1976] 2 NSWLR 72. 151 Ibid 76 (Moffitt J), 89-90 (Samuels JA); Glass JA dissenting, at 79-83 152 Ibid 76. 153 [1970] 2 All ER 294. 154 [1976] 2 NSWLR 72, 89.
260 provide distinctions of a disreputable nicety’ – his Honour found that psychiatric injury caused by feelings of guilt was not harm of a category which was foreseeable.155
Glass JA in dissent held that the appropriate test of foreseeability, as applied in Chapman v Hearse156 and Pusey, was one of general application, which accordingly should not be concerned with foreseeability of damage of a particular kind. In light of this view, his Honour found that the claimant’s psychiatric injury was not too remote, as injury to a passenger was clearly a reasonably foreseeable consequence of the negligence of a driver of a motor vehicle.157 It was not important to Glass JA that the claimant’s guilt was one of a number of factors contributing to her injury. Rather, his Honour was of the view that the claimant’s idiosyncratic response to the accident did not render ‘legally inoperative the contribution also made by the breach of duty and its consequences.’158 Furthermore, his Honour held that the claimant’s guilt as a result of the accident was not an act which severed the chain of causation. Rather, the claimant had not acted at all in relation to this guilt, as this was simply the claimant’s reaction to the accident. Consequently, her damage was not too remote.159
Perhaps the most important legal authority in this period was the House of Lords decision in McLoughlin v O’Brian.160 This was a case which was very similar to Jaensch, with the claimant suffering psychiatric injury as a result of a motor vehicle accident involving her husband and three of her children caused by the defendant’s negligence. The claimant’s husband and two older children – aged 17 and 7 years – suffered broken bones, cuts and bruises as a result of the accident, although all eventually recovered. However, the claimant’s three year old child died almost immediately at the accident scene. The claimant was at home around two miles from the scene at the time of the accident and so did not directly perceive it. She became aware of the incident around an hour afterwards when informed by a family friend who had been driving behind her husband’s car and had seen it occur. The family friend told the claimant that he thought her husband was dying, and that he did not know the condition of her children. She was then driven to the hospital by the friend, where she was informed that her three year-old
155 Ibid 89-90. 156 (1961) 106 CLR 112. 157 [1976] 2 NSWLR 72, 79, 80. 158 Ibid 82. 159 Ibid 82-3. 160 [1982] 2 All ER 298.
261 child was dead. She was then lead down a corridor to see her family, who were all upset and covered in blood and oil. The claimant suffered psychiatric injury as a result of these events.
Whilst the fact situation in McLoughlin was similar to those in Hinz and in Benson, with the claimant in each case suffering psychiatric injury as a result of an accident involving a loved one, there was one particular feature of McLoughlin which might have distinguished it from the other two. In both Hinz and Benson, it could be said that the claimant directly witnessed some part of the accident event itself, this being the accident itself a few moments after it occurred in the former case, and the accident scene where the child lay badly injured a few minutes after it occurred, in the latter. The same could not be said of the claimant in McLoughlin, who saw her injured family at the hospital around an hour after the accident. This was also the case in Jaensch.
Notwithstanding this potential point of difference, the House of Lords found for the claimant.161 All of their Lordships thought that psychiatric injury to the claimant was reasonably foreseeable in the circumstances and that liability ought to be extended to encompass immediate aftermath situations. Lords Scarman and Bridge thought that the test of reasonable foreseeability was the only relevant test of duty in cases of negligently inflicted psychiatric injury,162 whilst Lords Wilberforce, Edmund-Davies and Russell regarded the boundaries of liability appropriately determined by matters of public policy.163 Neither Lord Edmund-Davies nor Lord Russell actually specified which matters of public policy might have an effect on the present case, with the former stating simply that floodgates arguments were unconvincing,164 and the latter stating that references to relationships or other circumstances tended to do more harm than good.165
On the other hand, Lord Wilberforce stated:
there remains, in my opinion, just because ‘shock’ in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation on the extent of admissible claims. It is necessary to consider three elements inherent in any claim: the class of persons whose
161 Ibid 302 (Lord Wilberforce), 309 (Lord Edmund-Davies), 309-10 (Lord Russell of Killowen), 311 (Lord Scarman), 320 (Lord Bridge of Harwich). 162 Ibid 310 (Lord Scarman), 320 (Lord Bridge of Harwich). 163 Ibid 303 (Lord Wilberforce), 307-8 (Lord Edmund-Davies), 309-10 (Lord Russell of Killowen). 164 Ibid 307. 165 Ibid 310.
262
claim should be recognised; the proximity of such persons to the accident; and the means by which shock is caused.166
His Honour then made further comments regarding each element and its effect on the question of liability. In relation to the potential classes of claimant, His Honour regarded there as being a continuum of closeness of relationship, with parents and children on one polar end, and unrelated bystanders on the other. Lord Wilberforce stated that the law recognised claims involving the former relationships, although generally not the latter. He did not go so far as saying such claims should never be allowed, simply stating that they should be carefully scrutinised.167 As to proximity of such persons to the accident, His Honour stated that this must be close in time and in space, although to insist on direct perception would be ‘impractical and unjust.’168 As such, those witnessing the immediate aftermath of an accident should not be excluded.169
There were other more general legal developments relating to the law of negligence by the time of Jaensch. A few years after The Wagon Mound No 2, the High Court of Australia in Wyong Shire Council v Shirt170 gave further indication of the degree of risk that was required before it could be concluded that this risk was reasonably foreseeable. Expressing a view which was similar to that expressed by the Judicial Committee in The Wagon Mound No 2, Mason J stated that a risk was reasonably foreseeable when it was one which was not ‘far-fetched or fanciful.’171 This meant that the test of reasonable foreseeability was not one of probability, but was rather a test of possibility.172
166 Ibid 304. 167 Ibid. 168 Ibid. 169 Ibid. 170 (1980) 146 CLR 40. 171 Ibid 47. 172 See, eg, Des Butler, Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996) 123-4; citing School Division of Assinibione South No. 3 v Hoffer (1971) 21 DLR (3d) 608, 613.
263
7.3.1 Prevailing understandings of the causes of psychiatric disorder
By modern scientific understandings, the trauma of witnessing a loved one in a state of near- death following a motor vehicle accident is aetiologically-related to PTSD,173 as well as to depressive disorders and anxiety disorders other than PTSD.174 It was also well-understood by experts in the field at the time of the accident in Jaensch that the type of trauma experienced by Mrs Jaensch was aetiologically-related to the onset of mental disorders. Since Pusey, research by Horowitz, Terr, Krystal, and Figley had added to the body of knowledge regarding the relationship between psychiatric disorders and trauma, showing the similarities between the wartime and civilian aspects of the symptomatology of PTSD.175 These researchers started to reach general agreement that the symptoms suffered by soldiers returning from the Vietnam war and those who had experienced other types of terrifying or life-threatening event (such as rape or assault) were similar, such that it was concluded that these symptoms were part of a common disorder.176 The newly defined disorder PTSD subsumed a number of different
173 Mardi J Horowitz, ‘Stress-Response Syndromes: A Review of Posttraumatic Stress and Adjustment Disorders’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 54. 174 See ML Bruce, K Kim, Leaf PJ and S Jacobs, ‘Depressive Episodes and Dysphoria Resulting from Conjugal Bereavement in a Prospective Community Sample’ (1990) 147 American Journal of Psychiatry 608; PJ Clayton, ‘Bereavement and Depression’ (1990) 51 Journal of Clinical Psychiatry 34; S Zisook and S Schuster, ‘Uncomplicated Bereavement’ (1993) 54 Journal of Clinical Psychiatry 365; cited in Lisa C Barry, Stanislav V Kasl and Holly G Prigerson, ‘Psychiatric Disorders Among Bereaved Persons: The Role of Perceived Circumstances of Death and Preparedness for Death’ (2002) 10(4) American Journal of Geriatric Psychiatry 447, 447; GJA Byrne and B Raphael, ‘The Psychological Symptoms of Conjugal Bereavement in Elderly Men Over the First 13 Months’ (1997) 12 International Journal of Geriatric Psychiatry 241; Lisa C Barry, Stanislav V Kasl and Holly G Prigerson, ‘Psychiatric Disorders Among Bereaved Persons: The Role of Perceived Circumstances of Death and Preparedness for Death’ (2002) 10(4) American Journal of Geriatric Psychiatry 447, 447. 175 See MJ Horowitz, Stress Response Syndromes (Jason Aronson, 1978); LC Terr, ‘Children of Chowchilla: A Study of Psychic Trauma’ (1979) 34 Psychoanalytic Study of the Child 552; H Krystal, ‘Trauma and Affects’ (1978) 33 Psychoanalytic Study of the Child 81; C Figley, Stress Disorders Among Vietnam Veterans: Theory, Research and Treatment Implications (Brunner/Mazel, 1978); cited in Bessel A van der Kolk, Lars Weisaeth and Onno van der Hart, ‘History of Trauma in Psychiatry’, in Bessel A van der Kolk and Alexander C McFarlane (eds), Traumatic Stress: The Effects of Overwhelming Experience of Mind, Body, and Society (Guilford Publications, 2007) 62. 176 Richard J McNally, ‘Posttraumatic Stress Disorder’ in Benjamin James Sadock, Virginia Alcott Sadock and Pedro Ruiz (eds), Kaplan & Sadock’s Comprehensive Textbook of Psychiatry Vol II (Lippincott Williams & Wilkins, 9th ed, 2009) 2651; Bessel A van der Kolk, Lars Weisaeth and Onno van der Hart, ‘History of Trauma in Psychiatry’, in Bessel A van der Kolk and Alexander C McFarlane (eds), Traumatic Stress: The Effects of Overwhelming Experience of Mind, Body, and Society (Guilford Publications, 2007) 60-1.
264 syndromes, including rape trauma syndrome, battered woman syndrome, Vietnam veteran’s syndrome, and abused child syndrome.177
The injury suffered by Mrs Jaensch was also related in part to the trauma of fearing the loss of a spouse. In the time between 1917 – when Freud’s Mourning and Melancholia argued that there is a strong association between the loss of a loved one and subsequent mental disorder178 – and the 1980s, there were important developments in scientific understandings of the nature of bereavement as a precipitating factor in the onset of mental disorders. In particular, the phenomenon of grief started to be studied systematically in the 1940s when Lindemann provided an account of the symptoms of grief experienced by survivors of the Cocoanut Grove Fire.179 Lindemann described grief as a process involving typical symptoms and a predictable course, a finding which was subsequently supported by the work of other researchers such as Pollock,180 Clayton,181 Glick,182 Parkes,183 Parkes and Weiss,184 and Raphael.185
By the 1980s there were a number of models which attempted to explain the bereavement process. The psychoanalytic model was based on Freudian theory and held that the grieving process involved surrendering the tie with a loved object, a process which was intensely painful.186 Other theoretical perspectives also shed light on this process. Interpersonal and
177 Bessel A van der Kolk, Lars Weisaeth and Onno van der Hart, ‘History of Trauma in Psychiatry’, in Bessel A van der Kolk and Alexander C McFarlane (eds), Traumatic Stress: The Effects of Overwhelming Experience of Mind, Body, and Society (Guilford Publications, 2007) 61. 178 See S Freud, ‘Mourning and Melancholia’ in Leticia Glocer Fiorini, Thierry Bokanowski, and Sergio Lewkowicz, On Freud’s ‘Mourning and Melancholia’ (Karnac Books, 2009) 43-4. This is discussed above at 5.3.1. 179 E Lindemann, ‘Symptomatology and Management of Acute Grief (1944) 101 American Journal of Psychiatry 141: cited in Marian Osterweis, Fredric Solomon, and Morris Green (eds), Bereavement: Reactions, Consequences, and Care (National Academy Press, 1984) 48. 180 GH Pollock, ‘Mourning and Adaptation’ (1961) 42 International Journal of Psychoanalysis 341. 181 PJ Clayton, L Desmarais, and G Winokur, A Study of Normal Bereavement’ (1968) 125 American Journal of Psychiatry 168. 182 IO Glick, CM Parkes, and R Weiss, The First Year of Bereavement (Basic Books, 1975). 183 CM Parkes, ‘The First Year of Bereavement’ (1970) 33 Psychiatry 422; CM Parkes, Bereavement (Tavistock, 1972). 184 CM Parkes and RS Weiss, Recovery from Bereavement (Basic Books, 1983). 185 B Raphael, ‘Preventive Intervention with the Recently Bereaved’ (1977) 34 Archives of General Psychiatry 1450; B Raphael, The Anatomy of Bereavement (Basic Books, 1983). See Marian Osterweis, Fredric Solomon, and Morris Green (eds), Bereavement: Reactions, Consequences, and Care (National Academy Press, 1984) 48 186 Marian Osterweis, Fredric Solomon, and Morris Green (eds), Bereavement: Reactions, Consequences, and Care (National Academy Press, 1984) 58.
265 attachment theory models placed emphasis on the nature of the particular relationship with the deceased person, and the social meaning of the disruption of this relationship caused by the death of the loved person.187 Crisis theory at this time held that bereavement involved the disruption of the person’s emotional homeostasis which could magnify pre-existing personality issues and problematic ways of coping.188 By contrast, cognitive and behavioural theories understood the process of bereavement from the perspective of how one structured the world in one’s own mind, focussing principally on psychological processes.189 Research by Bowlby and Parkes and by Kubler-Ross by this time presented perhaps the most influential models of grief, with each suggesting that grief was experienced in stages.190
Research had by this time further shown that the particular relationship that existed with the deceased had a large effect on the particular difficulties experienced following bereavement, as did the nature of the death.191 In particular, it was known that those who were in ambivalent relationships – that is, relationship which were not consistently loving and supportive – and those who were unable to function well independently were less likely to cope following spousal bereavement.192 By the 1980s, it was also understood that loss of the spouse was strongly associated with increased rates of mental disorder, suicide, and mortality.193 Indeed, it is significant in the context of the accident affecting Mrs Jaensch that it was understood by this
187 Ibid 59. 188 Ibid. 189 Ibid. 190 J Bowlby and CM Parkes, ‘Separation and Loss Within in Family’, in EJ Anthony and CJ Koupernik (eds), The Child in His Family: International Yearbook of Child Psychiatry and Allied Professions (Wiley, 1970) 197-216; E Kubler-Ross, On Death and Dying (Tavistock, 1970). 191 Marian Osterweis, Fredric Solomon, and Morris Green (eds), Bereavement: Reactions, Consequences, and Care (National Academy Press, 1984) 37. 192 CM Parkes and RS Weiss, Recovery from Bereavement (Basic Books, 1983): cited in Marian Osterweis, Fredric Solomon, and Morris Green (eds), Bereavement: Reactions, Consequences, and Care (National Academy Press, 1984) 37. 193 Penelope Burdette-Finn, Evaluation of a Model for Prevention of Maladjustment in Young Widows (PhD Thesis, Graduate School of Loyola University of Chicago, 1979) 2; ES Paykel, JK Myers, MN Dienelt, and GL Klerman, ‘Life Events and Depression: A Controlled Study’ (1969) 21 Archives of General Psychiatry 753; CM Parkes and R Brown, ‘Health After Bereavement: A Controlled Study of Young Boston Widows and Widowers (1972) 34 Psychosomatic Medicine 449: cited in Marian Osterweis, Fredric Solomon, and Morris Green (eds), Bereavement: Reactions, Consequences, and Care (National Academy Press, 1984) 27.
266 time that of all of the traumatic events which could be experienced, the death of a spouse was perhaps the most traumatic of all.194
In assessing the ability of the ordinary member of the community to appreciate the risk of psychiatric injury as a result of being exposed to trauma, there are a number of telling pieces of evidence which can referred to. Historian Simon Wessely has argued that the inclusion of the newly defined disorder PTSD into the DSM-III in 1980 (partly as a result of lobbying by Vietnam veterans’ groups) was a moment of cultural significance. This was not so much related to the official recognition of the link between the trauma of war and psychiatric disorders – this was already clear after World War I – as it was to the recognition that psychiatric disorders could be suffered by any person exposed to traumatic stress, regardless of their genes or their upbringing.195 However, there are three further pieces of evidence which shed particular light on common understandings.
The first relates to very prominent problem of automobile accidents in the mid-to-late twentieth century. By the mid-twentieth century, automobile accidents were one of the leading causes of death throughout the world.196 In 1937 alone, the total number of road fatalities reported in the 47 Member States of the World Health Organization came to more than 100,000.197 More concerning is that the numbers of automobile accidents causing serious injury and death continued to rise in Australia, Britain, and the United States of America from the mid-twentieth century until the time of the accident in Jaensch. In 1958, the death rate as a result of automobile accidents per 100,000 people was 24.0 in Australia, 13.3 in Britain, and 20 in the United States.198 By 1977, although the death rate per 100,000 people had sightly declined in Britain – falling from 13.3 in 1958 to 13.0 in 1977 – the comparable rate rose in both Australia – from 24.0 in 1958 to 26 in 1977 – and in the United States – from 20 in 1958 to 23 in 1977.199 The statistics were particularly alarming in relation to young men. In 1958, deaths caused by
194 See TH Holmes and RH Rahe, ‘The Social Readjustment Rating Scale’ (1967) 11 Journal of Psychosomatic Research 213: cited in Marian Osterweis, Fredric Solomon, and Morris Green (eds), Bereavement: Reactions, Consequences, and Care (National Academy Press, 1984) 27. 195 Simon Wessely, Twentieth-Century Theories on Combat Motivation and Breakdown’ (2006) 41(2) Journal of Contemporary History 269, 282. 196 See LG Norman, ‘Road Traffic Accidents: Epidemiology, Control and Prevention’ (World Health Organization, 1962) 9-10. 197 Ibid 13. 198 Ibid 21-3. 199 See Barbara Preston, Road Safety: International Comparisons’ (1981) 1(1) Transport Reviews 75, 77.
267 automobile accidents in males aged 20-24 per 100,000 people were 82.6 in Australia, 38.6 in Britain, and 72.5 in the United States, this being higher in each country than the numbers of deaths caused by infectious and parasitic disease, tuberculosis, malignant neoplasms, and cardiovascular diseases combined.200 There is reason also to suggest that this significant social problem was likely to have been reasonably well-known in the general community in Australia, at least to those familiar with the newspapers. Articles describing automobile accidents resulting in death and injury were not uncommon in the Australian newspapers from the mid- twentieth century up until the 1980s,201 as were articles highlighting the very high numbers of deaths on the roads.202
The second piece of evidence regarding common understandings relates to the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), discussed above in relation to Chester.203 In the wake of Chester the New South Wales Parliament enacted this legislation extending liability not only to parents who had suffered injury as a result of the death of a child but also to husbands and wives who suffered injury as a result of the death of a spouse. As the debates in the New South Wales Parliament debates make clear, the general community was in the 1940s well-aware that there was a risk of psychiatric injury due to the death of a child or the due to the death of a spouse. Such an extension of liability enabled those to whom the risk of psychiatric injury was commonly appreciable to make a claim in negligence, this extension
200 See LG Norman, ‘Road Traffic Accidents: Epidemiology, Control and Prevention’ (World Health Organization, 1962) 16. 201 See, eg, Argus, ‘31 Victoria Crash Deaths This Month’, 26 May 1947, 1; Cootamundra Herald, ‘Accident Ahead’, 4 March 1952, 3; Advocate, ‘Manslaughter Charge Follows Fatal Accident’, 19 July 1946, 2; Gippsland Times, ‘Maffra Level Crossing Fatality’, 25 July 1946, 5; Lithgow Mercury, ‘Just For Today’, 29 November 1950, 2; Age, ‘Several Hurt in Road Accidents’, 25 March 1950, 3. 202 See, eg, Daily Advertiser, ‘High Ratio of Fatal Road Accidents’, 20 August 1947, 4; Truth, ‘State of Roads Blames for Accident Toll’, 19 June 1949, 44; Argus, ‘Death Still Rides the Roads’, 30 November 1950, 2; Warwick Daily News, ‘Death on the Roads’, 7 December 1950, 2; Cobram Courier, ‘Startling Facts on Road Accidents’, 27 September 1951, 6; Cumberland Argus, ‘Motor Casualties’, 25 June 1952, 8; Daily Advertiser, ‘Accident Figures in Britain’, 29 July 1952, 4; World’s News, ‘Family Car- America’s Most Deadly Weapon’, 27 March 1954, 21; Central Queensland Herald, ‘Motor Accident Insurance Losses Mounting’, 27 October 1955, 26; Biz, ‘Road Accidents Appalling’, 4 February 1959, 13; Biz, ‘500,000 People in Road Smashes’, 4 December 1963, 11; Canberra Times, ‘Drive for Safer Car in US’, 29 July 1967, 9; Canberra Times, ‘Traffic Accidents in 1967’, 26 November 1968, 14; Canberra Times, ‘Road Toll ‘National Tragedy’’, 21 November 1978, 13; Canberra Times, ‘Doctors Appeal for Steps to Reduce the Road Toll’, 22 October 1980, 22; Canberra Times, ‘US Statistics: Road Deaths Rise With Smaller Cars’, 27 May 1981, 6; Canberra Times, ‘Hazard of Driving in Australia’, 21 May 1982, 2. 203 At section 6.2.1.
268 neither being excessive nor extravagant, instead being necessary to ensure that defendants could be held liable where their actions had resulted in readily foreseeable injury to another.
The third and perhaps most important piece of evidence regarding common understandings is that the subject of grief suffered due to the loss of a spouse and resulting mental disorder is a topic which has often appeared in popular culture, in art, literature, and in music.204 Indeed, there are many examples in the twentieth and early twenty first centuries of popular literature in which unbridled grief suffered due the loss of a spouse is a central theme.205 Considering the
204 National Research Council, Bereavement: Reactions, Consequences, and Care (National Academies Press, 1984) 3. This is a subject which has appeared in popular culture for centuries. For example, the tale of Orpheus and Eurydice from Ancient Greek mythology and Shakespeare’s Romeo and Juliet both tell of the immense grief of losing a spouse. More recent poetry focussing on this topic includes Emily Dickinson’s ‘After Great Pain, A Formal Feeling Comes’ written in the mid-nineteenth century (see Ralph W Franklin (ed), The Poems of Emily Dickinson: Reading Edition (The Belknap Press of Harvard University Press, 1998)), Christina Rosetti’s poem entitled ‘Echo’ (see RW Crump (ed), The Complete Poems of Christina Rossettie, Vol I (Louisiana State University Press, 1979)), and Conrad Aiken’s poem ‘Bread and Music’. Aiken’s poem is an exceptional example of the all-consuming nature of spousal grief, capturing a moving image of the loss of love and companionship in the banal daily activities of life:
Music I heard with you was more than music, And bread I broke with you was more than bread; Now that I am without you, all is desolate; All that was once so beautiful is dead.
Your hands once touched this table and this silver, And I have seen your fingers hold this glass. These things do not remember you, belovèd, And yet your touch upon them will not pass.
For it was in my heart you moved among them, And blessed them with your hands and with your eyes; And in my heart they will remember always,— They knew you once, O beautiful and wise.
205 See, eg, William Faulkner, As I Lay Dying (Vintage, 1930) (tells of the grief of the loss of a wife and a mother); James Agee, A Death in the Family (Vintage, 1957) (grief of a family over the death of a husband and father); CS Lewis, A Grief Observed (Faber and Faber, 1961) (tells of the author’s grief following the death of his wife); Peter Washington, Poems of Mourning (Everyman’s Library, 1998) (collection of poems discussing mourning, including the grief of losing a spouse); Joan Didion, The Year of Magical Thinking (Vintage, 2005) (grief over the death of the author’s husband); Donald Hall, The Best Day the Worst Day: Life with Jane Kenyon (Mariner Books, 2005) (grief over the loss of a spouse); David Plante, The Pure Lover: A Memoir of Grief (Beacon Press, 2009) (grief over the loss of a spouse); Christopher Reid, A Scattering (Arete, 2009) (grief over the death of a wife); Kay Redfield Jamison, Nothing Was the Same (Knopf, 2009) (account of grief due the death of the author’s husband); Joyce Carol Oates, A Widow’s Story: A Memoir (Harper Collins, 2007) (the author tells of her grief after the death of her husband of 46 years); Francisco Goldman, Say Her Name (Grove Press, 2011);
269 popularity of the loss of a spouse as a theme in literature in the twentieth and early twenty first centuries, it is not surprising that this subject has also commonly been an important subject in cinema. Films in which this theme has been used include ‘Shadows of Forgotten Ancestors’ (1965),206 ‘Dialogue With a Woman Departed’ (1971),207 ‘Last Tango in Paris’ (1972),208 ‘Obsession’ (1976),209 ‘The Green Room’ (1978),210 ‘No End’ (1985),211 ‘Truly, Madly, Deeply’ (1990),212 ‘Ghost’ (1990),213 ‘Three Colours Blue’ (1993),214 ‘21 Grams’ (2003),215 ‘Birth’ (2004),216 ‘Things We Lost in the Fire’ (2007),217 and ‘A Single Man’ (2009).218
Further evidencing the community’s likely understanding of the link between the loss of a spouse and mental disorder rather than simply ordinary grief is that many instances can be found in the newspapers in Australia in the early-to-mid-twentieth century discussing the total mental breakdown of a husband or a wife following the death of a spouse.219 Some sombre examples serve to illustrate this point. In Perth’s Truth newspaper, a story entitled ‘Cruel Fate’s Merciless Torture of Westralian Family’ appeared on 5 October 1930 telling of the sad state of
Anne Tyler, The Beginner’s Goodbye (Knopf, 2012); Sonali Deraniyagala, Wave (Knopf, 2013) Karen Green, Bough Down (Siglio, 2013). See http://whatsyourgrief.com/32-books-about- death-and-grief. 206 Tells of a man’s grief after the death of his lover. 207 Tells of filmmaker’s grief over the death of his wife. 208 Grief suffered by husband after the death by suicide of his wife. 209 Tells of a man’s grief after the deaths of his wife and daughter. 210 Grief over the death of a wife. 211 Tells of a wife’s grief after the death of her husband. 212 Grief over the loss of a spouse. 213 A husband grieves over the death of his wife. 214 Tells of a wife and mother’s grief over the loss of her husband and daughter in an accident. 215 Grief over the death of a husband and a daughter in an accident. 216 A woman’s grief over the death of her husband. 217 Grief over the loss of a wife. 218 Grief over the death of a spouse. See http://www.imdb.com/list/ls073523869/. 219 See, eg, Truth, ‘Cruel Fate’s Merciless Torture of Westralian Family’, 5 October 1930, 9; Telegraph, ‘“Wanted to See her Son” Woman Found Drowned. Evidence at Inquest’, 16 August 1932, 10; Singleton Argus, ‘Echo of R101 Disaster. Tragedy Recalled’, 4 November 1932, 2; Townsville Daily Bulletin, Supreme Court. Civil Sittings’, 9 August 1934, 9; Newcastle Sun, ‘He Left Estate of £30,000. Grief Stricken Man’s Suicide Note’, 18 February 1935, 7; Recorder, ‘Suicide’s Estate Worth £30,000. “Life a Dull Affair”’, 19 February 1935, 1; News, ‘Estate of Suicide Valued at £30,000. Found Dead at Office’, 18 February 1935, 7; Age, ‘Estate Valued at £30,000. Left by Sydney Business Man’, 19 February 1935, 13; Truth, ‘Society Woman’s Death. Found Gassed in Her Flat’, 4 July 1937, 1; Gippsland Times, ‘Wanders About With Cut Throat’, 13 March 1939, 1; Barrier Daily Truth, ‘Suicide Verdict in Hospital Balcony Case’, 23 January 1943, 3; Argus, ‘Three Children and Father Found Dead. Woman Severely Hurt’, 21 January 1944, 5; West Australian, ‘Fatal Poisoning. Inquest into Widow’s Death’, 14 November 1946, 3; Newcastle Morning Herald and Miners’ Advocate, ‘Widow Wins Two Verdicts’, 3 October 1952, 5; Australian Women’s Weekly, ‘When a Spouse Dies’, 19 February 1969, 37.
270 affairs which had engulfed the Ganderton family earlier that year. The article explains that in April 1930, an intruder into the Ganderton’s family home subjected Mrs Ganderton to a distressing ordeal in her bedroom. Following the intruder’s conviction and imprisonment in June of that year, Mrs Ganderton was taken to hospital in a distressed state, shortly after which, she and her unborn child died. Mr Ganderton, being grief stricken, was unable to take care of his remaining three children, and was forced to send them to an orphanage. The story tells the distressing tale of Mr Ganderton’s all-consuming grief leading to his eventual suicide three months later:
But this week the distraught man reached the limit of man's endurance of adversity, and putting a gun to his temple ended it all — leaving behind letters which spoke of the mental torture he had endured.220
Sadly, this is not the only newspaper article telling the story of a person taking their own life following the death of their spouse. Another story of this kind appeared in the Newcastle Sun on 18 February 1935 concerning a Mr Victor Black of Waverton who suicided following the death of his wife. The article states that the coroner recorded that Mr Black’s condition was caused ‘through his ill-health and his nervous state following the death of his wife’.221 This story was also reported in the Port Pirie Recorder,222 the Adelaide News,223 and the Melbourne Age.224 Similarly, the Launceston Examiner published an article on 22 October 1935 telling the story of the death by suicide of a Mr John James, who was stricken by grief as a result of the death of his wife Daisy James.225
220 See Truth, ‘Cruel Fate’s Merciless Torture of Westralian Family’, 5 October 1930, 9. 221 See Newcastle Sun, ‘He Left Estate of £30,000. Grief Stricken Man’s Suicide Note’, 18 February 1935, 7. 222 Recorder, ‘Suicide’s Estate Worth £30,000. “Life a Dull Affair”’, 19 February 1935, 1. 223 News, ‘Estate of Suicide Valued at £30,000. Found Dead at Office’, 18 February 1935, 7. 224 Age, ‘Estate Valued at £30,000. Left by Sydney Business Man’, 19 February 1935, 13. 225 Examiner, ‘Death of Wife. Frantic Husband’s Suicide. Pitiful Case’, 22 October 1935, 7. Similar stories of this kind in the Australian newspapers include: Truth (Sydney), ‘Society Woman’s Death. Found Gassed in Her Flat’, 4 July 1937 (suicide of woman following death of her husband); Truth (Brisbane), ‘Woman Who Won Damages Suit Suicides. Accident Sequel’, 4 July 1937, 18 (same story); Gippsland Times, ‘Wanders About With Cut Throat. Now Recovering in Hospital’, 13 March 1939, 1 (man’s attempted suicide following the death of his wife); Barrier Daily Truth, ‘Suicide Verdict in Hospital Balcony Case’, 23 January 1943, 3 (man suicides following wife’s death); Argus, ‘Three Children and Father Found Dead. Woman Severely Hurt’, 21 January 1944, 5 (man’s murder-suicide of himself and his three children following nervous breakdown caused by wife’s death); Advertiser, ‘Three Children and Father Dead. S.A. Man’s Tragedy in Tasmania’, 21 January 1944, 5 (same incident); Chronicle, ‘Tragedy in Tasmania. Victims Came From S.A.’, 27 January 1944, 3 (same incident); West
271
Other examples can be found in the newspapers telling of death of a spouse by grief, rather than as a result of suicide. The Singleton Argus in New South Wales printed a story on 4 November 1932 telling of the death of a Mrs Johnson in a nursing home in London. Mrs Johnson’s husband had been killed 2 years previously in an air disaster in France, and, ‘suffering from a broken heart’, had experienced ‘a series of nervous troubles’, exacerbated by the death of her daughter. Mrs Johnson’s death was ultimately attributed to her nervous condition.226 In another example, the Sydney Sun published an article on 10 November 1937 telling the story of the death of a Mrs Clara Allen ‘by accident’. Following the death of her husband, Mrs Allen was heartbroken and subsequently became ill. Mrs Allen’s body was discovered in a mud-pool one morning after visiting her husband’s grave late the previous evening.227 In another, the Southport South Coast Bulletin reported on 24 June 1953 of the death of a Mr C Pinnow, resulting from his collapse following the sudden death of his wife only 8 days previously.228
7.3.2 Corrective justice analysis of Jaensch
If it is accepted that the risk of psychiatric injury to the claimant was appreciable to an ordinary member of the community at the time of the accident, the decision in Jaensch can be understood as being principled. Indeed, it would have been an injustice to treat Mrs Jaensch’s psychiatric injury any differently at law to any foreseeable physical injury, the risk of which was appreciable as a matter of community understandings and expectations. The conceptual limits of the requirement for direct perception were extended in this case. The effect of the High Court’s decision was to allow the claim of a woman who did not perceive the accident occurring to her husband, but who saw and heard the immediate aftermath of the accident during the
Australian, ‘Domestic Tragedy. Three Children Dead. Father Found Hanged’, 21 January 1944, 4 (same incident); Kalgoorlie Miner, ‘Shocking Tragedy. Man Found Hanging. Three Children Battered to Death’, 21 January 1944, 4 (same incident); Port Lincoln Times, ‘Tragic End to Newell Family. Three Children and Father Dead. Sister-In-Law Injured’, 27 January 1944, 3 (same incident); Examiner, ‘Four Dead in West Tamar Tragedy: Fifth Critically Injured’, 21 January 1944, 4 (same incident); Army News, ‘Grim Tragedy at West Tamar’, 22 January 1944, 3; West Australian, ‘Fatal Poisoning. Inquest into Woman’s Death’, 14 November 1946, 3 (suicide of woman due to mental condition caused partly by the death of her husband). 226 See Singleton Argus, ‘Echo of R101 Disaster. Tragedy Recalled’, 4 November 1932, 227 Sun, ‘Woman’s Grief for Dead Husband’, 10 November 1937, 11. 228 South Coast Bulletin, ‘Passing of Mr Pinnow’, 24 June 1953, 28.
272 period of medical treatment in hospital straight afterwards.229 The law as it existed before Jaensch provided no definitive answer in such a case. Deane J noted the insufficiency of existing law to deal with this fact situation, stating that it was the proper function of judges to extend the law in cases such as the present.230
To the extent that the finding in Jaensch effectively relaxed a potential requirement for direct perception in cases where the accident victim was a loved one, this was principled. As explained above231 the direct perception consideration is not principled in relation to accidents involving the serious injury or death of loved ones as this factor has little bearing on whether the risk of psychiatric harm was appreciable at either a scientific or community level of understanding. It is possible that the High Court in Jaensch was cognisant of the injustice that would result from a strict application of a direct perception requirement, this then potentially providing the impetus to temper the harshness of this rule by extending the range of phenomena perception of which by the claimant would be sufficient to ground liability.232
Even in light of this extension, there are still a number of problematic aspects associated with a requirement for direct perception in cases involving death or injury to loved ones. Some claimants may be too upset to attend the scene of an accident, in which case the rule disallows these claims regardless of the merits of the case. In other circumstances, it may actually be impossible to attend the accident scene, unfairly ruling out these claims.233 If temporal boundary lines are drawn too strictly – as they went on to be done in England in Alcock – they
229 Jaensch v Coffey (1984) 155 CLR 549, 552. None of the judges in Jaensch stated explicitly that direct perception extended to the immediate aftermath of the accident in question. Rather, each simply found that the circumstances of the case were sufficient to meet their own view of the particular requirements of such a cause of action. This is in contrast to McLoughlin v O’Brian [1983] 1 AC 410, heard by the House of Lords in England at around the same time as Jaensch also involving an ‘immediate aftermath’ situation. The House of Lords in McLoughlin outlined more explicit boundary lines on what the immediate aftermath of an accident included: see section 7.3 for a discussion of McLoughlin v O’Brian [1982] 2 All ER 298. 230 Jaensch v Coffey (1984) 155 CLR 549, 600. 231 In section 6.3 in relation to Chester. 232 Peter Handford has advanced a similar point, arguing that the Australian courts had on many occasions tried to stretch the aftermath doctrine in order to find for deserving claimants: see Peter Handford, ‘When the Telephone Rings: Restating Negligence Liability for Psychiatric Illness (2001) 23 Sydney Law Review 597, 612. 233 See, eg, Des Butler, Damages for Psychiatric Injuries (The Federation Press, 2004) 111. For this reason, Handford argued that the aftermath doctrine was an undesirable mechanism to limit liability: Peter Handford, ‘Compensation for Psychiatric Injury: The Limits of Liability’ (1995) 2(1) Psychiatry, Psychology & Law 37, 43-4; Peter Handford, Mullany & Handford’s Tort Liability for Psychiatric Damage (Lawbook Co, 2nd ed, 2006) 239.
273 would inevitably be arbitrary.234 Crucially, as the rule suggests as a matter of logic that a boundary line of liability will be drawn based on the amount of time between an accident and the perception of that accident or its after-effects, the rule is ultimately unprincipled. Being unrelated to the question of whether the defendant was morally culpable for causing the claimant’s harm, this boundary line will ultimately treat some claimants’ interests less favourably than those of defendants. Not being based on principle, this boundary line, wherever it is ultimately drawn, will ultimately not be morally justifiable.
It is also arguable that the extension of liability by relaxing a requirement for direct perception was motivated by reasons which were consistent with the corrective justice approach advanced in Part II. It is significant that all High Court judges found for the claimant despite her not seeing or hearing the accident and despite suffering psychiatric injury as a result of a combination between what she saw and heard at the hospital and what she was later told by her husband’s treating doctors.235 All of the judges regarded the risk of psychiatric injury to the claimant to be readily appreciable in the circumstances. In particular, they all considered the closeness of the relationship between the claimant and her husband an important factor in coming the conclusion that psychiatric injury to the claimant was reasonably foreseeable.236
Gibbs CJ regarded closeness of the relationship to be the most important of Lord Wilberforce’s three proximity elements in McLoughlin. His Honour stated that a close relationship would generally satisfy the requirement for proximity with such a decision being readily justifiable on policy grounds.237 Similarly, Brennan J regarded the closeness of relationship as generally meaning that the defendant should have an awareness of a heightened susceptibility in the claimant to psychiatric injury.238 As to the exact extent of liability, Brennan J regarded the stopping point as something which should not be decided as a matter of law.239 Deane J thought liability extended to those witnessing events at the scene, as well extraction and treatment in an ambulance or at the hospital.240 Dawson J also thought that presence at the scene was not
234 Peter Handford, ‘Compensation for Psychiatric Injury: The Limits of Liability’ (1995) 2(1) Psychiatry, Psychology & Law 37, 43-4. 235 Jaensch v Coffey (1984) 155 CLR 549, 556 (Gibbs CJ), 558 (Murphy J), 578 (Brennan J), 608 (Deane J), 613 (Dawson J). 236 Ibid 555 (Gibbs CJ), 556 (Murphy J), 569 (Brennan J), 591 (Deane J), 613 (Dawson J). 237 Ibid 555. 238 Ibid 568-9. 239 Ibid 571. 240 Ibid 608.
274 required and that observation of the consequences of the accident in the ambulance or at the hospital might be sufficient.241
The decision in Chester was explicitly disapproved of by three of the judges, Gibbs CJ,242 Deane J243 and Dawson J,244 and implicitly rejected by the remaining two – Murphy J, who did not consider Chester,245 and Brennan J, who endorsed Evatt J’s dissenting judgment in that case.246 Furthermore, three of the judges, namely Gibbs CJ, Deane J and Dawson J, explicitly approved of the finding by the House of Lords in McLoughlin.247 The remaining two judges, Murphy J and Brennan J, did so implicitly. Murphy J stated that the facts in Jaensch suggested liability and found for the claimant,248 and Brennan J found for the claimant in circumstances similar to those in McLoughlin.249 Notably, only Gibbs CJ endorsed Lord Wilberforce’s three limiting proximity factors in McLoughlin.250 Brennan J rejected this approach holding that in Australia the categories were not closed.251
The second significant doctrinal finding in Jaensch was the finding by Gibbs CJ and Deane J that the question of duty involved the test of reasonable foreseeability in addition to a test of proximity. Their Honours both thought that the boundaries of liability ought to be limited by matters of public policy, with the test of reasonable foreseeability to be limited by the concept of proximity.252 Whilst Gibbs CJ endorsed Lord Wilberforce's notion of proximity, Deane J advanced his own approach to this concept.253 Both concepts of proximity are potentially consistent with the corrective justice approach based on common understandings, although as they are intended to limit the test of reasonable foreseeability, they are in their essence unprincipled.
241 Ibid 612. 242 Ibid 555. 243 Ibid 590. 244 Ibid 611. 245 Ibid 556. 246 Ibid 569. 247 Ibid 552 (Gibbs CJ), 599-600 (Deane J), 612 (Dawson J). 248 Ibid 556. 249 Ibid 578. 250 Ibid 553, 555. 251 Ibid 553, 571. 252 Ibid 555 (Gibbs CJ), 579, 580, 583 (Deane J). 253 Ibid 579-585.
275
Lord Wilberforce’s proximity is in some ways harmonious with the idea that moral responsibility for causing harm is to be determined by reference to community understandings and expectations. Those in a close relationship with the victim are treated as being more foreseeable than those who are not pursuant to this version of proximity, except when claimants are in the position of being rescuers. Rescuers are considered favourably by this concept as their actions in coming to the scene – despite being of their own will – are considered predictable.
Physical proximity can be an influential factor though it is not clear when it will be considered important in any particular case. It is consistent with community understandings and expectations to consider physical proximity in relation to accidents involving strangers, as the risk of psychiatric injury will be more appreciable to the ordinary member of the public in such cases where the claimant directly perceives scenes of horror. This in turn is more likely to occur when the claimant is physically close to the accident in question. However, physical proximity has little bearing itself on the ability of the ordinary person to appreciate the risk of psychiatric to another as a result of exposure to trauma. Furthermore, direct perception of scenes of horror is not relevant to the ability of the ordinary person to appreciate the risk of psychiatric injury to another due to the death of a child or a spouse, and in this sense, should not be considered important in cases involving such relationships. Physical proximity as a requirement to establishing liability appears to be elevating a matter which may be relevant to reasonable foreseeability on the facts of particular cases to a matter of law, notwithstanding that it may not be relevant to the test of reasonable foreseeability in all cases. The same argument can be made in relation to considering the closeness of the relationship of the parties.
It is notable in this light that Lord Wilberforce was of the view that there should be no liability on the basis of what one was told, this perhaps suggesting that some temporal, perceptual, or physical limitations would form part of his notion of proximity, even in cases in which there was a close relationship. To the extent that this interpretation is correct, it renders his conception of proximity unprincipled. Perhaps the feature of Lord Wilberforce’s proximity which is most inconsistent with the approach advanced in Part II is that these elements were considered by Lord Wilberforce to act as limits on the extent of liability rather than as indicators of when psychiatric injury may be more appreciable. Consequently, it is not difficult to envisage a situation in which these elements may be applied in such a way which would deny an otherwise meritorious claim.
276
Deane J’s concept of proximity is more flexible than that advanced by Lord Wilberforce, and more in harmony with the corrective justice approach based on common understandings as a result. Deane J’s proximity involved: ‘both an evaluation of the closeness of the relationship and a judgment of the legal consequences of that evaluation.’254 His Honour feared that due to the predominance of the test of reasonable foreseeability in the law of negligence since Donoghue v Stevenson,255 in the absence of limiting devices, the test of foreseeability would become so wide that it would not be ‘attuned to social standards and reality’ and become ‘largely self-destructive’.256 In that sense, his Honour’s concept of proximity was, like Lord Wilberforce’s, concerned with limiting liability. However, Deane J’s proximity was concerned more with the relationship of risk between the parties, with his Honour stating that his proximity was consistent with the idea that the law of negligence was a ‘general public sentiment of moral wrongdoing for which the offender must pay.’257
Deane J stated that his version of proximity was ‘directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act of one person and the resulting injury sustained by the other.’258 It involved:
the notion of nearness or closeness and embraces physical proximity … circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and causal proximity in the sense of the closeness or directness of the relationship between the particular act … and the injury sustained.259
Whether one of these particular considerations of proximity would be relevant in a particular case, and if so, how significant it would be to the outcome of the case, would differ from case to case, involving ‘value judgments on matters of policy and degree’.260
254 Ibid 580. For a good explanation of the philosophical differences underpinning the two conceptions of proximity advanced by Lord Wilberforce in McLoughlin and Deane J in Jaensch, see Lee J’s judgment in the Supreme Court of Brisbane in Reeve v Brisbane City Council (1995) 2 Qd R 661, 664-76 255 [1932] AC 562. 256 [1932] AC 562, 580. 257 Jaensch v Coffey (1984) 155 CLR 549, 607. 258 Ibid 584. 259 Ibid. 260 Ibid 585.
277
Whilst the flexibility of Deane J’s version of proximity might be considered to be one of its strengths, it is its vagueness which is one of its biggest weaknesses. Deane J’s proximity is ambiguous, meaning potentially many things in many different situations.261 It also has no particular bearing on scientific questions of causation of psychiatric disorders and therefore has an unclear relationship with the extent to which the risk of psychiatric injury was appreciable at either a scientific or community level of understanding.262 Accordingly, this doctrine has the potential to take into consideration matters both which are, and which are not, principled. Not giving clear indication of when any of the three notions of proximity might justify extending or limiting liability, nor of what matters of value or public policy are relevant in a particular case, Deane J’s concept of proximity is not clear enough to be considered principled.263
261 Indeed, the High Court in Sullivan v Moody (2001) 207 CLR 562 abandoned the notion of proximity as the underlying basis of the duty of care in negligence on the grounds that it provided little in the way of a process of reasoning, and as such, was of no practical guidance in cases which were not analogous to previous cases in which a duty had been found: at 578- 9[48]. 262 Eg, see Des Butler, ‘Proximity as a Determinant of Duty: The Nervous Shock Litmus Test’ (1995) 21(2) Monash University Law Review 159. In this article, Butler commented that although Deane J’s concept of ‘proximity’ drew consideration of matters of policy in the duty of care stage out into the open rather than leaving this concealed, ‘proximity’ as a concept was not sufficiently fixed in meaning as to provide clear guidance in subsequent cases, therefore resulting in significant discretion having to be exercised: at 186-7. Also see Des Butler, ‘Managing Liability for Bystander Psychiatric Injury in a Post-Hill v Van Erp Environment’ (1997) 13 Queensland University of Technology Law Journal 152 in which Butler traces the subsequent dissatisfaction with causal proximity as a concept expressed by numerous Australian Courts after the Jaensch decision: at 171. 263 For further criticism of Deane J’s proximity in this vein, see M Tilbury, ‘Purely Economic Loss in the Supreme Court of Canada’ (1994) 2 Tort Law Journal 1, 6; S Yeo, ‘Rethinking Proximity: A Paper Tiger?’ (1997) 5 Torts Law Review 174, 178; R W Kostal, ‘Currents in the Counter- Reformation: Illegality and Duty of are in Canada and Australia’ (1995) 3 Torts Law Review 100, 116; J Tesvic, ‘Perre v Apand – Coherent Negligent Law for the New Millenium?’ (2000) 22 Sydney Law Review 297, 311. The phenomenon of theoretical disagreement can also clearly be seen in Jaensch. Not only was there disagreement amongst the High Court judges as to whether reasonable foreseeability alone was enough to establish a duty or whether something else was required, and disagreement as to what that something else was, there was also disagreement as to the basic function of the law of negligence. In contrast with Deane J’s view of negligence as being based on moral wrongdoing, Murphy J saw the law as being concerned with the distribution of the costs of injury throughout society. In particular, Murphy J thought it relevant to consider the effect of an extension or restriction of a rule of law on the distribution of social costs, and to contemplate whether such a change would be rational in the economic sense. Murphy J considered the effect of the law of negligence on social welfare schemes, stating: ‘Early negligence law evolved when there was practically no social welfare, but in Australia it should now be developed consistently with the existence of a fairly comprehensive national medical and hospital scheme and social security benefits.’ His Honour stated that medical and hospital costs should not be recoverable under common law or under statute, to the degree that such costs are recoverable under federal social welfare legislation. Such a situation would not be rational, ‘In an efficient system, operating against the background of a national health scheme.’ However, in the absence of legislation preventing recovery, Murphy J was of
278
As to the correct approach when determining the duty of care, none of the judges held that the question of duty was to be determined only by considering whether the risk of psychiatric injury by shock was reasonably foreseeable. Neither Murphy J nor Dawson J commented explicitly on this point. Murphy J found simply that there were no reasons of policy for denying liability in this case,264 whilst Dawson J commented that it was not necessary to decide in this case whether reasonable foreseeability was enough.265 On the other hand, Brennan J regarded the existence of a duty to include not only the test of reasonable foreseeability, but also the tests of sudden shock and normal fortitude.266 As the appropriate approach to duty from the perspective of the common understandings test advanced in Part II is to refer only to the Donoghue v Stevenson267 test of reasonable foreseeability in the sense outlined in chapters 2 and 4, these findings were not principled.
Brennan J’s sudden shock doctrine – which changed the focus from the type of the damage suffered by the claimant to the manner in which it was suffered268 – was also not principled. His Honour did not advance the sudden shock doctrine as a matter reflective of medical realities of causation of psychiatric disorders, nor as a matter having a bearing on the appreciability of the risk of such disorders to the ordinary member of the community.269 Rather, Brennan J saw the requirement of ‘shock’ as being an important limiting device on the simple test of foreseeability in relation to the scope of liability for nervous shock. His Honour intended this
the view that there were no ‘acceptable reasons of public policy for limiting recovery’ in this case: Jaensch v Coffey (1984) 155 CLR 549. 264 Jaensch v Coffey (1984) 155 CLR 549, 553, 558. 265 Ibid 612. 266 Ibid 565, 567, 568. 267 [1932] AC 562. 268 See Handford, Mullany & Handford’s Tort Liability for Psychiatric Damage (Lawbook Co, 2nd ed, 2006) 285. Also see Des Butler, ‘A “Kind of Damage”: Removing the “Shock” from “Nervous Shock”’ (1997) 5 Torts Law Journal 225. Butler regards the requirement for ‘shock’ as based on a dubious understanding of scientific causation of psychiatric disorders. Butler also argues that in considering ‘sudden shock’, the courts had often become confused between means and ends. This is a view shared by Peter Handford: see, eg, Peter Handford, ‘Psychiatric Injury: The New Era’ (2003) 11 Tort Law Review 13, 20. 269 This point has been judicially recognised: see, eg, Campbelltown City Council v Mackay (1989) 15 NSWLR 501, 503-4 (Kirby P); Frost v Chief Constable of South Yorkshire Police [1998] QB 254, 271 (Henry LJ); Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 380[190] (Gummow and Kirby JJ). For further discussion of this point, see generally Des Butler, ‘A “Kind of Damage”: Removing the “Shock” From “Nervous Shock”’ (1997) 5 Torts Law Journal 255. Also see Peter Handford, ‘When the Telephone Rings: Restating Negligence Liability for Psychiatric Illness’ (2001) 23 Sydney Law Review 597, 615- 7; Peter Handford, ‘Psychiatric Injury: The New Era’ (2003) 11 Tort Law Review 13, 19-20.
279 requirement to prevent claims being made by spouses or parents who suffered psychiatric injury as a result of caring for a negligently injured spouse or child.270 The concept of ‘shock’ was explained by Brennan J as being a multifaceted concept, involving psychiatric illness, as well as shock which produces the psychiatric illness, with foreseeability of both of these elements of shock being necessary in order to establish liability.271 In further clarifying this concept, Brennan J stated:
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.272
The sudden shock consideration – described by Butler as an ‘antiquated throwback to long abandoned medical understandings concerning the development of psychiatric illness’273 – is unrelated to whether the risk of psychiatric injury was appreciable as a matter of community understandings and expectations. Kirby P expressed a similar view a few years after Jaensch in Campbelltown City Council v Mackay,274 stating: ‘It is highly artificial to imprison the legal cause of action for psychiatric injury in an outmoded scientific view about the nature of its origins.’275 The only solution as far as Kirby P was concerned was for ‘The causes of action at common law ….[to] be released from subservience to nineteenth century science.’276 Kirby P stated:
the price paid for the failure of the law to develop is the persistence of a legal entitlement to recovery which nowadays bears little relationship to contemporary psychiatric understanding. Such artificialities bring the law into disrepute. They force claimants to try to squeeze their claims
270 Jaensch v Coffey (1984) 155 CLR 549, 565. 271 Ibid 566-7. 272 Ibid 567. 273 See Des Butler, ‘Voyages in Uncertain Seas With Dated Maps’ (2001) 9 Torts Law Journal 1, 11. Also see Des Butler, ‘Nervous Shock in Australia and England: A Growing Divide?’ (2001) 22 The Queensland Lawyer 94, 96. 274 (1989) 15 NSWLR 501. 275 Ibid 503. 276 Ibid.
280
into outmoded formulae. They subject expert witnesses to the pressure to distort opinions on what they feel to be legitimate claims, out of deference to outmoded formulations of the legal basis of entitlement to recovery.277
Being irrelevant to whether the defendant was morally responsible for causing the claimant’s psychiatric harm, the sudden shock rule is unprincipled either as a requirement independent from the test of reasonable foreseeability, or as a consideration relevant to an overriding test of reasonable foreseeability. The sudden shock consideration is arbitrary and risks being under and over-inclusive in both interpretations. As an independent requirement it is under-inclusive as it excludes from liability those who cannot meet this additional and arbitrary limitation on liability notwithstanding that the defendant may be morally responsible for causing the claimant’s psychiatric injury. It also risks being over-inclusive in situations where this rule may be satisfied, having the potential to influence a finding of liability notwithstanding the defendant possibly not being morally culpable for causing the claimant’s harm. As a factor relevant to an overriding test of reasonable foreseeability, it has the potential to affect the assessment of reasonable foreseeability, whilst not having any relation to whether the claimant was morally responsible for causing the claimant’s harm.
Consider Chester, discussed in the previous chapter. In this case the claimant suffered psychiatric injury in circumstances where, it has been argued, the risk of psychiatric injury was likely appreciable at a community understandings level.278 However, Mrs Chester’s psychiatric harm appeared to result not from a sudden shock to the senses, but from a gradual dawning realisation that her missing child was dead, this awful fear eventually being confirmed by the discovery of his body. It has been argued above that the defendants were morally responsible for causing the claimant’s psychiatric injury, with the risk of the child’s drowning being foreseeable and the risk of psychiatric injury to the child’s mother as a result of this being appreciable at a community understandings level.279 However, the sudden shock consideration, where operating as a requirement independent of the test of reasonable foreseeability, would likely result in the denial of such a claim despite psychiatric injury being reasonably foreseeable. Where relevant to the test of reasonable foreseeability the sudden shock
277 Ibid 503-4. 278 See the argument above at section 6.2. 279 Ibid.
281 consideration has the potential to influence this question despite not being relevant to it. In both forms the consideration has the potential to result in the denial of a meritorious claim.
The sudden shock consideration also has the potential to influence a finding of liability in claims which are not meritorious, being over-inclusive in situations where the claimant may be able to satisfy the requirement of shock notwithstanding that the defendant may not be morally responsible for causing the claimant’s psychiatric injury. Consider the hypothetical case of a person who suffers psychiatric injury as a result of an assault on his or her nervous system by the direct sudden appreciation of a phenomenon which is comparatively benign from a scientific perspective. Examples of such benign phenomena might perhaps include witnessing one’s motor vehicle being vandalised or witnessing one’s child fall down and scrape their knee. In such hypothetical scenarios the risk of psychiatric injury would not likely be appreciable at either a scientific or community understandings level, and as such, it would likely be concluded that the defendant was not morally responsible for causing the claimant’s psychiatric harm. Notwithstanding this, it is arguable that the claimant being perhaps able to satisfy a requirement of sudden shock has the potential to influence a finding of liability in such circumstances. As such, this rule also has the potential, however slight, to influence a finding of liability in undeserving cases. Accordingly it is contended that in either form the sudden shock consideration is not principled.
Finally, the doctrinal finding by Brennan J in obiter that liability was limited to those who could show that they were a person of normal fortitude was also not consistent with the corrective justice approach advanced in Part II. It has been argued above280 in relation to Lord Wright’s and Lord Porter’s decisions in Bourhill that the normal fortitude consideration is potentially consistent with corrective justice but only where considered as part of an overriding test of reasonable foreseeability. As a matter relevant to an overriding test of reasonable foreseeability the normal fortitude rule is explicable on the basis that seeks to ensure the transactional equality between the parties. However, this was not the form of the rule proposed by Brennan J, who saw this as a requirement which operated in addition to the test of reasonable foreseeability.
280 At section 4.4 and at section 7.3.3.
282
7.4 Conclusion
As was the case in relation to Dulieu281 and Hambrook,282 the decisions in Pusey and Jaensch can also now be understood in normative terms. In both cases, liability was expanded in a way which was consistent with an expanding right to physical and psychological integrity.283 As such, these decisions support the second primary hypothesis in this thesis.
The decision in Pusey recognised what was already known by experts and by the ordinary member of the community at the time – that one may suffer lasting mental trauma as a result of another’s injury or death even when not in a close and loving relationship with that person, where one is exposed to scenes of horror. Moreover, this was understood beyond simply military contexts, applying to civilian accidents as well.284 This resulted in a further significant expansion of the right to physical and psychological integrity,285 noteworthy because the circumstances in which trauma was suffered did not involve fear for one’s own safety or fear for the safety of a close family member. This is also important because the claimant did not perceive the actual moment of the accident in question. As such, the point at which the norm against injuring was set was again justifiably shifted in order to ensure that it continued to maintain the pre-existing normative equality between the parties demanded by corrective justice.286 Similarly, expert and common understandings had again expanded by the time of Jaensch to the extent that there existed a right to physical and psychological integrity in cases where one feared the death of a spouse, despite not witnessing the accident in question, instead learning of it at a later point in time.287 As such, the norm against injuring was again justifiably adjusted as a matter of corrective justice.288
The potential benefits of the corrective justice approach advanced in Part II can once again be considered in relation to the leading cases considered in this chapter. Despite the decisions in Pusey and Jaensch both being consistent with corrective justice, the approach advanced in this thesis would have better attuned to achieving a just outcome between the parties than the legal
281 Analysed at section 6.5. 282 Analysed at section 6.6. 283 This bears out the argument presented above at section 4.4. 284 See the argument at section 7.3.1 regarding prevailing understandings at the time of Jaensch. 285 Reflecting the theoretical argument presented in section 4.4. 286 See section 4.3. 287 See the argument above at sections 7.3.1 and 7.3.2. 288 This also reflects the theoretical argument presented above at section 4.3.
283 rules applied by the court in each case. As has been argued above,289 the approach advanced in this thesis does not require separate justifications for imposing liability on the one hand and for limiting liability on the other to ensure that it does not become unmanageable. This is significant because the doctrinal findings in Pusey and Jaensch suggested either an ambit of liability which was potentially too wide – for example, the finding in Pusey that in employer/employee situations the only relevant test is whether psychiatric injury was reasonably foreseeable290 – or that arbitrary and unprincipled limitations ought to be retained – for example, the potential retention of a direct perception requirement in Jaensch, expanded to include the immediate aftermath of the accident.291
In finding liability in circumstances where the claimant and the person injured or killed were not in a close and loving relationship, a finding of liability in Pusey might have suggested that liability would become indeterminate unless an arbitrary limit on liability was adopted. The same might be said for the finding of liability in circumstance where the claimant did not perceive the precise moment of an accident involving another. However, the corrective justice approach based on common understandings would have suggested a limitation on liability in such cases as a matter of principle which would ensure that there would not be indeterminate liability as a result. Based on community understandings and expectations, this approach suggested that liability in cases not involving injury or death of a loved one be limited to those who had been directly exposed to trauma such as the sights and sounds of an horrific accident.292
Similarly, a finding of liability in Jaensch – where the claimant did not perceive or attend the accident scene – might have suggested that liability would be extended further than was manageable. However, the approach advanced in Part II again suggested a principled limitation on liability in such cases which would prevent liability from becoming indeterminate. This approach suggested that whilst no particular limit be placed on the amount of time between an accident involving a spouse and the learning about this accident and its consequences by the claimant, a principled limit was justifiably placed on liability which related to the closeness of the relationship between the claimant and the person injured or killed in the accident in question.293
289 At sections 5.6 and 6.4. 290 See above at section 7.2. 291 See above at section 7.3. 292 See section 7.2.1. 293 See the argument above at section 7.3.2.
284
It has been shown in this chapter that the ambit of liability was expanded dramatically in the post-World War II cases of Pusey and Jaensch. Prior to the war, liability effectively required direct perception of the moment of death of another, even of a child, no matter how distressing the death itself was to the claimant. Little over forty years later, liability had been expanded to include not only those who had not seen or heard the moment that their loved one was killed, but also those who had not even been to the scene of the accident. Furthermore, liability had also been extended to include those whose psychiatric injury was caused not by the death of a child or spouse, but to a co-worker, at least in circumstances involving exposure to scenes of horror. It has been argued that these developments were understandable by reference to the approach advanced in this thesis, this finding supporting the second primary hypothesis of this thesis.
In the following chapter, Tame v New South Wales; Annetts v Australian Stations Pty Ltd294 and Gifford v Strang Patrick Stevedoring Pty Ltd295 are analysed. It is shown that the outcomes as well as the approaches taken by the High Court in these cases were almost entirely understandable from the perspective of the corrective justice approach advanced in this thesis.
294 (2002) 211 CLR 317. 295 (2003) 214 CLR 269.
285
Chapter 8: Analysis of Leading Common Law Cases: Tame; Annetts and Gifford – Emergence of a Corrective Justice Approach
8.1 Introduction
This chapter analyses the three current leading common law cases in Australia, Tame v New South Wales; Annetts v Australian Stations Pty Ltd1 and Gifford v Strang Patrick Stevedoring Pty Ltd.2 Tame required the court to decide on the appropriate approach to take in cases where the claimant had a pre-existing vulnerability to psychiatric injury and where injury was caused by exposure to a relatively benign stressor event. Tame demonstrated the effectiveness of the normal fortitude rule as a consideration relevant to an overriding test of reasonable foreseeability in ensuring that the parties’ interests are balanced and equally important in the eyes of the law.
Annetts and Gifford demonstrated that the right to physical and psychological integrity had expanded to such an extent by the time of these cases that a finding of liability was just in circumstances involving no direct perception of the deaths of their respective loved ones. The influence of two particular factors would result in these claims both succeeding. The first was that these claims both involved the deaths of someone with whom the claimant was in a relationship of the closest kind – the relationship of parent and child. The second was that common understandings of the causes of mental disorders had grown to such an extent by the time of these cases that psychiatric injury to both of the claimants would likely have been readily apparent to the general public. As such, although the ambit of liability would be extended in these cases further than it had ever been previously, this was no further than was justified according to common understandings. Indeed, a finding against either of the claimants in Annetts and Gifford would have been an injustice. This chapter begins with analysis of Tame followed by analysis of Annetts and then of Gifford.
1 (2002) 211 CLR 317. 2 (2003) 214 CLR 269.
286
8.2 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002)3
The most important aspect of Tame from the perspective of this thesis is that this case demonstrates well the effectiveness of the normal fortitude consideration in identifying the point at which the norm against injuring is set, a particularly critical aspect of cases in which the claimant has a pre-existing vulnerability to psychiatric injury. This plays a vital role in determining whether the defendant is morally responsible for causing the claimant’s harm and, in turn, addresses fears of an unfair burden being placed on defendants and fears of indeterminate liability.
In Tame, the claimant sued the State of New South Wales for damages, alleging that she suffered psychiatric injury as a result of the negligence of a police officer, Acting Sergeant Beardsley, in wrongly recording her blood alcohol level in a motor vehicle accident report. The accident involved a collision between the car driven by Mrs Tame and another car driven by Mr Lavender, the accident being the fault of Mr Lavender. Mrs Tame and Mr Lavender were both subjected to blood alcohol tests after the accident, with Mr Lavender registering a blood alcohol level of 0.14. Mrs Tame had no alcohol in her blood, and in fact, was a non-drinker. Acting Sergeant Beardsley subsequently completed a motor vehicle accident report and wrongly recorded that both Mr Lavender and Mrs Tame had registered a blood alcohol level of 0.14. He noticed this error and corrected it around a month later. Mrs Tame was notified about the error on the accident report and became obsessed with it. She was subsequently diagnosed a few years later as suffering from Bipolar Disorder II, although she had suffered from a mental disorder prior to the accident as well.
Tame is doctrinally significant because the High Court held that the overriding test of duty was the test of reasonable foreseeability. As such it was not a separate requirement of liability, in the absence of specific knowledge of peculiar susceptibility, that the claimant be required to establish they are a person of normal fortitude.4 On the facts, the High Court held that the claimant was not owed a duty of care by the defendant as it was not reasonably foreseeable that she would suffer psychiatric injury in the circumstances of the case, particularly given that the
3 (2002) 211 CLR 317 (‘Tame’). 4 Ibid 333[16] (Gleeson CJ), 343[61] (Gaudron J), 385[201] (Gummow and Kirby JJ). McHugh J, Hayne J and Callinan J disagreed on this issue, each holding that normal fortitude was a separate requirement of liability: 360[118]-[119] (McHugh J), 410-11[273]-[275] (Hayne J), 430[334] (Callinan J).
287 causative event itself was relatively mild.5 Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ also held that it would be inconsistent with the duties imposed on police officers to investigate the possible commission of crimes to simultaneously impose on police officers a duty of care to not cause psychiatric injury to those who they were investigating.6 Tame demonstrates well that liability according to an overriding test of reasonable foreseeability is not unlimited or indeterminate. It also shows that the normal fortitude rule in this form operates to ensure the transactional equality between the parties is maintained in cases where the claimant’s reaction is extreme and idiosyncratic, being unappreciable at a community understandings level.
As discussed above,7 it was Phillimore J in Dulieu v White & Sons8 who suggested the duty of care on the roads was perhaps limited to only those steady enough – ‘the ideal vir constans’ – to withstand the terrors they may face when going there.9 An ordinary level of susceptibility was subsequently considered the appropriate standard against which to consider what a reasonable person in the defendant’s position ought to have anticipated by Latham CJ in Bunyon v Jordan.10 Lord Wright in Bourhill v Young11 also adopted this standard when considering ‘what the hypothetical reasonable man…would say it was proper to foresee.’12 If the relevant standard was that of a claimant regardless of whether they were unusually susceptible, this would ‘in effect make the defendant an insurer.’13 Lord Porter came to the same conclusion in Bourhill, stating that one was ‘not to be considered negligent towards one who does not possess the customary phlegm.’14 In Jaensch v Coffey,15 Brennan J also regarded the normal fortitude consideration as being relevant to the duty of care, although his Honour regarded this as being a requirement which was independent to the question of reasonable foreseeability.16
5 Ibid 335[29] (Gleeson CJ), 341[55] (Gaudron J), 396[232] (Gummow and Kirby JJ), 360[119]- [120] (McHugh J), 418[298]-[300] (Hayne J), 429-30[331]-[335] (Callinan J). 6 Ibid 335[25]-[26] (Gleeson CJ), 342[57] (Gaudron J), 361-2[124]-[126] (McHugh J) 396[231] (Gummow and Kirby JJ), 418[298]-[300] (Hayne J). 7 At 6.3 in relation to Bourhill, and at 7.3 in relation to Jaensch. 8 (1900) All ER Rep 353, 361-2. 9 Dulieu v White & Sons (1900) All ER Rep 353, 361-2. 10 (1937) 57 CLR 1, 14 (Latham CJ), 18 (McTiernan J). 11 [1942] 2 All ER 396, 405-6. 12 Ibid 405-6. 13 Ibid 405-6. 14 Ibid 409. 15 (1984) 155 CLR 549. 16 Ibid 565, 567, 568.
288
Based on the authorities, Mrs Tame’s claim appeared to have a limited chance of success, primarily because of a combination of two factors. The first was the relatively benign nature of the stressor event – the mis-recording of the claimant’s blood alcohol level on a police report. The second was the finding of fact by the court that the claimant was peculiarly susceptible to psychiatric injury. The authorities suggested that the question of whether the claimant was a person of normal fortitude was a relevant consideration in determining the duty of care, even if it was not entirely clear whether this would be an independent requirement or simply a matter going to an overriding question of reasonable foreseeability. Notwithstanding this uncertainty, as the normal fortitude consideration would play some role in the determination of the duty of care, it appeared that the claimant would have a significant hurdle to overcome. The finding against the claimant on the grounds that psychiatric injury to her was not reasonably foreseeable given her unusual susceptibility can therefore be understood on the basis of the authorities. It was also a principled and just decision as the defendant did not breach the norm against injuring as was therefore not morally responsible for causing her injury.
8.2.1 Prevailing understandings of the causes of psychiatric disorders
The receipt of news of a clerical error leading to an inaccurate perspective of someone’s drinking behaviour appears to be a relatively mild event, certainly when compared to the trauma of hearing of news of the death of a child or a spouse. However, there is a reasonable basis to argue that according to expert understandings at the time of the accident, events such as the event in question – the administrative error by Acting Sergeant Beasley in incorrectly recording the claimant as having alcohol in her blood at the time of the accident – could be causally-related to the onset of mental disorder, particularly when in combination with a cluster of stressful life events,17 or when an individual has a particular psychiatric vulnerability.18
17 See, eg, Thomas H Holmes and Richard H Rahe, ‘The Social Adjustment Rating Scale’ (1967) 11 Journal of Psychosomatic Research 213, 213. 18 See, eg, Philip Boyce, Gordon Parker, Bryanne Barnett, Margaret Cooney and Fiona Smith , ‘Personality as a Vulnerability Factor to Depression’ (1991) 159 British Journal of Psychiatry 106, 112; Alexander C McFarlane, ‘Vulnerability to Posttraumatic Stress Disorder’, in Marion E Wolf and Aron D Mosnaim, Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment (American Psychiatric Press, 1990) 4, 14-15.
289
In Holmes and Rahe’s well-known ‘Social Readjustment Ratings Scale’, it was shown that particular life events played an important causal role in the onset of mental disorders. The ten most stressful life events according to Holmes and Rahe’s research were ‘death of a spouse’, ‘divorce’, ‘marital separation’, ‘a jail term’, ‘death of a close family member’, ‘personal injury or illness’, ‘marriage’, ‘being fired at work’, ‘marital reconciliation’, and ‘retirement’.19 When considered in comparison to these stressful life events, the stress caused by the administrative error causing Mrs Tame’s mental disorder appears to be comparatively mild.20 However, notwithstanding this, there are some events on Holmes and Rahe’s ratings scale which also appear relatively mild, such as a change in social activities, or a change in sleeping habits, and these have been shown to cause stress sufficient in certain circumstances to result in mental disorder.21 Pursuant to the biopsychosocial approach within psychiatry, many factors play a causal role in the onset of mental disorders, including biological factors such as one’s genetic makeup, psychological factors such as one’s mental coping mechanisms, and social elements such as the extent of one’s social networks.22 As such, it is unsurprising that when the matter first came to trial, one of the expert psychiatrists – a Dr Mitchell – gave evidence that the administrative error played a causal role in the onset of Mrs Tame’s illness.23
In considering community understandings and expectations at the time of the accident in Tame, it is notable that Garling DJC in the District Court of New South Wales was of the view that the risk of psychiatric injury to the claimant was a risk which was appreciable not only to experts, but also to those in the general community.24 It was on this basis that his Honour found that psychiatric injury to the claimant was reasonably foreseeable.25 In assessing what was foreseeable, Garling DJC stated ‘The knowledge which the community has of matters like this
19 See Thomas H Holmes and Richard H Rahe, ‘The Social Adjustment Rating Scale’ (1967) 11 Journal of Psychosomatic Research 213. 20 See generally Thomas H Holmes and Richard H Rahe, ‘The Social Adjustment Rating Scale’ (1967) 11 Journal of Psychosomatic Research 213, 216. 21 Ibid. 22 Sidney Bloch and Bruce Singh, Foundations of Clinical Psychiatry (Melbourne University Press, 3rd ed, 2007) 47-68; Bourne and Russo, Psychology, Behaviour in Context (WW Norton, 1998); Jennifer Barraclough and David Gill, Hughes’ Outline of Modern Psychiatry (John Wiley & Sons, 4th ed, 1996) 5-18; Richard W Hudgens, ‘Personal Catastrophe and Depression: A Consideration of the Subject With Respect to Medically Ill Adolescents, and a Requiem for Retrospective Life-Event Studies’ in Barbara Dohrenwend and Bruce Dohrenwend, Stressful Life Events: Their Nature and Effects (John Wiley & Sons, 1974) 119. 23 See Tame v Morgan (1998) 27 MVR 387, 393-4. 24 Ibid 392. 25 Ibid 391-2.
290 occurring was in my view common knowledge and certainly common knowledge to those who had control of these sorts of reports.’26 His Honour further stated:
Psychological injury arises at times not from dissimilar sorts of problems to this. While this is an unusual case, it is not so unusual as one cannot look back upon various matters which are raised in this court, where evidence is given in this court, which are not dissimilar to this sort of thing happening. That is, a person who finds something out and has a psychiatric reaction to it, whereas perhaps other people would not expect that reaction to take place. It is, however, in my view still firmly in front of the community in this day and age and was back in the early 1990s.27
There are a number of aspects of the trial judge’s reasoning which are problematic and which bring into question this assessment of community understandings. First, although the claimant’s psychiatric injury could be attributed to the defendants’ actions according to expert understandings, this was not uncontroversial. Indeed, evidence from other experts in the trial disputed that the event in question was causally-related to the claimant’s psychiatric injury. At least two other psychiatrists who provided expert reports on the claimant’s condition, Dr Lewin and Dr Westmore, were of the view that the real cause of Mrs Tame’s disorder was a pre- existing mental condition.28
Second, the expert evidence provided by Dr Mitchell indicating there was a causal connection between the claimant’s injury and the administrative error in question was based on an ex post facto analysis of the claimant’s injury, made with reasonably full knowledge of the claimant’s background and circumstances, interpreted in light of the expert knowledge and training possessed by Dr Mitchell.29 The law of negligence is concerned with fault, not simply whether a causal connection can be established.30 As such, the test of reasonable foreseeability is concerned not with whether a person’s injury can be understood after the fact with full knowledge of the individual’s characteristics and the relevant circumstances, but with whether the risk of injury was appreciable before the fact, ordinarily to an ordinary member of the
26 Ibid 392. 27 Ibid. 28 See Tame v Morgan (1998) 27 MVR 387, 394, 395. 29 Dr Mitchell, as the claimant’s treating psychiatrist, saw the claimant for over 2,000 minutes over the course of 40 separate visits: see Tame v Morgan (1998) 27 MVR 387, 393. 30 See, eg, Morgan v Tame (2000) 31 MVR 155, 178[143]-[144] (Mason P).
291 community who possesses no particular information regarding the personal characteristics or background of the claimant beyond what the defendant knew.31
With this in mind, it is highly relevant that the type of injury suffered by the claimant was atypical even according to expert understandings,32 and the risk posed by the administrative error could be understood only as a final stressor in the context of a series of accumulated stresses,33 or as a stressor which had particular meaning to an individual with a particular vulnerability to psychiatric injury.34 In this context, it seems reasonable to argue that in the absence of this additional contextual information, not even an expert could have predicted the risk of psychiatric injury to the claimant in the circumstances before the fact. If this is accepted, it seems difficult to conclude that a member of the general community who did not possess scientific knowledge and training and the relevant contextual information necessary to make an ex post facto expert assessment, would have been able to appreciate the risk to the claimant before the event had occurred.
Third, despite finding psychiatric injury to be foreseeable to an ordinary member of the community, there was no real evidence provided by the trial judge for this finding. Although asserting that his assessment of reasonableness reflected common understandings,35 Garling DJC expressly referred only to scientific understandings and his experience as a judge in coming to this conclusion. The problematic aspect of his Honour’s reasoning in this regard is that it failed to acknowledge that neither expert scientific understandings nor the experiences of judges are common across the general community.
Furthermore, unlike rail, road, or industrial accidents, in relation to which psychiatric injury can and often has been caused by direct exposure to trauma or by loss of a child or a spouse,36
31 Ibid 175[128] (Mason P), affirming the views of Windeyer J in Mount Isa Mines v Pusey (1970) 125 CLR 383, 397-8. 32 This was recognised by Garling DJC at trial: see Tame v Morgan (1998) 27 MVR 387, 393. 33 See, eg, Thomas H Holmes and Richard H Rahe, ‘The Social Adjustment Rating Scale’ (1967) 11 Journal of Psychosomatic Research 213, 213. 34 See, eg, Philip Boyce, Gordon Parker, Bryanne Barnett, Margaret Cooney and Fiona Smith , ‘Personality as a Vulnerability Factor to Depression’ (1991) 159 British Journal of Psychiatry 106, 112; Alexander C McFarlane, ‘Vulnerability to Posttraumatic Stress Disorder’, in Marion E Wolf and Aron D Mosnaim, Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment (American Psychiatric Press, 1990) 4, 14-15. 35 Tame v Morgan (1998) 27 MVR 387, 392. 36 See, eg, Dulieu v White & Sons (1900) All ER Rep 353 (psychiatric injury caused by direct exposure to road accident) – considered above at section 5.4; Hambrook v Stokes Brothers
292 and where there is a not insubstantial body of evidence indicating that the general community is aware of the risks of this occurring,37 there is no real evidence that the general community understands that administrative errors of this kind can be linked to onset of mental disorders. Unlike the injuries which have been considered previously in this thesis, there seems to be an absence of contemporary cultural evidence about the risk of psychiatric injury as a result of an administrative error. There is an absence of evidence showing that governments have been concerned about the risk of injuries due to administrative errors,38 no apparent public pressure to address such a risk,39 and no prominent legislation enacted to counter this risk.40 There are further no accounts in literature, poetry, music, or cinema of psychiatric injury caused in such circumstances,41 or accounts of this type of injury commonly seen in newspapers.42
Consequently, it is understandable that Garling DJC’s assessment of common understandings was not accepted in the New South Wales Court of Appeal in Morgan v Tame.43 Mason P stated:
(1924) All ER Rep 110 (psychiatric injury caused by fear of death of child in a road accident) – considered above at section 5.5; Chester v Waverley Corporation (1939) 62 CLR 1 (psychiatric injury caused by death of child) – considered above at section 6.2; Mount Isa Mines v Pusey (1970) 125 CLR 383 (psychiatric injury caused by direct exposure to industrial accident) – considered above at section 7.2; Jaensch v Coffee (1984) 155 CLR 549 (psychiatric injury caused by fear of death of husband in a road accident) – considered above at section 7.3. 37 See the evidence presented above regarding common understandings in relation to Dulieu v White & Sons (1900) All ER Rep 353 at 5.4.1, Hambrook v Stokes Brothers Brothers (1924) All ER Rep 110 at section 5.5.1, Chester v Waverley Corporation (1939) 62 CLR 1 at section 6.2.1, Mount Isa Mines v Pusey (1970) 125 CLR 383 at section 7.2.1, and Jaensch v Coffee (1984) 155 CLR 549 at section 7.3.1. 38 Compare this to the concerns shown by governments to address the risk of death and injury as a result of railroad accidents (see section 5.3.1), automobile accidents (see section 5.5.1), and industrial accidents (see section 7.2.1). 39 As there was to address the risks of railroad accidents (see section 5.3.1), automobile accidents (see sections 5.5.1 and 7.3.1), and industrial accidents (see section 7.2.1). 40 Such as the Fatal Accidents Act enacted in part to address the significant numbers of deaths and injuries on the railroads (see section 5.3.1), the Traffic Acts enacted in Britain in similar legislation enacted all over the world with the aim of reducing automobile accidents (see section 6.3.1), and the workers’ compensation legislation enacted in many countries around the world to increase workplace safety and address the significant numbers of industrial accidents (see section 7.2.1). 41 Compare this to the numerous accounts in literature, poetry, music, and cinema of the significant emotional torment caused by the loss of a child (see sections 5.5.1 and 6.2.2) or the loss of a spouse (see section 7.3.1). 42 As there has been in relation to mental disorders resulting from railroad accidents (see section 5.3.1), automobile accidents (see sections 5.5.1 and 7.3.1), and industrial accidents (see section 7.2.1), or from the death of a child (see sections 5.5.1 and 7.2.1) or a spouse (see section 7.3.1). 43 Morgan v Tame (2000) 31 MVR 155, 160[32] (Spigelman CJ), 178[143] (Mason P).
293
Nothing in the evidence suggests any basis for the police officer perceiving that shock and a psychiatric illness induced by it (Jaensch at CLR 563) were a reasonably foreseeable consequence of the mistake. To my mind, this was so whether one assumes a normal standard of susceptibility or whether one merely takes into account the robustness of the population at large. Whatever the respondent suffered, it was not PTSD as promulgated in the DSM current at the time. Looking backwards from the trial, the medical evidence may have established causation according to the law’s relatively easy standard, but it did not show any corpus of knowledge even among the cognoscenti that this sort of trigger might be expected to cause psychiatric injury.44
Accordingly, whilst perhaps understandable in an ex post facto sense from a scientific perspective, the risk of psychiatric injury to the claimant was arguably not appreciable before the fact to an ordinary member of the general community possessing no special education or training, or particular knowledge of the claimant’s psychiatric vulnerabilities. This is important because it provides good reason to argue that Acting Sergeant Beardsley did not breach the norm against injuring others when he incorrectly completed the accident report form.45
8.2.2 Corrective justice analysis of Tame
Tame is significant in terms of this thesis because it demonstrates that in cases where the claimant has in fact suffered psychiatric injury, the law may nonetheless justly deny liability against the defendant where the defendant has not breached the norm against injuring and thereby wronged the claimant. If it is accepted that the risk of psychiatric injury to the claimant was not commonly appreciable at the time of the accident, then in the absence of specific knowledge of the claimant’s pre-existing vulnerability, a finding against the defendant would have been unjust. The decision in Tame demonstrates how effective the normal fortitude consideration is – as a consideration relevant to an overriding test of reasonable foreseeability – in maintaining the pre-existing normative equality between the parties in cases where the claimant is particularly vulnerable to psychiatric injury. The finding against Mrs Tame on the basis that psychiatric injury to her was not reasonably foreseeable is consistent with the argument that the risk of injury to her not being appreciable as a matter of community understandings and expectations, the claimant’s right to physical and psychological integrity
44 Ibid 178[143]. 45 See the argument above at section 4.4 for further discussion of the relationship between community understandings and the norm against injuring.
294 did not extend to protect her from the harm she suffered.46 As a result, no normative connection could be made between the defendant’s actions and the claimant and her injury.
Both the finding that the overriding test was the test of reasonable foreseeability and the finding that the normal fortitude test was relevant to this overriding test were consistent with the corrective justice approach advanced in Part II. According to this approach the claimant’s susceptibility may be relevant to whether the defendant is able to appreciate the risk of harm to the claimant. However, it matters little to the question of moral culpability whether the claimant is actually a person of normal fortitude, if such a determination could even be made in any particular case.47 Rather, the matter of importance is whether the defendant has breached the norm against injuring, and in the absence of specific knowledge of the claimant’s peculiar susceptibility, this can only be done by considering community understandings and expectations. It is to this end that the normal fortitude rule, as a consideration relevant to the overriding question of whether the risk of harm to the claimant was appreciable, is relevant. The rule in this form assists in determining the point at which the norm against injuring is set, this being the point at which the parties’ interests are treated as being of equal importance in the eyes of the law.
The rules that the overriding test was the test of reasonable foreseeability and the finding that the normal fortitude test was relevant to this overriding test are also both principled as they ensure that the transactional equality between the parties is maintained in all circumstances. Further elaborating on the argument above,48 the normal fortitude rule in this form ensures that the point at which the norm against injuring is set is not at the subjective level of the particular claimant, but rather, at an objective level which is consistent with community understandings and expectations. As a result, the rules in this form are morally justifiable. They ensure that in cases such as the present where the defendant cannot be considered to have been morally culpable for causing the claimant’s harm, liability will likely be denied. On the other hand, the rule in this form also allows a finding of liability when the defendant is morally culpable for causing the claimant’s harm notwithstanding the claimant perhaps in fact being a person with
46 This reflects the theoretical argument presented above at sections 4.3 and 4.4. 47 See Des Butler, ‘Susceptibilities to Nervous Shock: Dispensing with the Mythical ‘Normal Person’’ (1997) 1 Macarthur Law Review 107, 119-21. 48 See chapter 6 in relation to Bourhill.
295 unusual susceptibility to psychiatric harm. As such, this rule is well-attuned to achieving corrective justice between the parties.
There is also good reason to argue that their Honours’ reasoning in Tame was consistent with the corrective justice approach advanced in this thesis. Callinan J related the issue of normal fortitude to whether the risk of psychiatric harm to the claimant was appreciable not to an expert, but to a police officer completing a report. Finding against the claimant on the ground that psychiatric injury to her was not reasonably foreseeable in the circumstances, his Honour stated that this was the required outcome despite the risk of harm to the claimant perhaps being appreciable to an expert.49 His Honour stated:
It is one thing for a psychiatrist to know and understand that events of the kind which occurred here, the entry, and its communication, were capable of causing a psychiatric injury to either a vulnerable or a phlegmatic person. It is an entirely different thing to attribute that knowledge, indeed even a suspicion of it, to a police officer carrying out a duty of completing a standard form of report.50
Gleeson CJ too was of the view that the defendant ‘could not reasonably have been expected to foresee that his mistake carried a risk of harm to Mrs Tame of the kind that resulted.’51 As such, ‘it was not reasonable to require him to have her mental health in contemplation when he recorded the results of the blood tests.’52 Similarly, McHugh J found that a person in the defendant’s position ‘would not reasonably contemplate that an ordinary person of normal fortitude would suffer a psychiatric illness after learning of … [the incorrect] entry.’53 Even if
49 Ibid 429[331]. 50 Ibid. It is also notable that the High Court found against Mrs Tame on the additional basis that it would be inconsistent with the duties of police officers to place an additional duty on them to take reasonable steps to prevent psychiatric injury to the subjects of their investigations, as well as being inconsistent with the law of defamation. This ground was based on the High Court’s finding in Sullivan v Moody (2001) 207 CLR 562 that the law should seek to develop principles which preserve coherence within the law. Beever argues that coherence within the law is a fundamental aspect of a normatively justifiable law: see the discussion of the notion of coherence in chapter 2 of this thesis. As such, the concern to maintain the coherence of the law seen in Tame and Sullivan is perhaps also explicable from the perspective of corrective justice. However, in the absence of in-depth analysis, this can only be considered a preliminary argument which requires further development. 51 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 335- 6[29]. 52 Ibid. 53 Ibid 360[120].
296 the defendant could appreciate some risk in his actions in the circumstances, it was ‘so small that it could reasonably be disregarded’.54 For Gummow and Kirby JJ, the claimant’s reaction to the clerical error was ‘extreme and idiosyncratic’. As such, the risk of psychiatric injury to the claimant in the circumstances was so ‘far-fetched or fanciful that the law did not require a reasonable man to avoid it’.55
Their Honours’ reasoning was consistent with the approach advanced in Part II, demonstrating a desire to balance the competing interests of the parties in a way which maintained the pre- existing normative equality between them. In rejecting the notion that the same general principles of the law of negligence should apply in all types of case, Gleeson CJ stated the law was concerned: ‘not only with the compensation of injured claimants, 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.’56 His Honour stated that an ‘intolerable burden’ would be placed on business and private activity if there was a general duty to not cause reasonably foreseeable financial harm.57 Mrs Tame’s case was advanced as a good example of the ‘unacceptable burden on ordinary behaviour’ that would result if a general duty were recognised requiring people to take care not to cause emotional disturbance to other people.58 For Gleeson CJ, the normal fortitude concept:
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.59
Gummow and Kirby JJ’s judgment reflected similar concerns. Their Honours characterised the law of negligence with respect to psychiatric injury as reflecting the attempt to accommodate competing interests struggling for legal protection, referring in this context to the competing interests of claimants in their own bodily and psychological security, and the interests of
54 Ibid. Hayne J was in agreement with this aspect of McHugh J’s judgment: at 418[300]. 55 Ibid 397[233]. Gaudron J was in agreement with this aspect of Gummow and Kirby JJ’s judgment: at 344[63]. Callinan J was similarly of the view that psychiatric injury to the claimant was not predictable in the circumstances: at 429[331]. 56 Ibid 329[5]. 57 Ibid. 58 Ibid 329[7]. 59 Ibid 333[16].
297 defendants in their freedom of action.60 In portraying the law in this light, Gummow and Kirby JJ referred to Professor Stone’s The Province and Function of Law in which Professor Stone observed:
The apparent anomalies and illogicalities of this subject are overt signs of a substantial clash of interests. Full support of the claim to nervous integrity might not only subject defendants being mulcted in damages on false claims, thus infringing their interests of substance. It would also tend to inhibit freedom of action generally, thus prejudicing claims to free motion and locomotion.61
Gummow and Kirby JJ considered the capacity of tort law to accommodate these competing interests, noting that at each stage of the development of the modern tort of negligence, limitations were imposed on a growing field of liability in order to ‘minimise false claims and avoid indeterminate liability’.62 Their Honours stated that the competing interests in nervous shock cases needed to be re-accommodated, noting that these interests must be given direct attention.63 Their Honours regarded the promotion of reasonable conduct as one of the functions of the law of negligence,64 and that the concept of reasonableness was central to balancing the interests of the parties. They stated:
it is the assessment … respecting reasonableness of conduct that reconciles the plaintiff’s interest in protection from harm with the defendant's interest in freedom of action. So it is that the plaintiff’s integrity of person is denied protection if the defendant has acted reasonably.65
Consistent with the approach advanced in Part II, Gummow and Kirby JJ were of the view that the extent of the claimant’s interests was intimately intertwined with whether it was reasonable to expect the defendant to appreciate the risk of injury to the claimant. Their Honours stated:
protection of … integrity [of person] expands commensurately with medical understanding of the threats to it. Protection of mental integrity from the unreasonable infliction of serious harm,
60 Ibid 374[170]. 61 Ibid; referring to Stone, The Province and Function of Law (1946), 512. 62 Ibid 376[179]. 63 Ibid 378[183]. Note the consistency between this approach and the approach suggested by Beever in chapter 2 and extended in chapter 4. 64 Ibid 379. 65 Ibid.
298
unlike protection from transient distress, answers the ‘general public sentiment’ underlying the tort of negligence that, in the particular case, there has been a wrongdoing for which, in justice, the offender must pay.66
It was in this light that Gummow and Kirby JJ regarded the normal fortitude consideration as being of use in considering what the hypothetical reasonable person was able to perceive in terms of the level risk to the claimant when assessing the question of reasonable foreseeability.67 As such, the judgments of Gleeson CJ, Gaudron, Gummow and Kirby JJ were consistent with the corrective justice approach based on common understandings. Their judgments fitted with this approach, were morally justifiable, and transparent. In bringing conceptual unity to the normal fortitude rule, these judgments also presented the law in a coherent light.
Although the findings by McHugh, Hayne and Callinan JJ that normal fortitude was a requirement of liability in addition to reasonable foreseeability were not consistent with the approach advanced in this thesis, a concern for maintaining the transactional equality between the parties may nonetheless also be seen to permeate the reasoning of these judges. Referring to the burden being placed on defendants by the law of negligence, McHugh J stated that the concept of reasonableness operated to ensure that the defendant could act ‘on the basis that there will be a normal reaction to his or her conduct.’68 His Honour referred to the burden on freedom of movement that would result if a higher standard than normal fortitude were adopted:
To insist that the duty of reasonable care in pure psychiatric illness cases be anchored by reference to the most vulnerable person in the community – by reference to the most fragile psyche in the community – would place an undue burden on social action and communication. To require each actor in Australian society to examine whether his or her actions or statements might damage the most psychiatrically vulnerable person within the zone of action or communication would seriously interfere with the individual’s freedom of action and
66 Ibid 379[185]. 67 Ibid 385-6[202]. As such, their Honours regarded the normal fortitude consideration as an independent element of liability to be unsound: at 380[188]. 68 Ibid 357[109]. This would not be the case where the defendant had knowledge of the claimant’s susceptibility.
299
communication. To go further and require the actor to take steps to avoid potential damage to the peculiarly vulnerable would impose an intolerable burden on the autonomy of individuals.69
In light of this concern, McHugh J regarded the normal fortitude test as setting a point at which ‘a reasonable compromise [was reached] between victims and actors’.70 This consideration struck ‘a fair balance between the need for compensation for victims of shock and the right of the individual to avoid liability for actions that ordinary persons would not see as likely to give rise to psychiatric illness’.71 McHugh J stated:
To repudiate the normal fortitude test then is to repudiate the touchstone of the common law doctrine of negligence – reasonable conduct. To repudiate it also ignores the right of citizens in a free society not to have their freedom of action and communication unreasonably burdened. Most motor vehicle accidents could be avoided if cars were driven at a speed less than 10 km per hour. But to impose such a standard of care on drivers would unreasonably hamper the speed of travel, increase congestion on the roads and burden the economy with unnecessary increases in the cost of transporting goods and persons. In the law of nervous shock, as in other areas of negligence law, the notion of reasonableness should condition the duty to exercise reasonable care for the safety of others.72
Also consistent with the approach advanced in Part II was his Honour’s view that appreciability of the risk of psychiatric harm at a community understandings level was the appropriate standard. McHugh J stated:
in the absence of a pre-existing duty relationship, a person has a duty to take care in a nervous shock case nervous shock case only when a reasonable person in the defendant’s situation would realise that his or her conduct might cause psychiatric illness. What is reasonable is to be judged by reference to the community’s general knowledge of the effect that stressors on ordinary persons of normal fortitude.73
Hayne J in addition regarded the purpose of the normal fortitude consideration as being to limit liability to cases in which the risk of such injury was appreciable at a community
69 Ibid 353[99]. 70 Ibid 358[112]. 71 Ibid. 72 Ibid 358[113]. 73 Ibid 358[114].
300 understandings level.74 His Honour was of the view that what was ‘reasonable’ should be tethered to community standards, stating:
proper regard must be paid to the need for the law of negligence to reflect community standards and understandings of what is meant by ‘reasonable’. Only if that is done will the law effectively work its purpose of promoting socially responsible behaviour. To go beyond accepted standards and understandings of what is ‘reasonable’ extends the law of negligence too far.75
The notion of ordinary fortitude required ‘consideration of what, as a matter of general community expectation, could reasonably be foreseen to be the reaction of the reasonable or ordinary person to a particular kind of stressful event’.76 His Honour regarded ordinary fortitude as generally the only control mechanism that would need to be considered, with the duty of care being held to all those who could satisfy this test and the test of reasonable foreseeability of harm.77 This approach was one which Hayne J regarded as: ‘treat[ing] the individual’s interest in psychological integrity as being no less valuable, and no less worthy of protection, than that person’s interest in physical integrity’.78
8.3 Annetts v Australian Stations Pty Ltd (2002)79
Annetts is another of the most significant common law cases in the context of this thesis. This case tested the legal principles concerning what distressing phenomenon would be sufficient to justify a finding of liability, particularly whether a claimant who was removed in time and space from the scene of an accident involving a loved one could be owed a duty of care. The approach taken by the High Court in Annetts was arguably more consistent with corrective justice than any other previous case. This case is remarkable not only because the extension of liability in the case is consistent with the approach advanced in this thesis, but also because the limitations on liability – that is, non-determinative and flexible considerations going to an overriding test of reasonable foreseeability – were also consistent with this approach.
74 Ibid 410[272]. 75 Ibid. 76 Ibid 411[274]. 77 Ibid 411[275]. 78 Ibid. 79 (2002) 211 CLR 317 (‘Annetts’).
301
The claimants in Annetts were the parents of a 16 year old boy who died as a result of the defendant’s negligence. The claimants’ son worked for the defendant as a station hand on one of the defendant’s remote cattle stations and prior to allowing him to work for the defendant, the claimants sought assurances from the defendant that their son would be suitably supervised and kept safe whilst in their employment. These assurances were given to the claimants by the defendant. However, less than two months after employment commenced, the defendant sent the claimants’ son to a remote station unsupervised. He subsequently went missing and died, and the claimants both suffered psychiatric injury as a result. Neither of the claimants directly witnessed the death of their son, nor did they suffer a sudden shock to the senses.
Annetts is doctrinally significant as the High Court in this case held that even though the claimants did not directly perceive an accident or its immediate aftermath and did not suffer a sudden shock to the senses, they were nonetheless owed a duty of care by the defendant.80 This was on the basis that psychiatric injury to them was reasonably foreseeable, there being a pre- existing relationship between the parties as a result of the specific assurances sought by the claimants and given by the defendant regarding their son’s safety.81 The High Court held that liability in cases involving psychiatric injury was not limited only to those in which the claimant could establish that they had directly perceived a phenomenon or its immediate aftermath, and had suffered a sudden shock.82 Thus, Annetts represents a vast widening of the ambit of liability which would barely have been comprehensible in the aftermath of Coultas in the 1880s, or even following Chester in the late 1930s.
In the years following the decision in Jaensch,83 there were a relatively large number of cases in Australia which considered the question of what connection the claimant was required to establish between an accident involving another and their subsequent psychiatric injury. The legal authorities which existed at the time of Annetts indicated that the claimants faced significant hurdles in relation to their claim. Jaensch itself suggested that the claimants would
80 Ibid 337-8[37], [42] (Gleeson CJ), 341[54] (Gaudron J), 364-5[139] (McHugh J), 397[236] (Gummow and Kirby JJ), 419-20[305] (Hayne J). Callinan J also found for the claimants, but did so on the basis that the requirement for direct perception was satisfied: 439[365]. 81 Ibid 337-8[37], [42] Gleeson CJ, 341[54] (Gaudron J), 367[144] (McHugh J), 397[236] (Gummow and Kirby JJ), 419[304] (Hayne J). 82 Ibid 333[18] (Gleeson CJ), 340[51] (Gaudron J), 390[213], 394[225] (Gummow and Kirby JJ). 83 Considered above at section 7.3.
302 need to establish that they had perceived some aspect of the event involving a loved one, with the finding in the claimant’s favour in that case being based on satisfaction of a retained requirement for direct perception. It also seemed that Brennan J’s sudden shock consideration might be a significant hurdle for the claimants to overcome, considering the realisation of their son’s death was gradual, occurring over the course of a number of months.
A few Australian cases in the time between Jaensch and Annetts suggested that the courts might be open to finding liability in cases where the claimant’s psychiatric injury resulted from learning of the death of a loved one from a third party.84 In the Supreme Court of Queensland in Petrie v Dowling,85 Kneipp J found that liability extended to claimants who suffered psychiatric injury as a result of receiving distressing news, provided it could be established that shock and subsequent psychiatric injury were causally related to the receipt of such news.86 A few years later in Coates v Government Insurance Office (NSW),87 Kirby P stated in obiter that he was of the view that there was no reason in logic or principle to prevent claims arising solely from what one had been told by a third party.88 His Honour regarded it as being clearly foreseeable ‘in the ordinary course of human experience’ that young children might suffer psychiatric injury as a result of being told of the sudden death of their father.89 Moreover, in
84 See, eg, Coates v Government Insurance Office (NSW) (1995) 36 NSWLR 1, 10 (Kirby J); Reeve v Brisbane City Council [1995] 2 Qd 661, 669-74 (Lee J); Petrie v Dowling [1992] 1 Qd 284, 286-8 (Kneipp J); Pham v Lawson (1997) 68 SASR 124, 139-44 (Lander J). 85 [1992] 1 Qd R 284. In Petrie, the claimant suffered psychiatric injury after being informed of the death of her daughter, who, due to the defendant’s negligent driving, had been struck by the defendant’s car whilst she was riding her bicycle. The claimant was at work when she was informed by friends that her daughter had been hit by a car and was in the hospital. Immediately upon arriving at the hospital, the claimant asked the nurse whether her daughter was dead, and was told that she was in rather a blunt manner. The claimant thereafter went into a state of panic, causing severe psychiatric disturbance. In this case, the claimant’s injury arose solely from what was told to her: at 286-7, 288. 86 [1992] 1 Qd R 284, 286-7, 288. 87 (1995) 36 NSWLR 1. In this case, the claimants suffered psychiatric injury as a result of being told of the death of their father. The claimants were two children – aged 11 and 14 – of a man killed in a motor vehicle accident by the negligent driving of the defendant. Neither of the claimants could satisfy the narrow conception of proximity outlined in McLoughlin, as neither saw or heard the accident or its immediate aftermath. Neither claimant was near the accident scene at the time of the event, and neither viewed his body. Furthermore, there was also no sudden shock in the form of a sudden sensory perception of the accident or its aftermath. 88 (1995) 36 NSWLR 1, 10. Gleeson CJ and Clarke JA expressed no opinion on this matter, the case having been decided on the alternative ground that the claimants had failed to establish that they had suffered the requisite psychiatric damage: ibid 3, 7 (Gleeson CJ); 23 (Clarke JA). 89 Ibid.
303 the modern world, psychiatric injury as a result of hearing of distressing news by telephone was just as appreciable as psychiatric injury resulting from what one had seen or heard.90
Similarly, Lee J in Reeve v Brisbane City Council91 was of the view that a sufficiently close relationship between a claimant and a loved one who has been injured or killed might be sufficient to satisfy the requirement for proximity, notwithstanding the lack of attendance at the accident sight and the absence of direct perception.92 Lee J was of the view that given modern developments in law and science, it was not acceptable for the law to place such importance on physical limitations on recovery.93 His Honour was of the view that the claimant in Reeve was prevented from attending the scene of the accident due to the seriousness of the events leading to the sudden death of her husband. As such, a limit on liability based on such an arbitrary factor would leave the law in a sorry state, being unprincipled in nature and effect.94 The decision in Pham v Lawson95 in the South Australian Court of Appeal might also have supported the claimants’ action in Annetts. This was because the claimant in Pham was found
90 Ibid. For Kirby J, such distressing news could be brought to an individual by telephone in such a way as to be every bit ‘as immediate to the senses of the recipient as actual sight and sound of the catastrophe would be’: 11. His Honour further stated:
The law should now recognise that, at least from a medical understanding of the outdated legal denomination of ‘nervous shock’, it is as much the direct emotional involvement of a plaintiff in an accident or perilous situation, as his or her physical presence at the scene or directly at its aftermath that is pertinent to the level and nature of the injury suffered, and the consequent psychological damage: ibid. Kirby P here referred to the article by Danuta Mendelson entitled ‘The Defendants’ Liability for Negligently Caused Nervous Shock in Australia – Quo Vadis’ (1992) 18 Monash University Law Review 16, 40-4.
91 [1995] 2 Qd R 661. The claimant in Reeve was the spouse of a man who was killed after being struck by a bus driven negligently by the defendants’ servant. The claimant did not perceive by sight or by hearing anything relating to the accident. She did not go to the accident scene, and she only saw her husband’s body a few days after the accident at the funeral parlour. Her psychiatric injury instead resulted from the distress caused by learning of his death. 92 Ibid 667, 674-5. 93 Ibid 669. 94 Ibid 670-1. 95 (1997) 68 SASR 124. The claimant in Pham suffered psychiatric injury as a result of events related to the death of her 7 year old daughter. The claimant was told by police officers who came to her door that her family had been involved in a motor vehicle accident, and that her daughter had been killed. The claimant immediately went into a state of panic. She was driven to the hospital by the police, and on the way there was driven past the accident scene which was brightly lit by emergency vehicles. The claimant said she knew that her daughter had died there. At the hospital, the claimant sat in a room with her husband and her 4 year old son. Whilst dressing her daughter for the funeral, the claimant suffered a panic and felt unable to breath. The claimant was subsequently diagnosed as suffering from ‘a bereavement reaction, complicated by post traumatic symptoms’, and suffering from ‘an acute post traumatic stress disorder’.
304 to be owed a duty of care despite not witnessing the accident or its immediate aftermath by sight or by hearing, and not attending the scene of the accident at the time of the accident.96
However, in none of these cases – other than in Petrie v Dowling97 – had the court found for a claimant who had suffered psychiatric injury solely as a result of learning of the death of a loved one.98 In Coates, the claimants’ actions were ultimately denied on the basis that the medical evidence did not establish that either of them had suffered a recognisable psychiatric illness.99 In Reeve v Brisbane City Council,100 Lee J ultimately found against the claimant on the grounds that her injury was not the result of a sudden shock to the senses.101 In Pham v Lawson,102 Lander J’s finding that the claimant was owed a duty of care was based on a finding that there was sufficient proximity to establish liability, this being based on the presence of three particular stressors. These not only included being told of the accident, but also that the claimant witnessed distressing scenes on being driven to the hospital, and experienced distress seeing her husband and child in hospital.103
The notion of causal proximity was also used in the intervening period between Jaensch and Annetts to restrict the ambit of liability. In Spence v Percy,104 the claimant suffered psychiatric injury as a result of the involvement of her daughter in a motor vehicle accident which left her with grave injuries. The claimant’s daughter was left in a coma as a result of the accident, and died due to her injuries some 4 years later. The Queensland Court of Appeal found against the claimant in Spence on the basis that she was unable to establish that there was sufficient causal proximity between the negligence of the defendant and her psychiatric injury.105 It is notable in
96 (1997) 68 SASR 124, 145-9. 97 [1992] 1 Qd R 284. 98 That is, in the absence of having directly perceived an event or its immediate aftermath, and in the absence of having suffered a sudden shock to the senses. 99 (1995) 36 NSWLR 1, 3 (Gleeson CJ), 18-19, 21 (Clarke JA). 100 [1995] 2 Qd R 661. 101 Ibid 676. His Honour found that there was not a sufficient causal connection between the claimant’s distress upon learning of the death of her husband and the onset of psychiatric illness 18 months to 2 years later to justify a finding that her injury was shock-induced. On the facts, there were a number of events considered to be unrelated to the defendant’s negligence which had a causative effect on her psychiatric injury, including the stress and anxiety associated with living in the home she shared with her husband after his death, friction between members of her family, legal action, and relationship issues prior to his death: ibid. 102 (1997) 68 SASR 124. 103 Ibid 145. 104 [1992] 2 Qd R 299. 105 Ibid 310[5]-[30] (Shepherdson J), 317[30]-[50] (Williams J), 320[50]-321[5]-[10]. The claimant in Spence suffered psychiatric injury from a combination of learning about the
305 this respect that the High Court of Australia in Sullivan v Moody106 later held that proximity was no longer to be considered the unifying general principle underpinning the duty of care in negligence.107 This was on the grounds that the notion of proximity provided little in the way of a process of reasoning and, as such, was of no practical guidance in cases which were not analogous to previous cases in which a duty had been found.108 Significantly, there were also a number of meritorious claims in this intervening period between Jaensch and Annetts which were denied on the basis that the claimant had not suffered a sudden shock to the senses, including Campbelltown City Council v Mackay,109 Anderson v Smith,110 Chiaverini v Hockey,111 and Lowns v Woods.112
accident from a third party, from the shock of seeing her daughter in the hospital, and from caring for her over a prolonged period of time. Further contributing factors were the stress of witnessing her daughter on a number of occasions going into fits and requiring medical intervention, as well as her unexpected death. 106 (2001) 207 CLR 562. 107 Ibid 578-9[48]. 108 Ibid. The High Court rejected the approach taken by the House of Lords in England in Caparo Industries plc v Dickman [1990] 1 All ER 568, considering the appeal to proximity and notions of fairness an unwarranted invitation to search for policy as opposed to principle. This was undesirable as a reliance on matters of policy would, for the High Court, induce discretionary decision-making into the law. The court unanimously found that reasonable foreseeability was insufficient on its own to establish a duty of care, on the basis that such an open test would impose an intolerable burden on potential defendants, and cut across other areas of law. Instead, the High Court in Sullivan implicitly adopted the ‘salient features’ test – a test which had been advanced by Gummow J in Perre v Apand Pty Ltd (1998) 192 CLR 180, 253 – which involved asking whether the ‘salient features of the matter gave rise to a duty of care’: ibid at 576-9[42]- [48]. 109 (1989) 15 NSWLR 501. In this case, the New South Wales Court of Appeal found against the claimants who were husband and wife because their psychiatric injuries – caused by the gradual crumbling of their newly-built home – were the result of exposure to a number of gradual assaults on the nervous system: ibid 503-4 (Kirby P), 504-5 (Samuels JA), 506-510 (McHugh JA). Kirby P was highly critical of the sudden shock consideration, stating that the law should not be artificially confined by outmoded scientific understandings: at 503-4. 110 (1990) 101 FLR 34. In Anderson, the claimant’s psychiatric injury was caused by the death of her daughter after being in a coma for over 12 months following her near-drowning. Justice Nader denied the claimant’s action on the basis that her injury was caused by the distress she experienced in caring for her daughter over the prolonged period leading up to her daughter’s death, and by the death itself: Ibid 50. Also see Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 241-2. 111 [1993] Aust Torts Reports 62,254 ¶81-233. The court in Chiaverini found against the claimant on the grounds that her injury was caused by gradual exposure to her husband’s chronic condition, rather than by her witnessing a sudden and upsetting event: ibid 62,256. Also see Danuta Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 199-200. 112 [1996] Aust Torts Reports 63,151, ¶81-376. The claimant in Lowns, the mother of an 11 year old boy, suffered psychiatric injury as a result of her son experiencing a grand mal epileptic seizure which was so severe that it resulted in him being left a quadriplegic. This claim was on the basis that the claimant was not exposed to a sudden shocking event: ibid. See Danuta
306
In the United Kingdom, despite two early indications that a flexible approach to physical and temporal considerations might be taken,113 the courts adopted an approach which favoured clear though inflexible and arbitrary boundary lines for reasons of policy. In Alcock v Chief Constable of South Yorkshire Police,114 a case arising out of the Hillsborough football stadium disaster, the House of Lords held that the claimants were required to establish sufficient proximity between their psychiatric injury and the defendant’s negligence in addition to having to establish that psychiatric injury to them was reasonably foreseeable.115 In doing this, the House of Lords adopted a rigid approach to the notion of proximity characterised by narrow and inflexible physical, temporal, and relational boundary lines.
The claimants in Alcock were a variety of relatives of those killed as a result of the Hillsborough stadium tragedy. Some were at the stadium and directly witnessed the tragedy unfolding in front of them, whilst others witnessed the scenes on television. Some did not witness the scenes in person or on television but saw their deceased loved one a few hours later at the hospital in order to identify their bodies. The relationships with those killed in the tragedy included parents
Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998) 200-1; Danuta Mendelson, ‘Dr Lowns and the Obligation to Treat: Creative Law-Making in the New South Wales Court of Appeal’ (1996) 4 Torts Law Review 242. 113 See Hevican v Ruane [1991] 3 All ER 65; Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73. In Hevican, the Queen’s Bench found for a claimant who suffered psychiatric injury as a result of being told of the death of his son and viewing his body in the mortuary nearly 2 hours later: Hevican v Ruane [1991] 3 All ER 65, 72. In Ravenscroft, the Queen’s Bench found for a claimant who suffered psychiatric injury due to the death of her son, despite her injury arising from being told of his death by her husband at the hospital: Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73, 84-6. 114 [1991] 4 All ER 907. The 10 claimants in this case were a number of individuals closely related to loved-ones killed in the Hillsborough football stadium disaster in 1989. There was a variation in the particular circumstances of each claimant’s case. Relationships with deceased loved ones included children, grandchildren, siblings, and a fiancé. The circumstances of each claimant becoming aware of the disaster and the death of their loved one also varied. In two cases, claimants were at the ground at the time of the accident and saw the events unfolding. Others only became aware of the disaster after watching scenes on television or after hearing news reports on the radio. Claimants also discovered the deaths of their loved ones in a variety of ways. One claimant identified the body of their loved one later that night, and another early the next morning. Others were informed of the deaths on the following day. Of those who identified the bodies of their loved ones, all were in an horrific state due to the crushing injuries they had sustained. 115 Ibid 914 (Lord Keith), 918 (Lord Ackner), 926 (Lord Oliver), 933 (Lord Jauncey), 937 (Lord Lowry).
307 of children killed, grandparents of grandchildren killed, a fiancé of a spouse killed, and a relationship of brothers-in-law. None of these claimants succeeded in their claims.
Lords Keith, Ackner, and Jauncey were of the view that the categories of relationship were not closed and depend upon the facts of each case.116 However, Lords Keith, Ackner, and Oliver found that on the facts, the claimants who lost brothers were unable to satisfy the requisite proximity of relationship.117 Their Honours also found that whilst the claims based on the relationships of child and fiancé were sufficiently proximate, those claims failed on the basis that none of them were able to satisfy the requirement for sight or hearing of an event or its aftermath, all being based on what these particular claimants had seen or heard on the television or over the radio.118 Lords Ackner and Jauncey further found that none of the claimants was able to satisfy the requirement for physical proximity, as the closest in time any of the claimants had witnessed the body of their deceased loved one was over 8 hours after the disaster.119 These rigid boundary lines were subsequently maintained in a series of decisions.120 All of these claims were arguably meritorious, and application of the tight restrictions outlined in Alcock resulted in all of them being denied.121
116 Ibid 914 (Lord Keith), 918 (Lord Ackner), 935 (Lord Jauncey). 117 Ibid 915 (Lord Keith), 921 (Lord Ackner), 931 (Lord Oliver). 118 Ibid 915 (Lord Keith), 921 (Lord Ackner), 931 (Lord Oliver), 936 (Lord Jauncey). 119 Ibid 921 (Lord Ackner), 936 (Lord Jauncey). Lords Keith, Ackner and Oliver suggested that the law should not compensate cases of psychiatric injury which arose simply from what one was told, and on that basis doubted the correctness of the decisions in Hevican and Ravenscroft: at 915 (Lord Keith), 917 (Lord Ackner), 932 (Lord Oliver). Indeed, in March 1992, the English Court of Appeal in Ravenscroft [1992] 2 All ER 470 overturned the decision of the Queen’s Bench on the basis of the finding in Alcock. 120 These include Taylor v Somerset Health Authority [1993] 4 Med LR 34, Calascione v Dixon (1993) 19 Butterworths Medico-Legal Reports 97, Sion v Hampstead Health Authority [1994] 5 Med LR 170, Taylorson v Shieldness Produce Ltd [1994] PIQR 329, McFarlane v EE Caledonia Ltd [1994] 2 All ER 1, and Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351. 121 A forceful criticism of the arbitrary limitations on liability characteristic of the law in England was provided by Thomas J in a dissenting judgment in the New Zealand Court of Appeal in van Soest v Residual Health Management Unit (1999) NZLR 179. His Honour was particularly critical of the immediate aftermath concept, stating that it was a ‘crude means of determining temporal proximity’ which resulted in ‘invidious distinctions.’ Regarding fears of the floodgates of litigation as overplayed and the law as set out in Alcock as unduly restrictive, Thomas J called for the abandonment of all rules relating to geographical, temporal, and relational proximity. His Honour stated:
The argument for abandoning lock, stock and barrel the elusive concept of proximity is overwhelming. At best the concept is an artificial one which depends more upon the Court’s abstract perception of what is the reasonable area for the imposition of liability than upon any logic or process of analogical deduction: ibid at 179-207.
308
The law in England took a further step away from the law in Australia in Page v Smith.122 This case created a distinction between participants in accidents (known as ‘primary’ victims) and mere bystanders (known as ‘secondary’ victims),123 with different legal consequences resulting from such a categorisation.124 Lord Lloyd (with whom Lords Ackner and Browne-Wilkinson agreed),125 found that the law should treat primary and secondary victims differently when considering the issue of the existence of a duty of care.126 Where a claimant was a secondary victim (i.e., a bystander), the test was whether psychiatric injury was reasonably foreseeable to a person of normal fortitude. Furthermore, secondary victims also needed to satisfy the Alcock control mechanisms.127 On the other hand, where a claimant was a primary victim (i.e., a participant in an accident), the test was whether personal injury, as a general category, was reasonably foreseeable. If this test was satisfied, no further control on liability was warranted.128
122 [1995] 2 All ER 736. 123 This distinction was based on Lord Oliver’s comments in Alcock: at 923. 124 The claimant in Page was involved in a motor vehicle accident when a car pulled in front of him. He was driving at approximately 30 miles per hour when the cars collided, with the trial judge describing the collision as being of ‘moderate severity’. Despite both vehicles suffering considerable damage, the claimant was not physically injured in the accident, and was able to drive his car home. Around 3 hours later, the claimant started experiencing a recurrence in symptoms of his pre-existing myalgic encephalomyelitis (ME), which subsequently became chronic. 125 [1995] 2 All ER 736, 742, 752. 126 Ibid 767. 127 Ibid 767. 128 Ibid 767-8. Canadian law at the time also required a close temporal connection between the accident and the claimant’s subsequent psychiatric injury: see Beecham v Hughes (1988) 27 BCLR (2d) 1 (CA), 46; Rhodes v Canadian National Railway (1990) 50 BCLR (2d) 273 (British Columbia), 5 (MacFarlane J), 18 (Taylor J), 19 (Wood J), 29 (Wallace J), 48 (Southin J); Devji v District of Burnaby (1999) BCCA 599 28-9 (McEachern CJ), 41 (Ryan J), 46-7, 49-50 (Mackenzie J); cf Grzywacz v Vanderheide [1992] OJ No. 2856, 37 ACWS (3d) 855. In the United States, the requirement for physical impact was at this time still required in many states, as was the ‘zone of danger’ limitation, and the requirement for physical injury: see Stephan Krejci, ‘Is General Negligence the New Exception to the Florida Impact Rule? (2015) 10(2) Florida A&M University Law Review 267, 267-8, 283-93; Betsy Grey, ‘Neuroscience and Emotional Harm in Tort Law: Rethinking the American Approach to Free-Standing Emotional Distress Claims’, in Current Legal Issues (Oxford University Press, 2011) 6; Colin E Flora, ‘Special Relationship Bystander Test: A Rational Alternative to the Closely Related Requirement of Negligent Infliction of Emotional Distress for Bystanders’ (2011-2012) 39 Rutgers Law Record 28, 29.
309
8.3.1 Prevailing understandings of the causes of mental disorders
The risk of psychiatric injury to Mr and Mrs Annetts in the circumstances of the case was readily appreciable at both an expert and common understandings level at the time of the accident. It had by this time long been known that the death of a child was strongly associated with the onset of mental disorders.129 By the time of this event, research had further established that there was a link between the loss of a loved one in distressing and unexpected circumstances and the onset of PTSD,130 depression,131 and complicated grief syndrome.132 The fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) had been published in 1994, and included a new disorder named ‘acute stress disorder’ in addition to PTSD.133 In 2013, a category of disorders called ‘Trauma-and Stressor-Related Disorders’ would eventually be included in the Diagnostic and Statistical Manual of Mental Disorders V (DSM-V).134 It was also known by this time that there are a number of specific circumstantial factors that are particularly strongly related to the onset of psychiatric disorders due to the death of a loved one. In particular, it was well-known at the time that loss of a loved one is most strongly related to the onset of psychiatric injury when the loss is unexpected, complicated, or
129 See the discussion of prevailing understandings with respect to Hambrook above at section 5.5.1, and with respect to Chester at section 6.2.1. 130 Mardi J Horowitz, ‘Stress-Response Syndromes: A Review of Posttraumatic Stress and Adjustment Disorders’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 56-7; Sidney Zisook, Yulia Chentsova- Dutton and Stephen R Schucter, ‘PTSD Following Bereavement’ (1998) 10(4) Annals of Clinical Psychiatry 157, 161-2. 131 See ML Bruce, K Kim, Leaf PJ and S Jacobs, ‘Depressive Episodes and Dysphoria Resulting from Conjugal Bereavement in a Prospective Community Sample’ (1990) 147 American Journal of Psychiatry 608; PJ Clayton, ‘Bereavement and Depression’ (1990) 51 Journal of Clinical Psychiatry 34; S Zisook and S Schuster, ‘Uncomplicated Bereavement’ (1993) 54 Journal of Clinical Psychiatry 365; cited in Lisa C Barry, Stanislav V Kasl and Holly G Prigerson, ‘Psychiatric Disorders Among Bereaved Persons: The Role of Perceived Circumstances of Death and Preparedness for Death’ (2002) 10(4) American Journal of Geriatric Psychiatry 447, 447. 132 See HG Prigerson, E Frank, SV Kasl and CF Reynolds, ‘Complicated Grief and Bereavement- Related Depression as Distinct Disorders: Preliminary Empirical Validation in Elderly Bereaved Spouses’ (1995) 152 American Journal of Psychiatry 22; HG Prigerson, AJ Bierhals, PK Maciejewski, ‘Traumatic Grief as a Distinct Disorder from Bereavement-Related Depression and Anxiety: Replication Study’ (1996) 153 American Journal of Psychiatry 1484; cited in Lisa C Barry, Stanislav V Kasl and Holly G Prigerson, ‘Psychiatric Disorders Among Bereaved Persons: The Role of Perceived Circumstances of Death and Preparedness for Death’ (2002) 10(4) American Journal of Geriatric Psychiatry 447, 447. 133 Ibid. 134 Diagnostic and Statistical Manual of Mental Disorders V (DSM-V) (5th ed, Washington DC, American Psychiatric Association, 2013).
310 perceived as unfair.135 It was also known that there are a number of factors which impact upon the level of psychopathology suffered following the death of a loved one, including the suddenness of the death and the level of preparedness for the death.136 Moreover, by the time of this case, it was well-understood that deaths involving particularly distressing circumstances, such as deaths caused through violence, are strongly associated with the onset of mental disorders.137
It is important to note that the fact that Mr and Mrs Annetts did not see the death of their son would not likely have been particularly relevant to an expert in relation to the question of whether they may go on to suffer psychiatric injury as a result. The scientific evidence at this time did not regard perception of the death of a loved one as material to the question of whether someone whose loved one has been killed will go on to suffer psychiatric disorder as a result.138 Of particular importance in this case was that Mr and Mrs Annetts were not prepared for the death of their son. His death was unexpected, and the knowledge of it, particularly of the distressing circumstances surrounding the death, would likely have come to them as a very traumatic shock. On this basis, it is arguable that an expert at the time may well have been able to appreciate the risk of psychiatric injury to parents due to the death of a child in circumstances
135 Mardi J Horowitz, ‘Stress-Response Syndromes: A Review of Posttraumatic Stress and Adjustment Disorders’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) 56-7; Sidney Zisook, Yulia Chentsova- Dutton and Stephen R Schucter, ‘PTSD Following Bereavement’ (1998) 10(4) Annals of Clinical Psychiatry 157, 161-2. 136 See Lisa C Barry, Stanislav V Kasl and Holly G Prigerson, ‘Psychiatric Disorders Among Bereaved Persons: The Role of Perceived Circumstances of Death and Preparedness for Death’ (2002) 10(4) American Journal of Geriatric Psychiatry 447, 448. Also see Naomi Breslau, Ronald C Kessler, Howard D Chilcoat, Lonni R Schultz, Glenn C Davis and Patricia Andreski, ‘Trauma and Posttraumatic Stress Disorder in the Community: The 1996 Detroit Area Survey of Trauma’ (1998) 55 Archives of General Psychiatry 626, 628, 630-2. 137 See SA Murphy, A Das Gupta, KC Cain et al, ‘Changes in Parents’ Mental Distress After the Violent Death of an Adolescent or Young-Adult Child: A Longitudinal Prospective Analysis’ (1999) 23 Death Studies 129; LM Range and NM Niss, ‘Long-Term Bereavement from Suicide, Homicide, Accidents and Natural Deaths’ (1990) 14 Death Studies 423; SA Murphy, T Braun, L Tillery et al, ‘PTSD Among Bereaved Parents Following the Violent Deaths of their 12 to 28 Year-Old Children: A Longitudinal Prospective Analysis’ (1999) 12 Journal of Traumatic Stress 273; cited in Lisa C Barry, Stanislav V Kasl and Holly G Prigerson, ‘Psychiatric Disorders Among Bereaved Persons: The Role of Perceived Circumstances of Death and Preparedness for Death’ (2002) 10(4) American Journal of Geriatric Psychiatry 447, 454. 138 The notes on the diagnostic features of PTSD in the DSM-V note that PTSD may be suffered through learning of the violent or accidental death of loved ones: Diagnostic and Statistical Manual of Mental Disorders V (DSM-V) (5th ed, Washington DC, American Psychiatric Association, 2013) 309.81 (F43.10). This was also noted in the diagnostic features of PTSD in the DSM-IV-TR (4th ed, Washington DC, American Psychiatric Association, 2000) 309.81.
311 similar to those in Annetts. The risk of psychiatric injury to Mr and Mrs Annetts in the circumstances of the case was therefore arguably readily appreciable at the time of the accident by experts.
More importantly in terms of this thesis, the risk of psychiatric injury to Mr and Mrs Annetts in the circumstances of the case was likely readily appreciable as a matter of community understandings and expectations, and had been for some period of time.139 The cultural significance of the death of a child in the early part of the twentieth century has been discussed above.140 There is also additional evidence regarding community understandings and expectations relevant to the period between Chester (ie, the last leading case which concerned the death of a child) and Annetts which sheds further light on how the death of a child may have been regarded in the general community at the time of the accident in Annetts. In particular, the subject of parental bereavement following the death of a child has been relatively common in popular literature during this time. Examples of literary works in which parental grief following the death of a child is a central theme includes ‘Death Be Not Proud (P.S.)’ by John J Gunther (1949),141 ‘Ordinary People’ by Judith Guest (1982),142 ‘The Disappearance: A Primer of Loss’ by Genevieve Jurgensen (1994),143 ‘Poems of Mourning’ by Peter Washington (1998),144 ‘The Lovely Bones’ by Alice Sebold (2002),145 ‘Wave’ by Sonali Deraniyagala (2013),146 ‘Rare Bird: A Memoir of Loss and Love’ by Anna Whiston-Donaldson (2014),147 and ‘Blue Nights’ by Joan Didion (2011).148
139 See the discussion of prevailing understandings with respect to Hambrook above at section 5.5.1, and with respect to Chester at section 6.2.1. 140 See sections 5.5.1 and 6.2.1. 141 John J Gunther, Death Be Not Proud (P.S.) (Harper Perennial Modern Classics, 1949) (the author tells of his grief following the death of his son due to a malignant brain tumour). 142 Judith Guest, Ordinary People (Penguin Books, 1982) (tells of the grief of losing a son). 143 Genevieve Jurgensen, The Disappearance: A Primer of Loss (WW Norton & Co, 1994) (author tells of her grief over the loss of her two young daughters in a car accident with a drunk driver). 144 Peter Washington, Poems of Mourning (Everyman’s Library, 1998) (collection of poems talking about mourning, including those discussing the grief of losing a child). 145 Alice Sebold, The Lovely Bones (Little, Brown & Co, 2002) (tells of the grief of losing a 14 year old daughter to homicide). 146 Sonali Deraniyagala, Wave (Knopf, 2013) (author’s grief following the deaths of her parents, her husband, and her 2 sons in a tsunami in Sri Lanka in 2004). 147 Anna Whiston-Donaldson, Rare Bird: A Memoir of Loss and Love (Convergent Books, 2014) (portrays the grief of parents due to the loss of their 12 year old son who drowned in a flood). 148 Joan Didion, Blue Nights (Knopf, 2011) (account of a mother’s grief as a result of the death of her daughter). See http://whatsyourgrief.com/32-books-about-death-and-grief.
312
As with grieving the death of a spouse, parental bereavement has also been a relatively common theme in twentieth and early twenty first century cinema and popular music. Films which take this subject as a central theme include ‘Europa ‘51’ (1952),149 ‘Don’t Look Now’ (1973),150 ‘Obsession’ (1976),151 ‘Ordinary People’ (1980),152 ‘Sophie’s Choice’ (1982),153 ‘The Accidental Tourist’ (1988),154 ‘The Sweet Hereafter’ (1997),155 ‘The Virgin Suicides’ (1999),156 ‘Monster’s Ball’ (2001),157 ‘21 Grams’ (2003),158 ‘Babel’ (2006),159 ‘Still Walking’ (2008),160 ‘Welcome to the Rileys’ (2010),161 and ‘Rabbit Hole’ (2010).162 Well-known examples of popular songs dealing with this subject include Eric Clapton’s 1991 hit song ‘Tears in Heaven’, Paul Simon’s 1972 single ‘Mother and Child Reunion’, and Led Zeppelin’s 1979 song ‘All My Love’.
Further evidencing the likely familiarity with the subject of grief following the death of a child during the time in question is the existence of numerous websites dealing with this topic, as well as the fact that this is a subject which has commonly appeared in newspaper articles. The advent of the internet has seen a large number of websites developed to cater for the diverse interests of users. Amongst these are the many websites which have been developed dedicated to the topic of parental bereavement, typically offering advice about how to understand and lessen the pain of parental grief.163 These websites, perhaps modern versions of the consolation
149 Tells of a mother’s grief after the death of her young son. 150 Parents’ grief over the death of their daughter by drowning. 151 Tells of a man’s grief after the deaths of his wife and daughter. See https://mubi.com/lists/films- about-grief-and-loss. 152 Grief over the loss of a child and an older brother in an accident. See http://www.tasteofcinema.com/2015/20-great-movies-about-loss-and-grief/. 153 Tells of a mother’s grief after losing her two children in the holocaust. 154 Tells of a father’s grief over the death of his son. 155 Grief over the loss of a child. 156 Parents’ grief over the deaths by suicide of their daughters. 157 Grief of a father after the suicide of his son. 158 Grief over the death of a husband and a daughter in an accident. 159 Parents’ grief over the death of a child by suicide. 160 Parents’ and brother’s grief over the loss of their son and brother. 161 Parents’ grief over the death of their teenage daughter. 162 Parents’ grief over the death of their son in a car accident. See http://www.tasteofcinema.com/2015/20-great-movies-about-loss-and-grief/; https://mubi.com/lists/films-about-grief-and-loss. 163 See, eg, http://www.stillbornandstillbreathing.com; http://grievingparents.com; http://www.thelaboroflove.com; https://myforeverchild.com; https://www.compassionatefriends.org; https://healgrief.org; http://www.griefspeaks.com; http://www.belovedhearts.com/grief_center; https://bereavedparentsusa.org; http://bereavementireland.com; https://www.griefwatch.com/death-of-a-child; www.griefandsympathy.com/grieving-loss-child.html; https://www.copefoundation.org/;
313 literature developed in earlier centuries, also commonly provide chat-rooms for users to find support from others with similar experiences, and further information regarding professional services available.164 Newspaper articles dealing with the subject of parental grief have also not been uncommon.165 Sadly, these articles commonly tell the story of grief stricken parents not being able to cope with the deaths of their children and taking their own lives.166As is evident, that grief as a result of the death of child is sufficient to cause lasting mental disorder was perhaps even more clearly understood as a matter of community understandings and expectations at the time of Annetts as it was at the time of Chester.
8.3.2 Corrective justice explanation of Annetts
The decision in the claimants’ favour in Annetts was consistent with the approach advanced in this thesis. If it is accepted that the risk of psychiatric injury to someone as a result of the
https://grievingdads.com/; http://www.childbereavementuk.org/; www.recover-from- grief.com. 164 Ibid. 165 See, eg, Sun, ‘Cash Value of Happiness’, 21 December 1940, 4; Dandenong Journal, Emerald Family’s Tragic Double Loss’, 10 October 1945, 1; Lithgow Mercury, ‘Portland Mourns for Juvenile Tragedy. Thousands Attend Funeral, 9 November 1950, 6; Dandenong Journal, ‘Clayton Parents Overcome Grief at Double Inquest’, 31 January 1951, 5; Newcastle Sun, ‘Bond for Woman Who Took Baby’, 1 April 1954, 1; Canberra Times, ‘Mystery of Cot Deaths. Britain Seeks Answer to Problem’, 4 September 1975, 16; Beverley Times, ‘Two Die in Tragic Road Smash’, 16 October 1970, 1; Canberra Times, ‘Grief of Bereaved Should ‘Run its Natural Course’’, 29 March 1977, 1; Canberra Times, ‘Victim’s Caring Helps Heal Crime Wounds’, 29 December 1980, 20; Canberra Times, ‘Grief Over Losses’, 9 May 1981, 9; Canberra Times, ‘Coming to Grips With Grief’, 9 May 1986, 8; Canberra Times, Parents Expected to Cope Too Quickly. Understanding Miscarriage’, 17 December 1988, 4; Times, ‘Booklet Helps in Accepting Death’, 12 August 1988, 12; Canberra Times, ‘Grief Over Lost Child is a Path That Need Not Be Trodden Alone’, 18 July 1989, 15; Canberra Times, ‘Why Did Baby Brian Die?’, 27 January 1991, 15; Canberra Times, ‘Very Physical Signs From Grief: Study’, 20 May 1991, 4; Canberra Times, ‘Coping With Grief When a Baby Dies’, 11 January 1992, 4; Canberra Times, ‘Grief Eased Through Celebration of Life’, 11 July 1993, 23; Canberra Times, ‘Cot Death Leaves Grief, But More Understanding’, 26 August 1994, 3; Canberra Times, ‘Parents Seeks to Save Others From Grief’, 26 May 1994, 3; Canberra Times, ‘Support and Counselling for a Very private Grief’, 12 February 1995, 2. 166 See, eg, Daily Herald, ‘Mosquito Bite Death. Father Dies of Grief’, 5 October 1920, 6; Weekly Times, ‘Mother’s Fatal Grief. A Triple Tragedy’, 26 November 1921, 8; Mail, ‘Father’s Fatal Grief’, 14 May 1927, 11; Sun, ‘A Father’s Grief. “Agony of Suffering”’, 25 March 1928, 2; Telegraph, ‘Tragic Grief. Causes Banker’s Death’, 25 September 1929, 19; Sun, ‘His Kiddies. Father’s Grief’, 27 December 1929, 9; Shepparton Advertiser, ‘Grief for Son. Agony of Father’, 20 March 1933, 4; West Australian, ‘Grief at Son’s Death. A Mother Takes Poison’, 9 August 1934, 17; Daily News, ‘Suicide Follows Grief’, 18 March 1936, 4; Daily News, ‘Grief Stricken Father Joins His Dead Son’, 21 November 1949, 1; Truth, ‘Father’s Grief Ends With Death Draft’, 11 March 1951, 34; Canberra Times, ‘Mother Tells of Grief Following Son’s Murder’, 13 October 1979, 12.
314 unexpected and distressing death of their loved one was appreciable at a community understandings level at the time of this case, Mr and Mrs Annetts both possessed a right to physical and psychological integrity which extended to protect them from the harm they suffered in the circumstances. There is accordingly a strong basis to contend that the defendants breached the norm against injuring others by negligently causing the death of the claimants’ son, and the court’s finding in the claimants’ favour was therefore just. This is so despite the fact that the claimants did not perceive the death of their son and did not suffer a sudden shock to the senses, as indicated by Brennan J in Jaensch. There is also a reasonable argument that the defendant’s ability to appreciate the risk of psychiatric harm to the claimants should have been additionally heightened by the fact that the claimants sought and were given specific assurances by the defendants that their son would be safe whilst in their care. This being the case, corrective justice demanded the intervention of the law in this case in order to re-establish the pre-existing normative equality between the parties.
The finding that the direct perception rule was not a requirement for liability but instead was a consideration going to an overriding test of reasonable foreseeability was also principled. This flexible finding allowed the direct perception consideration to play a relevant and appropriate part in the determination of whether the risk of psychiatric injury to the claimant was appreciable as a matter of community understandings and expectations. As argued above,167 the direct perception consideration will be particularly relevant to what is just between the parties where the claimant has suffered psychiatric injury due to the death or injury of a stranger. In such cases, the risk of psychiatric injury to the claimant will ordinarily be much less appreciable as a matter of community understandings and expectations in the absence of the claimant being directly exposed to traumatic scenes of horror. On the other hand, the risk of such injury will ordinarily be much more appreciable at this level where there is such exposure. As such, it is appropriate to take into account the direct perception consideration in cases involving death or injury to a stranger.
However, to take the direct perception rule into consideration where there is a close and loving relationship between the claimant and the person injured or killed is not just. In such cases, the very fact of the close and loving relationship will ordinarily make the direct perception consideration largely, if not completely, irrelevant. The existence of such a relationship
167 See chapters 6 and 7.
315 ordinarily results in the risk of psychiatric injury being readily appreciable due to mere knowledge of the unexpected and distressing death of a loved one. The fact situation in Annetts itself is a good example of this, where the risk of injury to the claimants was readily appreciable at a community understandings level despite the lack of direct perception of any particular event. As such, the direct perception consideration in the form indicated by the High Court in Annetts is principled and morally justifiable.
Their Honours’ finding that the sudden shock rule had no application in the case was also principled. As argued above,168 the sudden shock rule has no bearing on the question of whether the risk of harm to the claimant was appreciable at a scientific or community understandings level and is therefore irrelevant as a matter of principle. Making distinctions between claimants for reasons having no relationship to the defendant’s moral culpability, the sudden shock rule is also unprincipled and not morally justifiable.
Importantly, their Honours’ reasoning with respect to the direct perception and sudden shock rules was also consistent with the corrective justice approach advanced in this thesis. In particular, the reasoning of Gleeson CJ, Gaudron, Gummow and Kirby JJ showed that the relationship between the claimants and their son was the most important factor in the finding by these judges that psychiatric injury to the claimants was reasonably foreseeable, making the lack of direct perception and sudden shock in the circumstances unimportant. In finding that neither considerations were requirements of a duty of care, Gleeson CJ stated:
The process by which the applicants became aware of their son’s disappearance, and then his death, was agonisingly 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.169
Gleeson CJ concluded his judgment by stating:
168 See chapter 6 in relation to Brennan J’s judgment in Jaensch. 169 Ibid 337[36].
316
No one would doubt the foreseeability of psychiatric injury to the appellants 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.170
Similarly, Gaudron J held that the direct perception rule was not determinative in relation to the question of who could make a claim for negligently inflicted psychiatric injury, as such a requirement would be contrary to the principles enunciated in Donoghue v Stevenson.171 The notion of direct perception as a requirement in addition to reasonable foreseeability, for Gaudron J, produced ‘anomalous and illogical consequences,’172 limiting ‘the categories of possible claimants other than in conformity with the principle recognised in Donoghue v Stevenson.’173 Her Honour regarded the classes of claimant as being restricted to those who could either satisfy the direct perception rule, or those who could show ‘some special feature of the relationship between that person and the person whose acts or omissions are in question such that it may be said that the latter should have the former in contemplation as a person closely and directly affected by his or her acts.’174 Having stated that the law had not yet progressed to a stage to precisely identify when such a relationship would be said to arise, her Honour held that such a relationship arose in relation to the claims of Mr and Mrs Annetts.175
Gummow and Kirby JJ also considered the loving relationship between the claimants and their son to be significant in this case. Their Honours held that the lack of direct perception and the lack of a sudden shock did not affect the existence of the duty of care, as it was reasonably foreseeable that the claimants would suffer a recognisable psychiatric illness if something happened to their son.176 This was especially the case considering the defendants had assumed a responsibility to look after the claimants’ son.177 Their Honours regarded the control mechanisms which had arisen over the years as ‘artificial constrictions on the assessment of reasonableness’ which were not adapted to identifying meritorious claims due to their inherent
170 Ibid 338[39]. 171 [1932] AC 562. 172 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 340[51]. 173 Ibid. 174 Ibid 340-1[52]. 175 Ibid 341[54]. 176 Ibid 397[236]. 177 Ibid 397[237].
317 inflexibility.178 They were unsound in principle, and as such, had ‘operated in an arbitrary and capricious manner’,179 creating ‘elusive distinctions with no root in principle and which are foreign to the merits of the litigation.’180
Their Honours found that the direct perception consideration was not a pre-condition to recovery, stating that this would be to ‘transform a factor that favours finding a duty of care in some cases into a general prerequisite for a duty in all cases.’181 The direct perception rule lacked any principled foundation as well as any ‘apparent logic or legal merit’ and lead to arbitrary results.182 Their Honours stated:
A rule that renders liability in negligence for psychiatric harm conditional on the geographic or temporal distance of the plaintiff from the distressing phenomenon, or on the means by which the plaintiff acquires knowledge of that phenomenon, is apt to produce arbitrary outcomes and to exclude meritorious claims.183
Gummow and Kirby JJ also found that the sudden shock rule did not have any origin in principle, stating it was ‘arbitrary and inconsistent in application’.184 Their Honours were critical of the term ‘shock’, stating that ‘Terminology should not impede appreciation of the nature and scope of psychiatric harm which may be proved by appropriate evidence and against which the tort offers protection’.185 Accordingly, the judgments of Gleeson CJ, Gaudron, Gummow and Kirby JJ in Annetts were remarkably consistent with the approach advanced in Part II both in terms of the extension of liability in this case, and in relation to the restriction of the scope of liability by reference to the extent to which the risk of harm to the claimant was appreciable to an ordinary person.
McHugh and Hayne JJ’s decisions in Annetts, whilst on a different basis to Gleeson CJ, Gaudron, Gummow and Kirby JJ, were also in many ways consistent with this approach. Their Honours both found that a duty existed because of the relationship of employer and employee
178 Ibid. 179 Ibid 380[190]. 180 Ibid. 181 Ibid 394[225]. 182 Ibid 393-4[222]-[223]. 183 Ibid 393[221]. 184 Ibid 387-8[207]. 185 Ibid 386[204].
318 between the defendant and the claimants’ son. McHugh J held that the ‘special rules’ which usually governed cases involving pure psychiatric injury only applied in cases in which there was no pre-existing relationship between the claimant and the defendant sufficient to establish a duty of care.186 McHugh J considered those special rules as being concerned with establishing whether the claimant was a neighbour of the defendant in the sense of that word as used by Lord Atkin in Donoghue v Stevenson.187 Accordingly, when a claimant could establish they were a neighbour of the defendant because of a pre-existing relationship with the defendant, it would be unnecessary to consider those special rules.188 On the facts, McHugh J held that a duty of care arose as a result of the specific assurances the defendant gave to the claimants that their son would be supervised and taken care of whilst working for them.189 Hayne J came to a similar conclusion, holding that this relationship was, in the circumstances, analogous to the relationship of employer and employee.190 In the circumstances, the lack of sudden shock or closeness of connection did not affect the finding of a duty of care.191
Whilst basing his decision on the employer employee relationship, Hayne J too was of the view that physical, temporal, and relational boundary lines had presented difficulties in definition and in application.192 In this sense, his reasons were consistent with the corrective justice approach advanced in this thesis. His Honour stated that physical boundary lines were unsound because ‘they treat the infliction of psychiatric injury as if it were no more than another form of insult to physical integrity no different in any way from the bodily injury suffered by a person struck by a motor car’.193 Temporal and relational boundary lines were also unsound because they seemed ‘unrelated to the nature of the injury suffered or to the way in which it may be brought about’.194 His Honour regarded the rules that had been developed to limit liability as being best understood as attempts to confine liability in an analogous way to the way this was done in relation to physical injury.195 With the causal mechanisms in relation to
186 Ibid 364[139]. 187 [1932] AC 562, 580. See Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 364[139]. 188 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 364- 5[139]. 189 Ibid 367[144]. 190 Ibid 419[304]. 191 Ibid 419-20[305]. 192 Ibid 404-5[256]-[258]. 193 Ibid 405[258]. 194 Ibid. 195 Ibid.
319 psychiatric injury being different from those involved in relation to physical injury, this was an approach which gave primary importance to considerations of geographical or temporal proximity.196 Consequently, his Honour considered that rules such as whether the claimant was in the ‘zone of danger’ or whether the claimant had ‘directly perceived a distressing event or its aftermath’, being based on notions of geographical or temporal proximity, must be discarded.197
The only judge who held that the direct perception and sudden shock considerations were appropriately taken into account as independent requirements to the test of reasonable foreseeability was Callinan J. In this sense his judgment was not consistent with the corrective justice approach advanced in this thesis. The primary influence on Callinan J’s judgment was plain from the outset when he stated that whilst physical injuries could be objectively determined and verified, psychiatric injuries could not.198 His Honour stated:
There may be some events, which, if sufficiently graphically described, or reproduced electronically, are so catastrophic and distressing that practically everyone hearing of, or seeing them reproduced with a degree of contemporaneity to their occurrence, will be affected mentally in greater or lesser degree. Such events are highly newsworthy and the media are fully entitled, indeed, in a practical sense, obliged to report them…As with some claims for pure economic loss and negligent misstatement, there is potential, if they were to be admitted, for indeterminate loss to an indeterminate number of people.199
On the facts of the case, Callinan J found for the claimants on the basis that the requirements for sudden shock and direct perception had been satisfied. This was notwithstanding that neither Mr nor Mrs Annetts had suddenly perceived, by seeing, hearing or touching, any particular person, thing or event, as indicated was required by Brennan J in Jaensch. However, Callinan J construed these requirements broadly, stating:
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
196 Ibid. 197 Ibid 408[267]. 198 Ibid 420 [308]. 199 Ibid 420-1 [308].
320
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.200
His Honour also regarded direct perception to be a necessary requirement, stating that this would be satisfied in circumstances where:
by one or other of the senses, a ‘bilaterally related person’ perceive[s], or come[s] 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 connection will be capable of existing.201
In the circumstances of the case, Callinan J found that Mr and Mrs Annetts satisfied this requirement:
whether the ‘event’ is to be regarded as communication by the first telephone call, or the subsequent telephone calls, the viewing of James’ effects, the sighting of the photograph, or a combination of one or more of these.202
Callinan J’s interpretations the sudden shock and direct perception considerations can be described as expansive. In particular, it is difficult to reconcile his Honour’s findings with respect to the direct perception and sudden shock considerations with the findings in Anderson, Chiaverini, Coates, and Reeve, or indeed with the English authorities such as Alcock, Taylor, Sion, and Taylorson.
8.4 Gifford v Strang Patrick Stevedoring Pty Ltd (2003)203
The fact scenario in Gifford presented another opportunity for the High Court to consider the direct perception and sudden shock considerations. In this case the claimants suffered psychiatric injury after being told of the death of their father due to the negligence of the
200 Ibid 438-9 [364]. 201 Ibid 439 [365]. 202 Ibid. 203 (2003) 214 CLR 269 (‘Gifford’).
321 defendant, his employer. The absence of assurances by the defendants to the claimants in Gifford meant that Gifford perhaps provided an even more suitable opportunity for the High Court to consider these considerations than had Annetts. In Gifford, three separate claims brought by the children of Barry Gifford were heard together. Mr Gifford was killed by a forklift whilst working as a wharf labourer for the defendant. The claimants were aged 19, 17 and 14 at the time, and none of them directly perceived the accident which killed their father, only learning about it by telephone later on the day he was killed.
Gifford is of doctrinal significance because it confirmed that where there is a close and loving relationship between a claimant and a person killed, this will ordinarily be sufficient to establish that psychiatric injury to the claimant was reasonably foreseeable. The High Court found that the defendant owed the claimants a duty of care as psychiatric injury to them was reasonably foreseeable in the circumstances.204 In coming to this decision, the High Court relied on the decision in Annetts, finding that it was not significant that none of the claimants directly perceived the accident involving their father.205 All members of the court found the loving relationship between the claimants and their father important in considering whether psychiatric injury to them was reasonably foreseeable.
The High Court in Gifford had the same authorities to consider as in Annetts, as well as the decision in Annetts itself. Given the High Court’s decision in Annetts, it might be presumed that the claimants in Gifford had a reasonable chance of success in relation to their claim, notwithstanding that they had not directly perceived the accident involving their father and had suffered no sudden shock. A positive outcome for the claimants appeared even more likely considering the claimants’ father was the employee of the defendants, another characteristic of this case which was similar to Annetts. However, there were at least two aspects of Gifford which might have been relied upon by the court in order to distinguish this case from Annetts.
The first of these was that unlike in Annetts, there were no assurances sought by the claimants and given by the defendants in Gifford as to the safety of the claimants’ father whilst in the employment of the defendants. As outlined above, the specific assurances sought and given in Annetts formed an important part of the finding by the court that psychiatric injury to the
204 Ibid 277[13] (Gleeson CJ), 279[18] (McHugh J), 281[27], 294[65] (Gummow and Kirby JJ), 303-4[97] (Hayne J). 205 Ibid.
322 claimants was reasonably foreseeable. The second aspect of Gifford that might have been relied upon to distinguish the decision in Annetts was the fact that the latter case involved the more typical case of a claim made by a parent in relation to injury suffered due to the death of a child, whereas the former involved a claim by children relating to the loss of a parent. The authorities revealed that whilst parents had often successfully made claims due to the death of their child due to the negligence of another, the same could not be said for claimants made by children due to the loss of a parent. Indeed, the most relevant authority was the finding in Coates v Government Insurance Office (NSW),206 in which the claimants – two children aged 11 and 14 of a man killed due to the defendant’s negligence – were denied liability on the basis of a lack of direct perception and a lack of sudden shock.207 This too might have been relied upon by the court to distinguish Annetts.
8.4.1 Prevailing understandings of the causes of mental disorders
Prevailing understandings of the causes of mental disorders would have been the same at the time of Gifford as they were at the time of Annetts, given that the cases occurred barely within a year of each other. However, the claimant’s psychiatric injuries in Gifford were caused by the death of a parent rather than by the death of a child, and it should be considered whether this might have impacted upon how this trauma was understood at the time by experts and by the general community.
Considering expert understandings first, the research which existed at the time of Gifford indicated that the death of a parent was a severe stressor which had the potential to cause long- term psychiatric consequences.208 This association was first shown by Bowlby, who published research in the early 1960s showing the link between psychopathology and the loss of a parent
206 (1995) 36 NSWLR 1. 207 Ibid 5 (Gleeson CJ), 9 (Kirby P), 23 (Clarke JA). 208 See, eg, J Birtchnell, ‘Early Parental Death and Mental Illness’ (1970) 116 British Journal of Psychiatry 281; G Brown, L Harris, and J Copeland, ‘Depression and Loss’ (1977) 130 British Journal of Psychiatry 1; C Tennant, P Bebbington and J Hurry, ‘Parental Death in Childhood and Risk of Adult Depressive Disorders: A Review’ (1980) 10 Psychological Medicine 289; B Pfohl, D Strangl and M Tsuang, ‘The Association Between Early Parental Loss and Diagnosis in the Iowa 500’ (1983) 40 Archives of General Psychiatry 965; Emily S Harris, ‘Adolescent Bereavement Following the Death of a Parent: An Exploratory Study’ (1991) 21(4) Child Psychiatry and Human Development 267, 268.
323 in early childhood.209 Further research by Gregory, Elizur and Kaffman subsequently confirmed the association found by Bowlby.210 A decade after Bowlby’s research, Birtchnell showed that the severity of depression was associated with early and recent parent death.211 It was apparent to researchers by the time of Gifford that the effect of parental loss in early childhood on subsequent risk of mental illness was highly complex, being affected by a number of significant events both before and after the loss itself.212 However, whilst there was sometimes inconsistency in findings in the scientific literature,213 it appears reasonable to argue that there was by this time a general scientific consensus that loss of a parent in childhood was strongly associated with increased risk of subsequent onset of psychiatric disorder.214
In terms of community understandings and expectations, once again there is evidence from popular culture – including literature, and cinema – which appears to indicate that it has long
209 See J Bowlby, ‘Grief and Mourning in Infancy and Early Childhood’ (1960) 15 Psychoanalytic Study of the Child 9; J Bowlby, ‘Childhood Mourning and its Implications for Psychiatry’ (1961) 118 American Journal of Psychiatry 481: cited in John Birtchnell, ‘Depression in Relation to Early and Recent Parent Death’ (1970) 116 British Journal of Psychiatry 299, 299. 210 See, eg, I Gregory, ‘Anterospective Data Following Childhood Loss of a Parent’ (1965) 13 Archives of General Psychiatry 99; E Elizur and M Kaffman, ‘Children’s Bereavement Reactions Following the Death of the Father: II (1982) 21(5) Journal of the American Academy of Child Psychiatry 474; M Kaffman and E Elizur ‘Bereavement Responses of Kibbutz and Non-Kibbutz Children Following the Death of the Father’ (1983) 24(3) Journal of Child Psychology & Psychiatry 435; Emily S Harris, ‘Adolescent Bereavement Following the Death of a Parent: An Exploratory Study’ (1991) 21(4) Child Psychiatry and Human Development 267, 268. 211 See John Birtchnell, ‘Depression in Relation to Early and Recent Parent Death’ (1970) 116 British Journal of Psychiatry 299, 304 Also potentially important in the extent of psychological disturbance following the loss of a parent is the stage of childhood at which one experiences this loss. In particular, it has been suggested that those experiencing the loss of a parent in their younger teenage years (13-14) are especially susceptible: see Emily S Harris, ‘Adolescent Bereavement Following the Death of a Parent: An Exploratory Study’ (1991) 21(4) Child Psychiatry and Human Development 267, 277. 212 See Phyllis R Silverman and J William Worden, ‘Children’s Reactions in the early Months After the Death of a Parent’ (1992) 62(1) American Journal of Orthopsychiatry 93, 93. 213 See, eg, C Tennant, P Bebbington and J Hurry, ‘Parental Death in Childhood and Risk of Adult Depressive Disorders: A Review’ (1980) 10 Psychological Medicine 289, 297; Phyllis R Silverman and J William Worden, ‘Children’s Reactions in the early Months After the Death of a Parent’ (1992) 62(1) American Journal of Orthopsychiatry 93, 93. 214 See J Birtchnell, ‘Early Parental Death and Mental Illness’ (1970) 116 British Journal of Psychiatry 281; G Brown, L Harris, and J Copeland, ‘Depression and Loss’ (1977) 130 British Journal of Psychiatry 1; C Tennant, P Bebbington and J Hurry, ‘Parental Death in Childhood and Risk of Adult Depressive Disorders: A Review’ (1980) 10 Psychological Medicine 289; B Pfohl, D Strangl and M Tsuang, ‘The Association Between Early Parental Loss and Diagnosis in the Iowa 500’ (1983) 40 Archives of General Psychiatry 965; Emily S Harris, ‘Adolescent Bereavement Following the Death of a Parent: An Exploratory Study’ (1991) 21(4) Child Psychiatry and Human Development 267, 268.
324 been appreciated that the loss of a parent is typically accompanied by significant emotional torment. It has been argued above that accounts of the emotional pain of grief were common in ancient Greece.215 Importantly, these included accounts of grief due to the loss of a parent. One well-known example is the Greek tragedy ‘Electra’ written by Sophocles in the 4th century BC. In this play, Electra mourns the death of her father Agamemnon who has been murdered by his wife and her lover Aegisthus. Electra’s soliloquy in this play paints a vivid picture of her grief:
Oh holy light of the sun, and sky coextensive with the earth, how many odes of mourning, how many answering blows upon my bloodied breast have you heard, each time dark night has been overtaken by you? The hated bed in my miserable house knows the sorrows of my wakeful nights as I bewail my wretched father.216
It has been argued that subsequent interpretations of Electra, such as ‘Elektra’ by Hugo von Hofsmannsthal, ‘Elektra’ by Richard Strauss, and ‘Mourning Becomes Electra’ by Eugene O’Niell, have treated Electra’s mourning for her father to be more than ordinary grief, instead considering it to be pathological melancholia due to an inability to overcome the pain of this loss.217
Like the themes of grief following the death of a spouse218 and parental bereavement following the death of a child,219 the theme of grief following the death of a parent has appeared relatively commonly in popular literature and cinema. In ‘Hamlet’, William Shakespeare famously considered the emotional torment of the lead character following his father’s death. Twentieth and early twenty first century literature which shares this theme includes ‘A Very Easy Death’ by Simone De Beauvoir (1964),220 ‘A Heartbreaking Work of Staggering Genius’ by Dave Eggers (1982),221 ‘Patrimony: A True Story’ by Philip Roth (1991),222 ‘Motherless Daughters:
215 See section 6.5.1. 216 David Konstan, The Emotions of the Ancient Greeks: Studies in Aristotle and Classical Literature (University of Toronto Press, 2006) 248-9. 217 Ibid 251-2. 218 Considered above at section 7.2.1. 219 Considered above at sections 5.5.1, 6.2.1, and 8.3.1. 220 Simone De Beauvoir, A Very Easy Death (Pantheon, 1964) (grief over the death of a parent). 221 Dave Eggers, A Heartbreaking Work of Staggering Genius (Vintage Books, 2001) (grief over the death of both parents). 222 Philip Roth, Patrimony: A True Story (Simon & Schuster, 1991) (grief over the loss of a father).
325
The Legacy of Loss’ by Hope Edelman (1994),223 ‘Extremely Loud and Incredibly Close’ by Jonathan Safran Foer (2005),224 ‘Swimming in a Sea of Death: A Son’s Memoir’ by David Rieff (2007),225 ‘The Mourning Diary’ by Roland Barthes (2010),226 ‘The Long Goodbye’ by Meghan O’Rourke (2011),227 ‘Wild: From Lost to Found on the Pacific Crest Trail’ by Cheryl Strayed (2012),228 ‘Wave’ by Sonali Deraniyagala (2013),229 ‘After Visiting Friends: A Son’s Story’ by Michael Hainey (2013),230 ‘H is for Hawk’ by Helen Macdonald (2014),231 and ‘Epilogue: A Memoir’ by Will Boast (2014).232 Films which consider this theme include ‘Misunderstood’ (1966),233 ‘Babel’ (2006),234 ‘Ponette’ (2008),235 ‘Departures’ (2008),236 and ‘Beginners’ (2010).237
It is also notable in terms of common understandings that there have been many newspaper articles in the twentieth century telling of the terrible suffering of those who had lost a parent. Many articles can be found in the Australian newspapers outlining the suicides of adult children due to the grief of the death of a parent, particularly in the early twentieth century.238 Articles
223 Hope Edelman, Motherless Daughters: The Legacy of Loss (Da Capo Press, 1994) (tells of the ongoing emotional pain of living without a mother). 224 Jonathan Safran Foer, Extremely Loud and Incredibly Close (Mariner Books, 2005) (grief over the loss of a father in the 9/11 attacks on the World Trade Centre). 225 David Rieff, Swimming in a Sea of Death: A Son’s Memoir (Simon & Schuster, 2007) (tells of the author’s mother’s death due to cancer). 226 Roland Barthes, The Mourning Diary (Hill and Wang, 2010 (Eng transl.)) (discusses the author’s mourning of his mother after her death in 1977). 227 Meghan O’Rourke, The Long Goodbye (Riverhead Books, 2011) (grief as a result of the death of the author’s mother due to cancer). 228 Cheryl Strayed, Wild: From Lost to Found on the Pacific Crest Trail (Knopf, 2012) (discusses the author’s grief following the death of her mother). 229 Sonali Deraniyagala, Wave (Knopf, 2013) (author’s grief following the deaths of her parents, her husband, and her 2 sons in a tsunami in Sri Lanka in 2004). 230 Michael Hainey, After Visiting Friends: A Son’s Story (Scribner, 2013) (grief over the loss of a father). 231 Helen Macdonald, H is for Hawk (Jonathan Cape, 2014) (grief over the death of the author’s father). 232 Will Boast, Epilogue: A Memoir (Liveright, 2014) (grief over the death of a father). See http://whatsyourgrief.com/32-books-about-death-and-grief. 233 Tells of a young boy’s grief over the death of his mother. 234 Grief over the death of a mother by suicide. 235 Grief over the loss of a parent in early childhood. 236 Grief over death of father. 237 Grief over loss of a father. See http://www.tasteofcinema.com/2015/20-great-movies-about- loss-and-grief/; https://mubi.com/lists/films-about-grief-and-loss. 238 See Daily Advertiser, ‘A Daughter’s Grief. Suicide After Father’s Death’, 13 May 1924, 2; Observer, ‘A Daughter’s Grief. Suicide Near Father’s Grave’, 25 December 1926, 42; Telegraph, ‘Young Lady’s Grief. Lost Interest in Life’, 14 February 1927, 4; Mercury, ‘Schoolgirl’s Death. Apparent Case of Suicide. Grief for Dead Mother’, 8 March 1929, 10; Wagga Wagga Express, ‘Jump to Death. Son’s Grief’, 24 January 1931, 14; Longreach Leader,
326 can also be found reporting on children dying as a result of their grief. One example published in the Adelaide Advertiser on 28 August 1925 simply states: ‘After attending the funeral of her father at Arncliffe on Wednesday, Mrs Webster became weak and unstrung and died at 2am from shock.’239 Others discuss the nature of grief in young children, offering advice and assistance or warning of the risk of pathological grief processes arising in certain circumstances.240
Considered together, this evidence provides a reasonable basis to contend that an ordinary member of the community at the time of the accident in Gifford would likely have been able to appreciate the risk of psychiatric injury to a person as a result of the death of his or her father.
8.4.2 Corrective justice explanation of Gifford
If it is accepted that the risk of psychiatric injury to the claimants as a result of the death of their father was appreciable as a matter of community understandings and expectations, the decision of the High Court to find in favour of the claimants notwithstanding that they did not perceive this event or its immediate aftermath was principled. As was contended to be the case in relation to the claimants in Annetts,241 it is arguable on the basis of prevailing understandings that the claimants in Gifford each possessed a right to physical and psychological integrity which extended to protect them from the harm they suffered in the circumstances. The defendant, in exposing their employee (the claimants’ father) to the commonly appreciable risk of serious injury or death, interfered with the claimants’ right to physical and psychological integrity. Consequently, the defendants were correctly considered to have been morally responsible for causing psychiatric injury to the claimants, this then justifying the intervention of the law in order to restore the pre-existing normative equality between the parties.
‘Suicide Pact. Whole Family Wiped Out. Father and Daughters Grieved at Mother’s Death’, 4 June 1932, 12; Newcastle Morning Herald and Miners’ Advocate, ‘Son’s Suicide. Grief at Father’s Death. Minmi Tragedy Inquiry’, 25 June 1935, 2; Telegraph, ‘“Grief Over Loss of Father.” Inquest on Man Who Fell From Hotel Canberra’, 25 October 1937, 9; Armidale Express and New England General Advertiser, ‘Committed Suicide. Two Sussex Brothers. Feared Insanity. Grief For Dead Mother’, 7 October 1938. 239 See, eg, Advertiser, ‘A Grief Stricken Daughter. Death From Shock’, 28 August 1925, 17. 240 See, eg, Canberra Times, ‘Grief of Bereaved Should ‘Run its Natural Course’’, 29 March 1977, 1; Canberra Times, ‘Children Coping With Bereavement’, 20 August 1983, 12; Canberra Times, ‘Helping Children Cope With Grief’, 11 July 1992, 20; Times, ‘Bereavement Educator to Visit’, 2 August 1994, 2. 241 See section 8.2.2.
327
The reasons for decision provided by the judges in Gifford were also consistent with the approach advanced in Part II for three particular reasons. The first is that none of their Honours considered that the claimants’ lack of direct appreciation of the actual death of their father was significant enough to result in the denial of their claim, even in the absence of specific assurances provided by the defendants to the claimants.242 Central to this finding was the closeness of the relationship which was commonly known to ordinarily exist between a parent and a child, and the appreciable risk of harm which would result to one due to the death of the other.
It was on this basis that Gleeson CJ found that it was reasonable to require employers to have in contemplation the risk of psychiatric injury to the children of employees.243 McHugh and Hayne JJ went further, each finding that reasonable foreseeability of psychiatric injury extended to all those who were in a close and loving relationship with the employee in question.244 Gummow and Kirby JJ also found the close relationship between the parties – along with the fact that that the defendant directly controlled the conditions experienced by Mr Gifford, and that the claimants had no way of protecting themselves from the risk of psychiatric harm245 – to be an important factor indicating a finding in the claimants’ favour.246
The second aspect of the reasoning in Gifford which was consistent with the corrective justice approach advanced in this thesis relates to the concern for transactional equality demonstrated by Gleeson CJ, Gummow and Kirby JJ in their judgments. Gleeson CJ made reference to the importance of maintaining the pre-existing normative equality between the parties in discussing the potential consequences of an untrammelled test of foreseeability.247 His Honour expressed the view that the potential burden that would be placed on human activity by an approach which required defendants to guard against all kinds of foreseeable psychiatric injury to others would be too significant.248 In particular, his Honour was of the view that mere scientific predictability was not sufficient to justify a shift in the point at which the norm against injuring was set,
242 As there were in Annetts. 243 (2003) 214 CLR 269, 277[10]-[11]. 244 Ibid 281[27] (McHugh J), 304[98], 305[101] (Hayne J). 245 Ibid 246 Ibid 301[90]. 247 See chapters 3 and 4 for a discussion of the importance of transactional equality between the parties. 248 (2003) 214 CLR 269, 276[8].
328 recognising that such an adjustment would have negative consequences for the interests of defendants:
just as advances in medical knowledge have made us aware of the variety of circumstances in which emotional disturbance can trigger, or develop into, recognisable psychiatric injury, so they also make us aware of the implications, for freedom of action and personal security, of subjecting people to a legal requirement to anticipate and guard against any risk to others of psychiatric injury so long as it is not far-fetched or fanciful. In the context of a question of duty of care, reasonable foreseeability involves more than mere predictability. And advances in the predictability of harm to others, whether in the form of economic loss, or psychiatric injury, or in some other form, do not necessarily result in a co-extensive expansion of the legal obligations imposed on those whose conduct might be a cause of such harm.249
In making these comments, his Honour demonstrated that he considered the concept of ‘reasonableness’ as playing a central role in reconciling the interests of the parties.250 His Honour’s comments in this regard resonate particularly well with the argument presented above251 that the existence and extent of the right to physical and psychological integrity reflects not scientific understandings, but the understandings of those in the general community specifically in relation to the ability to appreciate the risk of psychiatric injury as a result of exposure to trauma.
Gummow and Kirby JJ also demonstrated a concern to maintain the pre-existing normative equality between the parties. However, rather than considering the level of knowledge required of the defendant as Gleeson CJ had done, this was demonstrated by their Honours’ consideration of the effect of a finding of liability on the freedom of action of the defendants. In particular, part of Gummow and Kirby JJ’s reasoning took into consideration that the finding of a duty did not impede the defendants in the legitimate pursuit of their business interests.252
The third aspect of the reasoning in Gifford which was principled was that Gleeson CJ and McHugh J explicitly referred to general community expectations in assessing whether it was reasonable to require the defendants to have the risk of psychiatric injury to the claimants in
249 Ibid 276[9]. 250 Ibid. 251 See section 4.4. 252 (2003) 214 CLR 269, 301-2[90].
329 mind. In finding that psychiatric injury to the claimants was reasonably foreseeable, Gleeson CJ was of the view that psychiatric injury to the claimants upon learning of the death of their father was ‘not beyond the “common experience of mankind.”’253 Similarly, McHugh J referred both the experiences of both those on the judiciary and those in the general community in finding that psychiatric injury to the claimants was reasonably foreseeable. His Honour stated:
The collective experience of the common law judiciary is that those who have a close and loving relationship with a person who is killed or injured often suffer psychiatric injury on learning of the injury or death, or on observing the suffering of that person. Actions for nervous shock by such persons are common. So common and so widely known is the phenomenon that a wrongdoer must be taken to have it in mind when contemplating a course of action affecting others. Accordingly, for the purpose of a nervous shock action, the neighbour of a wrongdoer in Lord Atkin's sense includes all those who have a close and loving relationship with the person harmed. They are among the persons who are likely to be so closely and directly affected by the wrongdoer's conduct that that person ought reasonably to have them in mind when considering if it is exposing the victim to a risk of harm.254
On this basis, it is arguable that the outcome, approach taken, and reasons for decision in Gifford were principled and just.
8.5 Conclusion
There are two important findings which flow from the analysis in this chapter. The first is that Tame, Annetts, and Gifford can now be understood in normative terms, rather than simply as expressions of official legal authority. The denial of Mrs Tame’s claim was just in the circumstances, not simply because she was unusually vulnerable to psychiatric injury but because in making the clerical error causing the claimant’s injury the defendant did not breach the norm against injuring. As the defendants were not morally responsible for causing the claimant’s injury, a finding against the claimant was therefore principled.255 By contrast, the risk of psychiatric injury to the claimants in Annetts and in Gifford was readily appreciable as a matter of community understandings and expectations and accordingly the defendants in each
253 Ibid 276-7[10]: referring to the judgment of Latham CJ in Chester v Waverley Corporation (1939) 62 CLR 1, 10. 254 Ibid 288[47] (emphasis added). 255 See sections 4.4, 8.2.1 and 8.2.2.
330 case were morally responsible for causing the claimants’ injuries.256 As the defendants breached the norm against injuring when causing injury to the claimants, it was just to find in their favour.257 Accordingly, it can be concluded that the analysis of Tame, Annetts, and Gifford in this chapter supports the second primary hypothesis in this thesis.
The second key finding in this chapter, the most significant in terms of the second primary hypothesis in this thesis, is that the approach taken by the High Court in all these three cases is consistent with the corrective justice approach advanced in this thesis.258 The finding in Tame that the normal fortitude rule is not a requirement for liability but simply a matter going to an overriding test of reasonable foreseeability is consistent with this approach in cases involving claimants who are vulnerable to psychiatric injury.259 The findings in Annetts and in Gifford that neither the direct perception nor sudden shock rules were requirements for liability but were also matters going to an overriding test of reasonable foreseeability are also consistent with the approach advanced in Part II.260 The risk of psychiatric injury by the time of these cases was readily appreciable in cases involving psychiatric injury as a result of the death of a child or the death of a parent, as a matter of community expectation and knowledge, with the key issue in such cases being the loving nature of the relationship in question.261 In such cases, the claimants’ ability to satisfy the direct perception and sudden shock rules is irrelevant to the question of whether the risk of psychiatric injury to them was appreciable at either a scientific or community level of understanding, and so these considerations are appropriately disregarded in considering the defendant’s moral responsibility for causing the claimant’s injury.262
The corrective justice approach advanced in this thesis provides a principled rationale for referring to particular considerations in particular cases, whilst not referring to others. On the
256 See the discussion of prevailing understandings at the time of Annetts at section 8.3.2 and at the time of Gifford at section 8.4.2. 257 See sections 4.4, 8.3.1, 8.3.2, 8.4.1, and 8.4.2. 258 See section 4.4 for a discussion of the corrective justice approach advanced in this thesis and argument for the existence of a right to physical and psychological integrity. Also see chapter 3 generally for the theoretical background of this argument. 259 See section 4.4 for a discussion of the compatibility between the community understandings approach and the ordinary fortitude consideration. See section 6.3.2 for a discussion of the ordinary fortitude rule as proposed in Bourhill, and section 7.3.2 for consideration of the rule in Jaensch. Also see section 8.2.2 for consideration of the rule in relation to Tame. 260 See sections 4.4, 8.3.2 and 8.4.2. 261 See the discussions of prevailing understandings in relation to Annetts at section 8.3.1 and in relation to Gifford at section 8.4.1. 262 See sections 8.3.2 and 8.4.2.
331 basis that the risk of psychiatric injury is appreciable as a matter of community expectation to those whose child,263 spouse,264 or parent265 has been killed by the negligence of another, it is principled to consider the nature the particular relationship in such cases. This the court did in both Annetts and Gifford.266 In such cases, it will not be morally justifiable to consider whether the claimant has directly perceived the distressing phenomenon in question, nor whether the claimant has suffered a sudden shock to the senses. This is because neither of these considerations are relevant to scientific or community understandings in such cases, and therefore have no bearing on the merits of the case.267 Crucially, the High Court considered neither of these considerations to be relevant in Annetts and Gifford.268
By contrast, in cases involving death or injury to a stranger where the claimant has been directly exposed to a distressing phenomenon it is principled to consider the nature of the phenomenon in question and the particular circumstances surrounding the claimant’s exposure. This is because this issue is relevant to both scientific and community understandings of the causes of mental disorders in such cases, and is therefore relevant to the merits of the case. On the other hand, it is not particularly important in such cases – as a matter of scientific and community understandings – whether the claimant and the person injured or killed were in a close and loving relationship, or whether the claimant suffered a sudden shock to the senses. Neither consideration are relevant to the merits of the case where the claimant has been directly exposed to trauma involving a stranger and are therefore justifiably disregarded as irrelevant in considering what justice between the parties requires.269
The ambit of liability was again expanded significantly as a result of the decisions in Annetts v Australian Stations Pty Ltd,270 and Gifford v Strang Patrick Stevedoring Pty Ltd.271 In neither case was the claimant close in time and space to the accident involving a third party, and yet
263 See sections 5.5.1 and 5.5.2 in relation to Hambrook, sections 6.2.1 and 6.2.2 in relation to Chester, and sections 8.3.1 and 8.3.2 in relation to Annetts. 264 See sections 7.3.1 and 7.3.2 in relation to Jaensch. 265 See sections 8.4.1 and 8.4.2 in relation to Gifford. 266 See sections 8.3.2 and 8.4.2. 267 See section 8.3.1 in relation to prevailing understandings of mental disorders resulting from the death of a child, and section 8.4.1 in relation to prevailing understandings of such disorders resulting from the death of a parent. 268 See sections 8.3.2 and 8.4.2. 269 See the argument in chapter 7 for a more in-depth discussion of this point, particularly at section 7.2.2 in relation to the decision in Pusey, and at section 7.4. 270 (2002) 211 CLR 317. 271 (2003) 214 CLR 269.
332 liability was found, based primarily on the close and loving relationship between the claimants and the person killed due to the defendants’ negligence. A claim based on facts such as these would likely have been denied at any time over the previous 110 years, and yet, the success of these cases was just given the state of community understandings and expectations at the time. It has been argued in this chapter that the High Court’s decisions in Tame, Annetts, and Gifford were consistent with the corrective justice approach advanced in this thesis, and that this supports the second primary hypothesis in this thesis.
Given that the law had by this time developed flexible and principled limitations on liability which would likely operate to prevent liability from being indeterminate, it is perhaps unfortunate then that at around the time of the decisions in Tame, Annetts, and Gifford, concern was being expressed by some in Australia that the law of negligence was in need of reform. This ultimately led to the enactment of the civil liability legislation in Australia which sought to affect many aspects of the law of negligence. In the following chapter, this legislation is considered.
333
PART III ANALYSIS
Chapter 9: Analysis of Civil Liability Legislation, Wicks and Philcox – Introduction of Arbitrary and Unprincipled
Statutory Limitations
9.1 Introduction
This chapter is the final chapter in Part III of this thesis and analyses the civil liability legislation. It will be argued in this chapter that there are a number of aspects of the civil liability legislation which are unprincipled and unjust. Two cases have been considered by the High Court since the enactment of the civil liability legislation: the New South Wales case Wicks v State Rail Authority1 and the South Australian case King v Philcox.2 These cases demonstrate that there still may be a role to be played by the common law in interpreting the civil liability legislation. They also reveal the unfortunate effects of the introduction of unjust limitations on the ambit of liability.
This chapter is divided into 3 sections. First, the Ipp Panel’s ‘Review of the Law of Negligence Report’ is briefly considered.3 This provides context for the analysis of the civil liability legislation which follows in the second section. Finally, Wicks and King are analysed.4
9.2 Ipp Report
At around the same time the High Court was handing down its judgment in Tame; Annetts, a public debate commenced regarding the law of negligence in the context of perceived rises in
1 (2010) 241 CLR 60. 2 (2015) 255 CLR 304. 3 Ipp Report ‘Review of the Law of Negligence Report’ (Commonwealth of Australia, 2 October, 2002). 4 The discussion of the civil liability legislation and Wicks and King in this chapter have been published in Martin Allcock, ‘Pure Psychiatric Injury Pursuant to the Civil Liability Legislation: An(other) Economic Perspective’ (2018) 25 Journal of Law and Medicine 814.
334 insurance premiums and what was referred to as an ‘insurance crisis’.5 In 2002, the Honourable David Ipp6 was appointed Chairperson of a panel of experts which was asked to examine methods for the reform of the common law in order to limit liability in negligence.7 In its report,8 the Ipp Panel recommended that in relation to claims of negligently inflicted psychiatric injury, the primary objective of limiting liability would be promoted by legislative enactment of the common law principles as stated by the High Court in Tame; Annetts.9 With this intent in mind, the Ipp Panel recommended that the proposed legislation embody the following principles (contained in Recommendation 34 of the Ipp Report):
(a) There can be no liability for pure mental harm (that is, mental harm that is not a consequence of physical harm suffered by the mentally-harmed person) unless the mental harm consists of a recognised psychiatric illness. (b) A person (the defendant) does not owe another (the plaintiff) a duty to take care not to cause the plaintiff pure mental harm unless the defendant ought to have foreseen that a person of
5 Eg, see Des Butler, ‘A Comparison of the Adoption of the Ipp Report Recommendations and Other Personal Injuries Liability Reforms’ (2005) 13 Torts Law Journal 203, 203-4; Peter Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (Lawbook Co, 2nd ed, 2006) 427; Des Butler, Damages for Psychiatric Injuries (Australian Legal Monographs, Federation Press, Sydney, 2004); Des Butler, ‘Gifford v Strang and the New Landscape for Landscape for Recovery for Psychiatric Injury in Australia’ (2004) 12 Torts Law Journal 1, 13- 4; Danuta Mendelson, ‘The Modern Australian Law of Mental Harm: Parochialism Triumphant’ (2005) 13 Journal of Law and Medicine 164, 169-70. 6 At the time the report was released, the Honourable David Ipp was Acting Judge of the Court of Appeal, New South Wales Supreme Court, and Justice of the Supreme Court Western Australia. Other panel members were: Professor Peter Cane, Professor of Law in the Research School of Social Sciences at the Australian National University (currently Director of Research ANU College of Law), Associate Professor Donald Sheldon, Surgeon and Chairman of the Council of Procedural Specialists, and Mr Ian Macintosh, Mayor of Bathurst City Council in New South Wales and Chairman of the New South Wales Country Mayors Association. 7 See Terms of Reference, Ipp Report ‘Review of the Law of Negligence Report’ (Commonwealth of Australia, 2 October, 2002). The Terms of Reference for the panel stated that: ‘[t]he award of damages for personal injury has become unaffordable and unsustainable as the principal source of compensation for those injured through the fault of another’: at ix. Further, it was ‘desirable to examine a method for the reform of the common law with the objective of limiting liability and quantum of damages arising from personal injury and death’: ibid. The continued expansion of common law liability was accordingly seen as undesirable and in need of limitation. For a critical analysis of the circumstances leading to the political pressure to undertake such an examination of the law of negligence, see Peter Underwood, ‘Is Mrs Donoghue’s Snail in Mortal Peril?’ (2004) 12 Torts Law Journal 39. 8 Ipp Report ‘Review of the Law of Negligence Report’ (Commonwealth of Australia, 2 October, 2002). 9 Ibid 144. Although not explicitly stated in the Ipp Report, it seems reasonable to presume that the panel regarded legislative enactment of the principles in Tame and Annetts as likely to result in the prevention of further expansion of the ambit of liability.
335
normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken. (c) For the purposes of (b), the circumstances of the case include matters such as:
(i) whether or not the mental harm was suffered as the result of a sudden shock; (ii) whether the plaintiff was at the scene of shocking events, or witnessed them or their aftermath; (iii) whether the plaintiff witnessed the events or their aftermath with his or her own unaided senses; (iv) whether or not there was a pre-existing relationship between the plaintiff and the defendant; and (v) the nature of the relationship between the plaintiff and any person killed, injured or put in peril.
It should be noted that the Ipp Panel’s outline of the common law principles laid down by the High Court in Tame; Annetts and the principles actually enunciated by the High Court in these cases are not the same in some respects.10 The Ipp Panel regarded ‘normal fortitude’ as an independent requirement for a duty of care to be owed, whereas the High Court in Tame; Annetts regarded this as merely as one of a number of factors to be taken into consideration in relation to the overriding question of reasonable foreseeability.11 The Ipp Panel’s view that the claimant was required to suffer a ‘recognised psychiatric illness’12 was also narrower than the High Court’s epithet of ‘recognisable psychiatric illness’.13 This provides context for the discussion which follows of the inconsistency in approaches taken by the various State and Territory legislatures.
10 See, eg, Peter Handford, ‘Limiting Liability for Mental Harm: Back to the Future?’ (2010) 18 Tort Law Review 5. 11 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 333[16] (Gleeson CJ), 343[61] (Gaudron J), 385[201] (Gummow and Kirby JJ). 12 See Recommendation 34(a) and 34(b) of the Ipp Report ‘Review of the Law of Negligence Report’ (Commonwealth of Australia, 2 October, 2002). 13 See Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, [7](Gleeson CJ), [44](Gaudron J), [193](Gummow and Kirby JJ), [261], [285](Hayne J). For discussion on this point, see Des Butler, ‘Gifford v Strang and the New Landscape for Landscape for Recovery for Psychiatric Injury in Australia’ (2004) 12 Torts Law Journal 1, 16- 7; Peter Handford, ‘Psychiatric Injury – The New Era’ (2003) 11 Tort Law Review 1, 13.
336
9.3 Civil liability legislation
As a result of the Ipp Report, all Australian jurisdictions enacted civil liability legislation.14 However, not all of the panel’s recommendations were adopted. In particular, Recommendation 34 with respect to mental harm was not included in the legislation enacted in Queensland, and the Northern Territory already had a statutory cause of action for such cases.15 Consequently, the common law still applies in Queensland and in the Northern Territory. The civil liability legislation is considered below, beginning with the legislation which in numerous ways is consistent with the decisions in Tame, Annetts, and Gifford, followed by the legislation which is not. It will be shown that far from bringing about a consistent national approach to such claims as was one of the aims of the Ipp Report,16 this legislation has resulted in considerable variation between the jurisdictions, and perhaps of more concern, the introduction of arbitrary and unjust restrictions on liability.
Each of these statutes are inconsistent with the approach advanced in Part II, introducing arbitrary and unprincipled limitations on liability. These statutes are also inconsistent between jurisdictions. The legislation can be broadly characterised as fitting into one of two categories in this respect. The first category, which includes the Western Australian and Australian Capital Territory Acts, largely reflects Recommendation 34 of the Ipp Report. The second category, which includes the New South Wales, Victorian, South Australian and Tasmanian legislation, introduces additional limitations on liability which go beyond those recommended in the Ipp Report.
9.3.1 Western Australian and Australian Capital Territory legislation
The Civil Liability Act 2002 (WA) and the Civil Law (Wrongs) Act 2002 (ACT) are largely identical,17 and substantially reflect Recommendations 34(b) and (c) of the Ipp Report. Section 5S(1) of the Civil Liability Act 2002 (WA) provides:
14 See Civil Liability Act 2002 (WA); Civil Liability Act 2002 (NSW); Wrongs Act 1958 (Vic); Civil Law (Wrongs) Act 2002 (ACT); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas); Civil Liability Act 2003 (Qld); Personal Injuries (Liability and Damages) Act 2003 (NT). 15 See Law Reform (Miscellaneous Provisions) Act 1956 (NT) Pt VII. 16 See Ipp Report ‘Review of the Law of Negligence Report’ (Commonwealth of Australia, 2 October, 2002) 26[1.8]. 17 The only difference between the two pieces of legislation is that the Civil Law (Wrongs) Act 2002 (ACT) uses of the word ‘danger’ in s 34(2)(b) and (c) instead of the word ‘peril’, as used
337
A person (the defendant) does not owe a duty of care to another person (the plaintiff ) to take care not to cause the plaintiff mental harm18 unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.19
Section 5S(2) reflects Recommendation 34(c), providing:
For the purpose of the application of this section in respect of pure mental harm, the circumstances of the case include the following:
(a) whether or not the mental harm was suffered as the result of a sudden shock; (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril; (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril; (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.20
The only difference of any note between the Ipp Panel’s recommendations and these provisions is that s 5S(2)(b) of the Civil Liability Act 2002 (WA)21 is a combination of Recommendations 34(c)(ii)22 and (iii).23 The combination of these two recommendations into one provision has effectively removed the consideration of whether the plaintiff witnessed the ‘aftermath’ of a shocking event. The Australian Capital Territory took the same approach.24
in s 5S(2)(c) of the Civil Liability Act 2002 (WA). This arguably does not change the meaning in any significant way. 18 The term ‘mental harm’ is defined in section 5Q of the Civil Liability Act 2002 (WA) to mean ‘impairment of a person’s mental condition’. The definition of this term is the same in s 32 of the Australian Capital Territory legislation. 19 Civil Liability Act 2002 (WA) s 5S(1). The equivalent in the Australian Capital Territory legislation is s 34(1) of the Civil Law (Wrongs) Act 2002 (ACT). 20 Civil Liability Act 2002 (WA) s 5S(2). The Australian Capital Territory legislation equivalent is s 34(2) of the Civil Law (Wrongs) Act 2002 (ACT). 21 Namely, ‘whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril’. 22 Namely, ‘whether the plaintiff was at the scene of shocking events, or witnessed them or their aftermath’. 23 Namely, ‘whether the plaintiff witnessed the events or their aftermath with his or her own unaided senses’. New South Wales were the first jurisdiction to adopt this approach, with the other four States and Territories who chose this approach choosing to do so for the sake of uniformity following a Ministerial meeting in November 2002: see Peter Handford, ‘Limiting Liability for Mental Harm: Back to the Future?’ (2010) 18 Tort Law Review 5, 5. 24 See Civil Law (Wrongs) Act 2002 (ACT) s 34(2)(b).
338
The Western Australia and Australian Capital Territory legislation superficially mirrors the common law position outlined in Tame; Annetts and in Gifford as it places the test of reasonable foreseeability as the overriding test of duty, informed by a number of matters considered relevant in these cases. However, this legislation is narrower than the common law and inconsistent with the approach advanced in Part II in three separate respects. The first is that the normal fortitude rule appears to be an independent requirement in s 5S(1) of the Western Australian legislation and in s 34(1) of the Australian Capital Territory legislation.25 As argued above,26 the normal fortitude rule is only consistent with corrective justice as a matter relevant to an overriding test of reasonable foreseeability which is the form of the test applied by the High Court in Tame. In the form it takes in the Western Australian and Australian Capital Territory Acts, the normal fortitude rule acts as an arbitrary limit on liability in situations where the claimant is not a person of normal fortitude but has nonetheless been wronged by the defendant.27
The second is the removal of the consideration of whether the plaintiff witnessed the ‘aftermath’ of a shocking event in s 5S(2)(b) of the Western Australian legislation and in s 34(2)(b) of the Australian Capital Territory legislation.28 By removing this consideration, the legislation seems to limit liability in time and in space to the scene of the accident in cases where the claimant cannot satisfy one of the remaining considerations. This appears to be a significant arbitrary and unprincipled contraction of the ambit of liability when compared to the common law, as it may remove the extension of liability resulting from the High Court’s decision in Jaensch v Coffey.29 By removing the consideration of whether the claimant witnessed the aftermath of the accident, it may be that the courts will be less willing to find liability in a case such as Jaensch where despite injury being reasonably foreseeable, the claimant was not at the scene of the accident and did not witness it occurring.
25 This follows Recommendation 34 of the Ipp Report, ‘Review of the Law of Negligence Report’ (Commonwealth of Australia, 2 October, 2002). 26 See chapter 7 in relation to Brennan J’s judgment in Jaensch. 27 See the discussion above at section 7.3.2. 28 This is more restrictive than Recommendation 34 of the Ipp Report, which refers to the aftermath of an event. 29 (1984) 155 CLR 549.
339
The third is the requirement in s 5S(1) of the Western Australian Act and s 34(1) of the Australian Capital Territory Act that the claimant suffer a ‘recognised psychiatric illness’ as opposed to a ‘recognisable psychiatric illness’.30 The word ‘recognised’ here appears to be a clear reference to formally recognised mental disorders either by reference to the DSM-V or the ICD-10. The difference, whilst apparently small, is anything but. Scientific understandings of psychiatric disorders are still progressing rapidly, and the requirement for a recognised psychiatric illness locks claimants into historical understandings of psychiatric disorders. Pursuant to this definition, a claimant could suffer a psychiatric condition which expert psychiatric opinion might regard as a psychiatric condition but which had not yet been formally identified, and in this case fail to satisfy the requirement of recognised psychiatric illness.31 Such an approach is clearly inconsistent with the corrective justice approach advanced in this thesis, which regards significant and lasting interferences with claimants’ right to physical and psychological integrity as wrongful.
9.3.2 New South Wales, Victorian, South Australian and Tasmanian legislation
The legislation in New South Wales, Victoria, South Australia, and Tasmania contain the arbitrary restrictions mentioned above, but also contain further arbitrary limitations on liability. Section 32(1) and (2) of the Civil Liability Act 2002 (NSW) are similar to s 5S(1) and (2) of the Western Australian legislation and s 34(1) and (2) of the Australian Capital Territory legislation. However, the New South Wales legislation contains additional limitations on liability in s 30. Applying to claims arising out of the injury or death of third parties,32 the additional restrictions on liability in s 30 restrict liability to only those in which ‘the plaintiff
30 This follows Recommendation 34 of the Ipp Report, ‘Review of the Law of Negligence Report’ (Commonwealth of Australia, 2 October, 2002). 31 For further discussion of the significance of the distinction between the legal formulae ‘recognisable psychiatric illness’ and ‘recognised psychiatric illness’, see Des Butler, ‘Gifford v Strang and the New Landscape for Landscape for Recovery for Psychiatric Injury in Australia’ (2004) 12 Torts Law Journal 1, 16; Des Butler, Damages for Psychiatric Injuries (Australian Legal Monographs, Federation Press, Sydney, 2004) 126; Peter Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (Lawbook Co, 2nd ed, 2006) 35-38; Peter Handford, ‘Psychiatric Injury – The New Era’ (2003) 11 Tort Law Review 1, 13, 23-24; Danuta Mendelson, ‘Psychiatric Injury Law in England and Australia – Drawing Closer Together?’ (2007) 15 Journal of Law and Medicine 176, 189-190. 32 The limitations in Civil Liability Act 2002 (NSW) s 30(1) apply to claims ‘arising wholly or partly from mental or nervous shock in connection with another person… being killed, injured or put in peril by the act or omission of the defendant.’
340 witnessed, at the scene, the victim being killed, injured or put in peril’,33 or in which ‘the plaintiff is a close member of the family of the victim.’34 A ‘close member of the family of a victim’ is defined in s 30(5) to mean parents,35 spouses,36 children,37 and siblings.38 The ability to appreciate risk of psychiatric injury to loved ones does not, in reality, restrict itself to the categories of loved ones outlined in the New South Wales Act. Thus, in addition to the arbitrary and unprincipled restrictions on liability contained in the Western Australian and Australian Capital Territory legislation, the New South Wales also imposes further arbitrary relationship category restrictions.
Like the New South Wales legislation, s 73 of the Wrongs Act 1958 (Vic) imposes additional limitations on liability. These are worded almost identically to those contained in the New South Wales legislation, with one difference. Whilst the New South Wales legislation denies recovery unless the plaintiff was a ‘close member of the family of the victim’, the Victorian legislation denies recovery unless the plaintiff is or was in a ‘close relationship with the victim’.39 The Victorian legislation leaves the term ‘close relationship with the victim’ undefined and open to interpretation by the courts.40 The Victorian legislation may therefore apply to family members such as aunts, uncles and cousins of the victim. It may also apply to those who are not members of the victim’s family, such as close friends, as long as sufficient closeness of the relationship can be established. The Victorian Act also narrows the category to those who might be in the same family as the victim, but who are perhaps not in a close relationship, for example, those family members who perhaps are estranged. In these circumstances, despite being able to satisfy one of the relationship categories, harm to the claimant may not be appreciable because the parties may not have been in a particularly close
33 Civil Liability Act 2002 (NSW) s 30(2)(a). 34 Civil Liability Act 2002 (NSW) s 30(2)(b). 35 Civil Liability Act 2002 (NSW) s 30(5)(a). This also includes ‘other persons with parental responsibility for the victim.’ 36 Civil Liability Act 2002 (NSW) s 30(5)(b). This also includes a ‘partner of the victim.’ ‘Spouse or partner’ is further defined in section 30(5) as ‘(a) a husband or wife’, or ‘(b) a de facto partner’, ‘but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify.’ 37 Civil Liability Act 2002 (NSW) s 30(5)(c). This also includes a ‘stepchild of the victim or any other person for whom the victim has parental responsibility.’ 38 Civil Liability Act 2002 (NSW) s 30(5)(d). This includes brothers, sisters, half-brothers, half- sisters, step-brothers and step-sisters of the victim. 39 Ibid. 40 See Des Butler, ‘Gifford v Strang and the New Landscape for Landscape for Recovery for Psychiatric Injury in Australia’ (2004) 12 Torts Law Journal 1, 18.
341 relationship. This appears to be a less arbitrary approach than the New South Wales approach. As a matter of principle, the important matter is whether the risk of harm to the claimant was appreciable at a community understandings level. The relationship between the claimant and the victim may be relevant to this question, although it is the closeness of the relationship which is important, rather than what particular category it falls within.
The South Australian legislation also contains additional limitations on liability, but unlike the additional limitation provisions in the New South Wales and Victorian legislation, the provisions in the Civil Liability Act 1936 (SA) apply to all cases of mental harm, rather than only claims arising from injury or death to a third party.41 The additional limitation provisions in the South Australian legislation also differ to the other jurisdictions in two further respects. The first is that the South Australian legislation only requires that the claimant be ‘present’ at the scene of the accident at the time of the accident, rather than that they ‘witness’ the victim being killed injured or put in peril, as required by the New South Wales and Victorian legislation.42 The second is that the South Australian legislation allows recovery where the claimant is ‘a parent, spouse, domestic partner or child of a person killed, injured or endangered in [an] accident.’43
The requirement for presence at the scene of the accident at the time of the accident is arbitrary and unprincipled, being unrelated to whether the risk of psychiatric harm to the claimant was commonly appreciable. As a matter of logic, one would ordinarily need to be at the scene of an accident at the time of the accident to directly perceive the accident itself, and, as direct perception is relevant to common understandings in cases involving injury or death to a stranger, this may in some circumstances be consistent with corrective justice. However, as it is not related to the normative connection between the parties, it is arbitrary and potentially under-inclusive in some situations, and over-inclusive in others. It is under-inclusive in situations where the claimant may directly perceive some aspect of the accident, for example the aftermath, but where it is not at the scene at the time of the accident. This requirement also risks being over-inclusive in other situations. Take for instance the hypothetical circumstance where a claimant is present at the scene of an accident at the time of the accident but for some
41 Civil Liability Act 1936 (SA) s 53(1). 42 See Civil Liability Act 1936 (SA) s 53(1)(a); cf: Civil Liability Act 2002 (NSW) s 30(2)(a), Wrongs Act 1958 (Vic) s 73(2)(a), and Civil Liability Act 2002 (Tas) s 32(2)(a). 43 Civil Liability Act 1936 (SA) s 53(1)(b).
342 reason does not see or hear the victim being injured or killed. Where the claimant is not in a close and loving relationship with the victim, the risk of psychiatric injury to the claimant perhaps may not be appreciable at a community understandings level, depending on the circumstances. Notwithstanding this, the claimant in such a situation may well be able to satisfy the South Australian legislation.
The second respect in which additional limitation provisions in the South Australian Act differ from the other jurisdictions is that the South Australian legislation allows recovery where the claimant is ‘a parent, spouse, domestic partner or child of a person killed, injured or endangered in [an] accident.’44 The legislation separately defines each of these relationships; ‘child’ is defined to include, ‘son, daughter, grandson, granddaughter, step-son and step-daughter’; ‘domestic partner’ is defined to mean ‘a person declared under the Family Relationships Act 1975 to have been a domestic partner on the day on which the cause of action arose’; ‘parent’ is defined to include ‘father, mother, grandfather, grandmother, step-father and step-mother’; and ‘spouse’ to mean ‘a person who was legally married to another on the day on which the cause of action arose’.45
The range of relationships in the South Australian legislation is narrower than the New South Wales legislation. The South Australian Act focusses on a narrow interpretation of the nuclear family, barring claims of siblings, be they natural or step, as well as aunts, uncles and cousins. This artificial narrowing of the range of appreciable harm is inconsistent with corrective justice. It is not difficult to conceive of loving relationships beyond those listed – for example, foster children and foster parents, or relatives related through marriage or other close bonds – which would be sufficient when considering mental disorders caused by loss of a loved one.46
The Civil Liability Act 2002 (Tas) also contains additional limitations on recovery similar to those contained in the New South Wales and Victorian legislation.47 However, whilst the
44 Civil Liability Act 1936 (SA) s 53(1)(b). 45 See Civil Liability Act 1936 (SA) s 3. These additional limitations were both in issue in King v Philcox (2015) 255 CLR 304, discussed below at 10.4.2. 46 The decision in Alcock demonstrated a similar narrow conception of the sort of relationships which were considered sufficient in the eyes of the law to justify liability, with one of the claimants in that case who suffered psychiatric injury due to the death of his brother-in-law being denied liability because he could not satisfy sufficient proximity of relationship: see Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907. 47 Civil Liability Act 2002 (Tas) s 32(2).
343
Tasmanian legislation contemplates recovery when the claimant witnessed the immediate aftermath of an accident,48 on the whole, the ambit of liability may be less narrow than the legislation in New South Wales, Victoria, and South Australia. This is because the Tasmanian Act includes fewer ‘circumstances of the case’ to be considered in relation to the test of reasonable foresight than the other Acts, only including ‘whether or not the mental harm was suffered as the result of a sudden shock’49 and ‘whether or not there was a pre-existing relationship between the plaintiff and the defendant’.50
Overall, the introduction of the civil liability legislation has resulted in a number of arbitrary limits on liability being introduced which include physical, temporal, and relational requirements. These limitations are likely to lead to unprincipled distinctions being drawn between claimants which have little to do with the merits of the cases which are considered by courts, which is likely to bring the law into disrepute. Furthermore, the lack of consistency between jurisdictions is an issue with this legislation which itself risks bringing the law into disrepute, introducing further arbitrary distinctions between claimants depending on which jurisdiction they find themselves in when suffering psychiatric injury.
9.4 Judicial consideration of the civil liability legislation
Whilst it might have initially been thought that the there was no role to be played by the common law in those jurisdictions which have enacted civil liability legislation, this does not appear to be the case. There have since been two cases considered by the High Court that have held that there is still a role for the common law in the jurisdictions from which these cases emanated. These are Wicks v State Rail Authority,51 which arose from New South Wales, and King v Philcox,52 a South Australian case. King also demonstrated the regrettable effect on claimants of the arbitrary limitations on recovery in the South Australian legislation.
48 See Civil Liability Act 2002 (Tas) s 32(2)(a); cf: Civil Liability Act 2002 (NSW) s 30(2)(a), and Wrongs Act 1958 (Vic) s 73(2)(a). 49 Civil Liability Act 2002 (Tas) s 34(2)(a). 50 Civil Liability Act 2002 (Tas) s 34(2)(b). 51 (2010) 241 CLR 60. 52 (2015) 255 CLR 304.
344
9.4.1 Wicks v State Rail Authority (2010)53
Wicks involved claims by two New South Wales policemen who, after a train derailment in New South Wales in 2003, attended the accident scene to provide assistance. As a result of the accident, seven people were killed and many others seriously injured. The claimants stayed at the scene for many hours assisting with the rescue, being exposed in the process to the horrific injuries and deaths of many victims.54 In light of the discussion above regarding prevailing understandings of the causes of mental disorders with respect to witnessing scenes of horror,55 it seems reasonable to argue that the risk of psychiatric injury to the claimants in the circumstances was commonly appreciable at the time. As such, a finding in the claimants’ favour was the just outcome.
Wicks is significant because it provides guidance about the proper approach to take in relation to the duty of care under the Civil Liability Act 2002 (NSW) relating to pure mental harm, and therefore to civil liability legislation in other jurisdictions using similar wording.56 It was held that the wording of ss 32 and 30(2), being cast in negative terms, did not positively identify when a duty of care would be found to exist.57 As such, the legislation would only be applicable once a duty of care at common law had been found to exist.58 Only once that had been done could it be determined whether liability was limited either by s 32, or by the additional limitations in s 30.59
Wicks further demonstrated how the words ‘being killed, injured or put in peril’ should be interpreted within the context of the additional limitations on liability provided in s 30 of the
53 (2010) 241 CLR 60 (‘Wicks’). 54 Wicks and Sheehan pleaded that their injuries consisted of ‘psychological and psychiatric injuries, post-traumatic stress syndrome, nervous shock and major depressive disorder’: see Wicks v State Rail Authority (2010) 241 CLR 60, 67[6]. 55 See section 7.2. 56 See Peter Handford, ‘Liability for Mental Harm: The High Court of Australia and the Civil Liability Acts’ (2010) 18 Tort Law Review 129, 131. 57 Wicks v State Rail Authority (2010) 241 CLR 60, 71[22]. 58 Pursuant to the decision in Tame (2002) 211 CLR 317: see Wicks v State Rail Authority (2010) 241 CLR 60, 71[24]. 59 Ibid. Handford considered this the most important aspect of the High Court’s decision in Wicks: see Peter Handford, ‘Liability for Mental Harm: The High Court of Australia and the Civil Liability Acts’ (2010) 18 Tort Law Review 129, 131. However, as it was not necessary for the High Court to decide the duty of care issue, the High Court’s comments in relation to this issue were strictly obiter dicta.
345
New South Wales Act, providing guidance to the interpretation of provisions using similar wording in the Victorian, Tasmanian and South Australian legislation.60 The High Court held that the phrase should be interpreted according to its common meaning; that is, ‘a person is put in peril when put at risk; the person remains in peril (is ‘being put in peril’) until the person ceases to be at risk.’61 As such, it included not only an accident causing event itself, but also events which occurred after that initial event, during which the perils to which the victims were exposed were continuing.62 The High Court made the inference that some of the accident victims suffered further physical and psychiatric injuries during the process of being rescued, and that therefore, the claimants likely witnessed victims of the accident ‘being injured’. As such, the claimants were able to satisfy s 30.63
9.4.2 King v Philcox (2015)64
Whilst Wicks showed that a meritorious claim might still succeed notwithstanding the arbitrary restrictions on liability in the legislation, King demonstrates that this will not always be the case. King was a South Australian case in which the claimant suffered psychiatric injury as a result of the death of his brother in a car accident. The claimant’s brother was a passenger in a car being driven by the defendant, and was killed when the vehicle was involved in an accident with another vehicle. The claimant was informed of the accident a few hours afterwards, and he realised he had seen the vehicle in which his brother had died, having driven past the scene of the accident a number of times earlier in the day. This brought with it the realisation that his brother was still trapped inside the car dying when he drove past it. A few hours after the
60 See Peter Handford, ‘Liability for Mental Harm: The High Court of Australia and the Civil Liability Acts’ (2010) 18 Tort Law Review 129, 130. 61 See Wicks v State Rail Authority (2010) 241 CLR 60, 77[50]. The evidence was that whilst some victims had died as a result of the accident, others had survived, and that upon reaching the area of the accident, the claimants participated in the rescue of those survivors: 77[52]. 62 See Wicks v State Rail Authority (2010) 241 CLR 60, 76[44]-[45]. One of the arguments advanced by the State Rail Authority in this case was that the word ‘being’ required that the plaintiff witness an unfolding event that resulted in the death, injury of peril of another person. The State Rail Authority argued that the claimants only witnessed people who were no longer being killed, injured or put in peril, and therefore, that this was not sufficient to satisfy section 30(2)(a) of the Civil Liability Act 2002 (NSW). 63 Wicks v State Rail Authority (2010) 241 CLR, 60, 75[40], 76[46]-[48]. 64 (2015) 255 CLR 304 (‘King’).
346 accident, the claimant went to the scene of the accident and spent, by his own estimation, a few hours there.65
In light of the discussion above in relation to Annetts and Gifford regarding prevailing understandings,66 it may be argued that the risk of psychiatric injury as a result of the unexpected and distressing death of a loved one was likely commonly appreciable at the time of the accident. If this argument is accepted, the denial of the claimant’s action would not have been just. Indeed, it was recognised by the High Court that the claimant was owed a duty at common law and pursuant to s 33 of the South Australian legislation.67 Implicit in this decision was the view that sibling relationships would be sufficient, in principle, to support a finding of duty. However, the High Court found against the claimant on the grounds that he could not satisfy the additional limitations on liability in the South Australian legislation.68
The outcome of this case turned on the interpretation of the additional limitations provisions in s 53(1)(a) of the South Australian Act. In particular, in addition to having to satisfy s 33, the provisions in s 53 required the claimant to have been ‘physically injured in the accident or … present at the scene of the accident when the accident occurred’,69 or to be ‘a parent, spouse, domestic partner or child of the person killed, injured or endangered in the accident’.70 As the relationship of sibling was not included in the list of relationships in s 53(1)(b), and the claimant was not physically injured in the accident, he was required to establish that he was present at the scene of the accident when the accident occurred for the purposes of s 53(1)(a). This he was not able to do.
The claimant argued that his actions in driving past the accident site a number of times and then spending a few hours there later in the evening after the accident satisfied s 53(1)(a). Key to determining this was whether the definition of the term ‘accident’ in s 3 of the South
65 As a result, the claimant suffered a recognisable psychiatric illness in the form of ‘a major depressive disorder with significant anxiety-related components of a post-trauma stress reaction’: King v Philcox (2015) 255 CLR 304, 331[63] (Nettle J). 66 See sections 8.3 and 8.4. 67 King v Philcox (2015) 255 CLR 304, 322[29] (French CJ, Keifel J and Gagelar J), 323[32] (Keane J), 340[91] (Nettle J). 68 Ibid 319[21] (French CJ, Kiefel and Gageler JJ), 323-4[32]-[34] (Keane J), 346[12]-[14] (Nettle J). 69 Civil Liability Act 1936 (SA) s 53(1)(a). 70 Civil Liability Act 1936 (SA) s 53(1)(b).
347
Australian legislation – meaning ‘an incident out of which personal injury arises and includes a motor accident’ – was limited in space and time to the immediate point of impact in this case between the vehicles involved, or whether it included the common law’s extension of liability in Jaensch v Coffey to include the immediate aftermath. If the narrower meaning of the term ‘accident’ was preferred, the claimant’s actions could not satisfy s 53(1)(a).
The High Court adopted the narrower interpretation and denied liability.71 In coming to this decision, French CJ, Kiefel and Gagelar JJ considered the legislative history of the Civil Liability Act 1936 (SA), in particular the precursor to s 53, s 35A(1)(c) of the Wrongs Act 1936 (SA). Their Honours remarked that this history indicated that 35A(1)(c) was inserted into the Act in 198672 following the South Australian Supreme Court’s decision in Coffey v Jaensch73 in order to limit further expansion of the ambit of liability.74 Nettle J was similarly of the view that a motor accident occurred at the point of collision between the vehicles concerned, and did not include anything after that.75 Keane J ultimately found that the claimant could not satisfy s 53(1)(a) because he had not been ‘directly exposed to the sights and sounds of the accident’.76
71 Ibid 319[21] (French CJ, Kiefel and Gageler JJ), 323-4[32]-[34] (Keane J), 146[12]-[14] (Nettle J). In support of this conclusion, their Honours referred to the judgment of the New South Wales Court of Appeal in Hoinville-Wiggins v Connelly [1999] NSWCA 263 in which case the court considered the meaning of the same words in s 77(a)(ii) of the Motor Accidents Act 1988 (NSW) and found that coming to accident after it had occurred was not sufficient: ibid [23] (French CJ, Kiefel and Gageler JJ), [34]-[36] (Keane J). Their Honours further noted the comments of Miles CJ in Spence v Biscotti [1999] ACTSC 70 in considering the meaning of these words. Miles CJ stated that these words required the claimant to satisfy ‘a spatial and temporal test, present at that place, the scene, when the event, the accident, occurred’: ibid [31] (French CJ, Kiefel and Gageler JJ), [34]-[36] (Keane J). 72 By the Wrongs Act Amendment Act 1986 (SA). 73 (1983) 33 SASR 254. 74 This was clear from a reading of the text of the legislation, as well as from considering the second reading speech of the South Australian Attorney-General in introducing the bill into Parliament. In his second reading speech, the Attorney-General noted that the purpose of section 35A(1)(c) was ‘to prevent and further expansion of this head of damage’: South Australian Hansard, Legislative Council, 27 November 1986, page 2410; cited in King v Philcox (2015) 255 CLR 304, 316-7[16] (French CJ, Kiefel and Gageler JJ). 75 Ibid 346[112]. Nettle J was of the view that the common law distinction between the accident and its immediate aftermath pointed to the interpretation that if s 3 was intended to include the immediate aftermath, it would have been made explicit in the legislation: 346[14]. 76 Ibid 330[52]. His Honour did not regard spatial limits on recovery as arbitrary, considering the requirement of presence as ‘an intelligible legislative choice to limit the extent of liability’, this being ‘an informed and rational response to issues thrown up by the case law as to where the law should best draw the line to limit indeterminate liability and unreasonable or disproportionate burdens upon defendants’: ibid 328[49].
348
A case such as King demonstrates well the unprincipled and arbitrary nature of the South Australian Act and of the civil liability legislation in general. The unfortunate aspect of King so far as the claimant was concerned is that his claim may well have succeeded at common law. For example, in another South Australian case decided according to the common law prior to the enactment of the civil liability legislation in this jurisdiction, the parents and siblings of 14 year old who died as a result of the defendant hospital’s negligent treatment were found to be owed a duty of care.77 Furthermore, the claim in King might also have succeeded had the accident occurred in some of the other jurisdictions in which the relevant provisions were partly consistent with the common law, such as Western Australia or the Australian Capital Territory. Moreover, it could also have succeeded if brought in Victoria, with the legislation allowing claims by claimants who are a ‘close member of the family of the victim’,78 a term which was left undefined but could arguably include siblings. It also might have succeeded if brought in New South Wales, as the categories of relationship in the New South Wales legislation include siblings.79
9.5 Conclusion
Ultimately, the passing of the civil liability legislation has resulted in the law with respect to claims for mental harm being narrower than the common law in a number of significant respects. All of the legislation considered makes the normal fortitude rule an independent requirement in relation to the duty of care test, remove the immediate aftermath extension of the direct perception rule, and require a recognised rather than recognisable psychiatric injury as the requisite damage. The New South Wales, Victorian, South Australian, and Tasmanian Acts also introduce further arbitrary limits on liability which include physical, temporal, and relational requirements.
The introduction of arbitrary and unprincipled limitations on liability, inconsistent with the corrective justice approach advanced in Part II, threatens to bring the law into disrepute. Rather than being determined according to whether the defendant was morally culpable for causing the claimant’s psychiatric harm – which, as we have seen, was largely the case pursuant to common law – liability instead may be determined pursuant to the legislation in many instances
77 See Kemp v Lyell McEwin Health Service (2006) SASR 192, 200[17] (Debelle J). 78 In s 73 of the Wrongs Act 1958 (Vic). 79 In s 30(5)(d) of the Civil Liability Act 2002 (NSW).
349 according to considerations which are arbitrary and entirely unrelated to the question of what is just between the parties. Also of significant concern in relation to the civil liability legislation is that there are substantial inconsistencies between jurisdictions as to the form and extent of the limitations on liability imposed, which is an outcome the Ipp Panel indicated it was trying to avoid. The High Court’s decision in King is an unfortunate demonstration of both points.
350
PART IV CONCLUSION
Chapter 10: Implications
The analysis in Part III paints a revealing picture of the development of the legal principles relevant to the ambit of liability in cases of negligently inflicted psychiatric injury. In considering the first primary hypothesis in Part II of this thesis by applying and extending Beever’s corrective justice theory of negligence to cases of negligently inflicted psychiatric injury, it was argued that this theory is able to suggest an approach to the duty of care and remoteness tests in this difficult area of law which is principled on the one hand, and, being able to respond to fears of an unfair burden on defendants, indeterminate liability, and an opening of the floodgates of litigation, pragmatic on the other. This claim might have been dismissed on the basis that the suggested approach does not reflect the law ‘as it really exists’, as this is a challenge to orthodox understandings that principle and real-world manageability are fundamentally inconsistent goals.1
Chapters 5-8 in Part III have addressed such potential criticisms. These chapters have focussed on the second primary hypothesis of this thesis, showing that the corrective justice approach based on common understandings advanced in Part II is consistent with many of the most significant aspects of the common law in this area. Most significantly, this approach is consistent with the current leading common law cases. These chapters have shown that at every stage where liability has been expanded in one of these leading cases,2 it has arguably been principled and just. On each such occasion, liability has been widened as the result of the relaxation of a previous rule as a result of it being found to be arbitrarily restrictive.3
1 As outlined in section 1.4, the use of the term pragmatic in this thesis is distinguished from the use of this term in relation to pragmatism in the philosophical tradition. 2 In Dulieu, Hambrook (chapter 5), Pusey, Jaensch (chapter 7), Annetts, and Gifford (chapter 8). 3 In Dulieu (relevance of impact to the question of remoteness attributed to the decision in Coultas), Hambrook (Kennedy J’s limitation in Dulieu), Pusey and Jaensch (relevance of whether the claimant perceived the exact moment of the accident considered to be important by the majority in Chester), Annetts and Gifford (duty test involved reasonable foreseeability limited by proximity as found by Gibbs CJ and Deane J in Jaensch, requirement for normal fortitude and sudden shock as indicated by Brennan J in Jaensch, and relevance of whether claimant perceived moment of death of a child to the test of reasonable foreseeability, found by the majority in Chester).
351
As a result of the findings in chapters 5-8, nearly 115 years of continuous expansion of the law can be understood in normative terms; that is, as representing the legal recognition of an expanding right to physical and psychological integrity and correlative duty to take care, following growing community understandings and expectations relating to the risk of onset of mental disorders as a result of exposure to specific types of trauma. Over the course of these chapters it has been shown that each significant doctrinal development can be understood as the relaxation of a previously existing arbitrary rule in order to achieve justice between the parties. In each relevant instance, it is arguable that the underlying reason the court relaxed a previously existing rule has been because community understandings had progressed to such an extent that the rule in question no longer represented the point at which the norm against injuring others was set as a matter of interpersonal morality.
Significantly, the current common law approach in Australia, which still applies in Queensland and the Northern Territory, has all but completely removed any arbitrary and unprincipled restrictions on liability, resulting in the law being almost entirely consistent with the corrective justice approach advanced in this thesis (the only remaining issue is the relevance of the sudden shock rule to the overriding test of reasonable foreseeability which according to the approach advanced in this thesis ought to be abandoned altogether). Importantly, chapters 5-8 have also shown that the current common law approach, when interpreted from the perspective of the approach advanced in Part II, is both principled and at the same time not unlimited, with the norm against injuring being set by community understandings and expectations of the risk of psychiatric injury as a result of exposure to specific types of trauma.
The touchstone of morality identified in this thesis amounts to a distinct approach to considering the ambit of liability via the duty of care. This approach does not result in open and unrestricted liability because mere predictability is an unjust imposition on the rights of defendants. It is also not an arbitrarily restricted approach which results in an unjust imposition on the rights of claimants. Rather, this approach sets the ambit of liability in accordance with principle, and as such, sets restrictions on liability which are themselves principled. Accordingly, this approach not only has the advantage of relative certainty in setting the point at which the law recognises the norm against injuring, but also has the significant benefit of flexibility in being able to adapt to and reflect changes to the norm in response to changes in community understandings and expectations. This means that unlike the great majority of rules
352 which have been developed in this area of law, the common understandings test will not become dated and arbitrarily restrict liability. As such, this approach demonstrates that a choice does not need to be made between a principled but unlimited and unworkable approach on the one hand, and a clear and predictable but arbitrary and unprincipled approach, on the other.
There are at least two further ramifications which flow from these findings. First, if it is accepted that the approach advanced in Part II of this thesis provides a suitable basis for understanding the law as it has developed, it also provides an appropriate perspective from which to conceive of and critique the common law as it might develop in the future. And second, the approach advanced in this thesis also provides an apposite perspective from which to consider and critique the civil liability legislation.
Chapter 9 in Part III undertook the latter task, showing that the civil liability legislation has unfortunately introduced a number of arbitrary and unprincipled physical, temporal, and relational, restrictions on liability. Moreover, it was also demonstrated that the legislation is not consistent from jurisdiction to jurisdiction, providing a further element of unpredictability and capriciousness in the law. The aim of the civil liability legislation was to keep liability within manageable limits. However, the enactment of the legislation is particularly regrettable considering that it was passed at a point in time when the common law in Australia had, over the course of the previous 115 years or so, all but completely removed each arbitrary and unprincipled limitation on liability through the painstaking and intricate reasoning of a large number of judges over that time.
This thesis has extended Beever’s corrective justice theory, applying this perspective to the law relating to negligently inflicted psychiatric injury. An approach based on common understandings and expectations has been proposed as an adjunct to the test of reasonable foreseeability in relation to the issues of duty and remoteness which determines the extent to which a moral connection can be made between the defendant’s negligence and the claimant and their resulting psychiatric injury. It has been argued that this approach is principled on the one hand, and clear, predictable, and able to respond to unfair burden, indeterminacy, and floodgates fears, on the other. As such, this test challenges orthodox understandings that the goals of principle and pragmatism are fundamentally inconsistent. Analysing the growth in the
353 ambit of liability since the case of Dulieu v White & Sons4 up to the current leading common law cases of Tame v New South Wales; Annetts v Australian Stations Pty Ltd,5 Gifford v Strang Patrick Stevedoring Pty Ltd,6 this thesis has demonstrated that the corrective justice approach advanced in this thesis provides a suitable basis for understanding and explaining the common law in this area. Not only is this approach consistent with the current common law, but also represents an improvement on the current law as it provides appropriate guidance for future applications of the law in novel situations.
4 [1900] All ER Rep 353. 5 (2002) 211 CLR 317. 6 (2003) 214 CLR 269.
354
Bibliography
A Articles/Books/Reports
Abercrombie, J, Diseases of the Brain and Spinal Cord (Longmans, 4th ed, 1828)
Abraham, ‘Notes on the Psycho-Analytical Investigation and Treatment of Manicdepressive Insanity and Allied Conditions’ in Selected Papers on Psycho-Analysis (Hogarth Press, 1911)
Abraham, ‘A Short Study of the Development of the Libido, viewed in the Light of Mental Disorders’ in Selected Papers on Psycho-Analysis (Hogarth Press, 1924)
Adams, Nehemiah, ‘Agnes and the Key of Her Little Coffin’ (SK Whipple and Co, 1857)
Adler, Alexandra, ‘Two Different Types of Post-Traumatic Neuroses’ (1945) 102(2) American Journal of Psychiatry 237
Agee, James, A Death in the Family (Vintage, 1957)
Aird, Catherine, ‘Dickens and Railway Spine Neurosis’ (2012) 108 The Dickensian 25
Aldrich, Mark, ‘Train Wrecks to Typhoid Fever: The Development of Railroad Medicine Organizations, 1850 to World War I’ (2001) 75(2) Bulletin of the History of Medicine 254
Allcock, Martin, ‘Corrective Justice and Kantian Right as a Mechanism to Reconcile Substantially Clashing Interests in Cases of Negligently Inflicted Psychiatric Injury’ (2015) 40 Australian Journal of Legal Philosophy 17
Allcock, Martin, ‘In Defence of Weinrib’s and Beever’s Interpretive Theories of Negligence’ (2017) 24 Torts Law Journal 125
Allcock, Martin, ‘Pure Psychiatric Injury Pursuant to the Civil Liability Legislation: An(other) Economic Perspective’ (2018) 25 Journal of Law and Medicine 814
Anonymous, ‘Compensation for Railway Injuries’ (1867) The Lancet 799
355
Anonymous, ‘Medical News’ (1867) The Lancet 806
Anonymous, ‘Actions Against Railway Companies’ (1867) 43 The Law Times 118
Anthony, EJ, and CJ Koupernik (eds), The Child in His Family: International Yearbook of Child Psychiatry and Allied Professions (Wiley, 1970)
Aristotle, Ethica Nicomachea, transl David Ross, The Nicomachean Ethics of Aristotle (Oxford University Press, 1925)
Arvind, TT, ‘Beyond “Right” and “Duty”: Lundstedt’s Theory of Obligations’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012)
Bailey, P, and F Kennedy, ‘Injuries and Disorders of the Nervous System Following Railway and Allied Accidents’, in F Peterson, WS Haines and RW Webster (eds), Legal Medicine and Toxicology (WB Saunders Co, vol 1, 2nd ed, 1923)
Barraclough, Jennifer, and David Gill, Hughes’ Outline of Modern Psychiatry (John Wiley & Sons, 4th ed, 1996)
Barry, Lisa C, Stanislav V Kasl and Holly G Prigerson, ‘Psychiatric Disorders Among Bereaved Persons: The Role of Perceived Circumstances of Death and Preparedness for Death’ (2002) 10(4) American Journal of Geriatric Psychiatry 447
Barthes, Roland, The Mourning Diary (Hill and Wang, 2010 (Eng transl.))
Bartrip, Peter WJ, and PT Fenn, ‘The Measurement of Safety: Factory Accident Statistics in Victorian and Edwardian Britain’ (1990) 63(150) Historical Research 58
Baum Levenbook, Barbara, ‘Dworkin's Theoretical Disagreement Argument’ (2015) 10(1) Philosophy Compass 1
Beever, Allan, Rediscovering the Law of Negligence (Hart Publishing, 2007)
Beever, Allan, Forgotten Justice (Oxford University Press, 2013)
Beever, Allan, A Theory of Tort Liability (Hart Publishing, 2016)
356
Beever, Alan, ‘What Does Tort Law Protect?’ (forthcoming) Singapore Journal of Legal Studies
Beever, Allan, Kant’s Doctrine of Private Law (forthcoming)
Beever, Allan, and Charles Rickett, ‘Interpretive Legal Theory and the Academic Lawyer’, (2005) 68(2) Modern Law Review 320
Bell, Peter, ‘The Bell Tolls: Toward Full Tort recovery For Psychic Injury’ (1984) 36(3) University of Florida Law Review 333
Bender, Leslie, ‘An Overview of Feminist Torts Scholarship’ (1993) 78 Cornell Law Review 575
Benson, Peter, ‘The Basis of Corrective Justice and its Relation to Distributive Justice’ (1992) 77 Iowa Law Review 515
Beaumont, PB, ‘An Analysis of the Problem of Industrial Accidents in Britain’ (1980) 1(1) International Journal of Manpower 28
Bevan, T, Negligence in Law (Stevens and Haynes, 2nd ed, 1895)
Birmes, Philippe, Leah Hatton, Alain Brunet, and Laurent Schmitt, ‘Early Historical Literature for Post-Traumatic Symptomatology’ (2003) 19 Stress and Health 17
Birtchnell, John, ‘Early Parental Death and Mental Illness’ (1970) 116 British Journal of Psychiatry 281
Birtchnell, John, ‘Depression in Relation to Early and Recent Parent Death’ (1970) 116 British Journal of Psychiatry 299
Bix, Brian, Jurisprudence: Theory and Context (Sweet & Maxwell, 3rd ed, 2003)
Bloch, Sidney, and Bruce Singh, Foundations of Clinical Psychiatry (Melbourne University Press, 3rd ed, 2007)
Boast, Will, Epilogue: A Memoir (Liveright, 2014)
357
Bogacz, Ted, ‘War Neurosis and Cultural Change in England, 1914-22: The Work of the War Office Committee of Enquiry into Shell-Shock’ (1989) 24 Journal of Contemporary History 227
Boltz, Oswald H, ‘Trend Situations in Manic-Depressive Psychoses and Their Interpretation’ (1934) 8(1) Psychiatric Quarterly 111
Bourke, Joanna, ‘Effeminacy, Ethnicity and the End of Trauma: The Sufferings of ‘Shell- Shocked’ Men in Great Britain and Ireland, 1914-39’ (2000, Special Issue: Shell- Shock) 35(1) Journal of Contemporary History 57
Bourne and Russo, Psychology, Behaviour in Context (WW Norton, 1998)
Boring, Edward G, and Marjorie van de Water, Psychology for the Fighting Man Prepared for the Fighting Man Himself (Washington DC, 1943)
Bowlby, J, ‘Grief and Mourning in Infancy and Early Childhood’ (1960) 15 Psychoanalytic Study of the Child 9
Bowlby, J, ‘Childhood Mourning and its Implications for Psychiatry’ (1961) 118 American Journal of Psychiatry 481
Bowlby, J, and CM Parkes, ‘Separation and Loss Within in Family’, in EJ Anthony and CJ Koupernik (eds), The Child in His Family: International Yearbook of Child Psychiatry and Allied Professions (Wiley, 1970)
Boyce, Philip, Gordon Parker, Bryanne Barnett, Margaret Cooney and Fiona Smith, ‘Personality as a Vulnerability Factor to Depression’ (1991) 159 British Journal of Psychiatry 106
Boyer, A, Maladies Chirurgicales (Migneret, Cinquieme ed, 1814)
Brencher, George, ‘Formalism, Positivism, and Natural Law Theory: Will the Real Ernest Weinrib Please Come Forward?’ (1992) 42 University of Toronto Law Journal 318
Breslau, Naomi, Ronald C Kessler, Howard D Chilcoat, Lonni R Schultz, Glenn C Davis and Patricia Andreski, ‘Trauma and Posttraumatic Stress Disorder in the Community:
358
The 1996 Detroit Area Survey of Trauma’ (1998) 55 Archives of General Psychiatry 626
Brodie, B, ‘Injuries to the Spinal Cord’ (1837) 20 Medico-Chirurgical Transactions 118
Brown, EM, ‘Regulating Damage Claims for Emotional Injuries Before the First World War’ (1990) 8 Behavioural Sciences and the Law 421
Brown, G, and T Harris, Social Origins of Depression (Tavistock Press, 1978)
Brown, G, and T Harris, Depression, in G Brown and T Harris, Life Events and Illness (Guildford Press, 1989)
Brown, G, L Harris, and J Copeland, ‘Depression and Loss’ (1977) 130 British Journal of Psychiatry 1
Brown, Russell, Rediscovering the Law of Negligence (Book Review) (2008) 46(1) Alberta Law Review 235
Bruce, ML, K Kim, Leaf PJ and S Jacobs, ‘Depressive Episodes and Dysphoria Resulting from Conjugal Bereavement in a Prospective Community Sample’ (1990) 147 American Journal of Psychiatry 608
Burdette-Finn, Penelope, Evaluation of a Model for Prevention of Maladjustment in Young Widows (PhD Thesis, Graduate School of Loyola University of Chicago, 1979)
Butler, Des, ‘Mass Media Liability for Nervous Shock: A Novel Test for Proximity’ (1995) 3 Torts Law Journal 1
Butler, Des, ‘Proximity as a Determinant of Duty: The Nervous Shock Litmus Test’ (1995) 21(2) Monash University Law Review 159
Butler, Des, ‘Proximity as a Determinant of Duty: The Nervous Shock Litmus Test’ (1995) 21(2) Monash University Law Review 159
Butler, Des, An Evaluation of Judicial Approaches to Determining Tortious Liability in Negligence for Psychiatric Injury Independent of Physical Injury in Australia and England (PhD thesis, Queensland University of Technology, 1996)
359
Butler, Des, ‘Nervous Shock at Common Law and Third Party Communications: Are Australian Nervous Shock Statutes at Risk of Being Outflanked?’ (1996) 4(2) Torts Law Journal 120
Butler, Des, ‘Managing Liability for Bystander Psychiatric Injury in a Post-Hill v Van Erp Environment’ (1997) 13 Queensland University of Technology Law Journal 152
Butler, Des, ‘Susceptibilities to Nervous Shock: Dispensing with the Mythical ‘Normal Person’’ (1997) 1 Macarthur Law Review 107
Butler, Des, ‘A “Kind of Damage”: Removing the “Shock” From “Nervous Shock”’ (1997) 5 Torts Law Journal 255
Butler, Des, ‘Nervous Shock in Australia and England: A Growing Divide?’ (2001) 22 The Queensland Lawyer 94
Butler, Des, ‘Voyages in Uncertain Seas With Dated Maps’ (2001) 9 Torts Law Journal 1,
Butler, Des, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury Resulting from Negligence’ (2002) 10 Torts Law Journal 1
Butler, Des, ‘Gifford v Strang and the New Landscape for Landscape for Recovery for Psychiatric Injury in Australia’ (2004) 12(2) Torts Law Journal 108
Butler, Des, Damages for Psychiatric Injuries (Australian Legal Monographs, Federation Press, Sydney, 2004)
Butler, Des, ‘A Comparison of the Adoption of the Ipp Report Recommendations and Other Personal Injuries Liability Reforms’ (2005) 13 Torts Law Journal 203
Butler, Des, and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5th ed, 2015)
Byard, Roger W, Sudden Death in the Young (Cambridge University Press, 2010)
Byrne, GJA, and B Raphael, ‘The Psychological Symptoms of Conjugal Bereavement in Elderly Men Over the First 13 Months’ (1997) 12 International Journal of Geriatric Psychiatry 241
360
Calabresi, Guido, ‘Some Thoughts on Risk Distribution and the Law of Torts’ (1961) 70 Yale Law Journal 499
Calabresi, Guido, ‘The Decision for Accidents: An Approach to Nonfault Allocation of Costs’ (1965) 78(4) Harvard Law Review 713
Calabresi, Guido, ‘Fault, Accidents and the Wonderful World of Blum and Kalven’ (1965) 75 Yale Law Journal 216
Calabresi, Guido, ‘Does the Fault System Optimally Control Primary Accident Costs?’ (1968) 33 Law and Contemporary Problems 429
Calabresi, Guido, The Costs of Accidents: A Legal and Economic Analysis (Yale University Press, 1970)
Cali, Basak, ‘On Interpretivism and International Law’ (2009) 20(3) European Journal of International Law 805
Cane, Peter, ‘Corrective Justice and Correlativity in Private Law’ (1996) 16 Oxford Journal of Legal Studies 471
Cane, Peter, ‘Distributive Justice and Tort Law’ (2001) New Zealand Law Review 401
Cane, Peter, ‘Another Failed Sterilization’ (2004) 120 Law Quarterly Review 189
Cane, Peter, ‘The Anatomy of Private Law Theory: A 25th Anniversary Essay’ (2005) 25 Oxford Journal of Legal Studies 203
Cane, Peter, ‘Rights in Private Law’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012)
Cannon, WB, Bodily Changes in Pain, Hunger, Fear and Rage: An Account of Recent researches into the Function of Emotional Excitement (D Appleton and Co, 2nd ed, 1929)
Caplan, Eric Michael, ‘Trains, Brains, and Sprains: Railway Spine and the Origins of Psychoneuroses’ (1995) 69(3) Bulletin of the History of Medicine 387
Carol Oates, Joyce, A Widow’s Story: A Memoir (Harper Collins, 2007)
361
Carpenter, RHS, Neurophysiology (Arnold, 4th ed, 2003)
Catalano, Amy J, A Global History of Child Death (Peter Land AG)
Chamallas, Martha, ‘Removing Emotional Harm from the Core of Tort Law’ (2001) 54 Vanderbilt Law Review 751
Chamallas, Martha, and Linda Kerber, ‘Women, Mothers and the Law of Fright: A History’ (1990) 88 Michigan Law Review 814
Chan, Emily, and Jordan Berlin, ‘Biliary Tract Cancers: Understudied and Poorly Understood’ (2015) Journal of Clinical Oncology 1
Chandler, FG, Memories of August 1917. Extract From a Doctor’s Diary, London Hospital Gazette (London War Memorial, 4, 1918)
Charcot, JM, Clinical Lectures on Diseases of the Nervous System Delivered at the Infirmary of la Salpêtrière (New Sydenham Society, London, 1889)
Charcot, JM, Clinical Lectures on Diseases of the Nervous System: Vol II (New Sydenham Society, 1889)
Clayton, PJ, ‘Bereavement and Depression’ (1990) 51 Journal of Clinical Psychiatry 34
Clayton, PJ, L Desmarais, and G Winokur, A Study of Normal Bereavement’ (1968) 125 American Journal of Psychiatry 168
Cohen, Marilyn, ‘Workmen’s Compensation Awards for Psychoneurotic Reactions’ (1961) 70(7) Yale Law Journal 1129
Coleman, Jules, ‘Justice and Reciprocity in Tort Theory’ (1975) 14 Western Ontario Law Review 105
Coleman, Jules, ‘Corrective Justice and Wrongful Gain’ (1982) 11 Journal of Legal Studies 421
Coleman, Jules, Risks and Wrongs (Cambridge University Press, 1992)
362
Coleman, Jules, ‘The Mixed Conception of Corrective Justice’ (1992) 77 Iowa Law Review 427
Coleman, Jules, ‘The Practice of Corrective Justice’, in David Owen (ed), Philosophical Foundations of Tort Law (Clarenson, 1995)
Coleman, Jules, ‘Doing Away With Tort Law’ (2008) 41 Loyola of Los Angeles Law Review 1149
Coleman, Jules, and Arthur Ripstein, ‘Mischief and Misfortune’ (1995) 41 McGill Law Journal 91
Coleman, Jules, and Gabriel Mendlow, ‘Theories of Tort Law’ (Fall 2010 edition) The Stanford Encyclopedia of Philosophy, Edward Zalta (ed), URL = http://plato.stanford.edu/archives/fall2010/entries/tort-theories/
Conaghan, Joane, ‘Tort Law and Feminist Critique’ (2003) 56(1) Current Legal Problems 175
Cook, Thomas S, ‘Workers' Compensation and Stress Claims: Remedial Intent and Restrictive Application’ (1987) 62 Notre Dame Law Review 879
Crocq, Marc-Antoine, and Louis Crocq, ‘From Shell Shock and War Neurosis to Posttraumatic Stress Disorder: A History of Psychotraumatology’ (2000) 2(1) Dialogues in Clinical Neuroscience 47
Crooker, Barbara, ‘The Lost Children’ (Heyek Press, 1989)
Crump (ed), RW, The Complete Poems of Christina Rossettie, Vol I (Louisiana State University Press, 1979)
Dare, Tim, ‘Disagreeing about Disagreement in Law: The Argument from Theoretical Disagreement’ (2010) 38(2) Philosophical Topics 1
Deák, Francis, ‘Compulsory Liability Insurance Under the British Road Traffic Acts of 1930 and 1934’ (1936) 3 Law & Contemporary Problems 565
Deák, Francis, ‘Liability and Compensation for Automobile Accidents’ (1937) 21(2) Minnesota Law Review 123
363
De Beauvoir, Simone, A Very Easy Death (Pantheon, 1964)
Dembe, Allard E, Occupation and Disease: How Social Factors Affect the Conception of Work-Related Disorders (Yale University Press, 1996)
Deraniyagala, Sonali, Wave (Knopf, 2013)
Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV) (4th ed, Washington DC, American Psychiatric Association, 2000)
Diagnostic and Statistical Manual of Mental Disorders V (DSM-V) (5th ed, Washington DC, American Psychiatric Association, 2013)
Didion, Joan, The Year of Magical Thinking (Vintage, 2005)
Didion, Joan, Blue Nights (Knopf, 2011)
Dowling, Noel T, ‘Compensation for Automobile Accidents: A Symposium’ (1932) 32(5) Columbia Law Review 785 du Bois, François, ‘Social Purposes, Fundamental Rights and the Judicial Development of the Private Law’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012)
Dworkin, Ronald, Taking Rights Seriously (Harvard University Press, 1978)
Dworkin, Ronald, Law’s Empire (Harvard University Press, 1986)
Edelman, Hope, Motherless Daughters: The Legacy of Loss (Da Capo Press, 1994)
Eggers, Dave, A Heartbreaking Work of Staggering Genius (Vintage Books, 2001)
Elizur, E, and M Kaffman, ‘Children’s Bereavement Reactions Following the Death of the Father: II (1982) 21(5) Journal of the American Academy of Child Psychiatry 474
Englard, Izhak, ‘The System Builders: A Critical Appraisal of Modern American Tort Theory’ (1980) 9 The Journal of Legal Studies 27
Epstein, Richard, ‘A Theory of Strict Liability’ (1973) 2 Journal of Legal Studies 151
364
Erbacher, Sharon, Negligence and the Wrongdoing Plaintiff: A Corrective Justice Analysis (PhD Thesis, Deakin University, 2014) – now published as Sharon Erbacher, Negligence and Illegality (Hart Publishing, 2017)
Erichsen, JE, On Railway and Other Injuries of the Nervous System (Walton & Maberly, 1866)
Erichsen, JE, On Concussion of the Spine: Nervous Shock and Other Obscure Injuries of the Nervous System in Their Clinical and Medico-Legal Aspects (Longmans, Green & Co, 1882)
Evans, William E and Mary V Relling, ‘Moving Towards Individualized Medicine With Pharmacogenomics’ (2004) 429 Nature 464
Eyetinge, Pearl, ‘A Silent House’, in Wendy Simonds and Barbara Katz Rothman, Centuries of Solace: Expressions of Maternal Grief in Popular Literature (Temple University Press, 1992)
Faulkner, William, As I Lay Dying (Vintage, 1930)
Ferrari, Robert, and Edward Shorter, ‘From Railway Spine to Whiplash – The Recycling of Nervous Irritation’ (2003) Medical Science Monitor 27
Figley, C, Stress Disorders Among Vietnam Veterans: Theory, Research and Treatment Implications (Brunner/Mazel, 1978)
Figley, Charles R, Trauma and its Wake (Brunner/Mazel, 1985)
Finlay-Jones, R, Anxiety, in G Brown and T Harris, Life Events and Illness (Guildford Press, 1989)
Finley, Lucinda, ‘A Break in the Silence: Including Women’s Issues in a Torts Course’ (1989) 1 Yale Journal of Law & Feminism 41
Fleming, John, The Law of Torts (Law Book Company, 9th ed, 1998)
Fletcher, George, ‘Fairness and Utility in Tort Theory’ (1972) 85 Harvard Law Review 537
Fletcher, George, ‘Corrective Justice For Moderns’ (1992) 106 Harvard Law Review 1658
365
Flink, J, The Automobile Age (MIT Press, 1990)
Flora, Colin E, ‘Special Relationship Bystander Test: A Rational Alternative to the Closely Related Requirement of Negligent Infliction of Emotional Distress for Bystanders’ (2011-2012) 39 Rutgers Law Record 28
Foster, Mark S, ‘The Automobile and the City’ in DL Lewis and L Goldstein, The Automobile and American Culture (University of Michigan Press, 1983)
Franklin (ed), Ralph W, The Poems of Emily Dickinson: Reading Edition (The Belknap Press of Harvard University Press, 1998)
French, Patterson H, ‘Accident Litigation and the Automobile Compensation Plan’ (1933) 167(1) The Annals of the American Academy of Political and Social Science 201
Freud, S, and J Bruer, Studies in Hysteria (trans. J Strachey) (Hoharth Press, 1895)
Freud, S, ‘Mourning and Melancholia’ in Collected Papers Vol IV (Hogarth Press, 1916)
Freud, S, ‘Mourning and Melancholia’ in Leticia Glocer Fiorini, Thierry Bokanowski, and Sergio Lewkowicz, On Freud’s ‘Mourning and Melancholia’ (Karnac Books, 2009)
Freud, S, ‘Selected Papers on Hysteria’ (1920) 4 Nervous and Mental Diseases Monograph Series
Freud, S, The Ego and the Id (Hogarth Press, 1923)
Friedman, Lawrence M, and Jack Ladinsky, ‘Social Change and the Law of Industrial Accidents’ (1967) 67(1) Columbia Law Review 50
Gil’adi, Avner, ‘The Child Was Small…Not So the Grief For Him: Sources, Structure, and Content of Al-Sakhawi’s Consolation Treatise for Bereaved Parents’ (1993) 14(2) Poetics Today 367
Glick, IO, CM Parkes, and R Weiss, The First Year of Bereavement (Basic Books, 1975)
Glocer Fiorini, Leticia, Thierry Bokanowski, and Sergio Lewkowicz, On Freud’s ‘Mourning and Melancholia’ (Karnac Books, 2009)
366
Golanski, Alani, ‘Nonmoral Theoretical Disagreement in Law’ (2016) 42(1) Mitchell Hamline Law Review 225
Golanski, Alani, ‘Why There is Widespread Nonmoral Theoretical Disagreement in Law’ in David A Frenkel (ed) Selected Issues in Modern Jurisprudence (Athens Institute for Education and Research, 2016)
Goldberg, John, and Benjamin Zipursky, ‘Seeing Tort Law From the Internal Point of View: Holmes and Hart on Legal Duties’ (2006) 75 Fordham Law Review 1563
Goldberg, John, and Benjamin Zipursky, ‘Tort Law and Moral Luck’ (2007) 92 Cornell Law Review 1123
Goldberg, John, and Benjamin Zipursky, ‘Torts as Wrongs’ (2009) 88(5) Texas Law Review 917
Goldberg, John, and Benjamin Zipursky, ‘Civil Recourse Revisited’ (2011) 39 Florida State University Law Review 341
Goldman, Francisco, Say Her Name (Grove Press, 2011)
Goodhart, AL, ‘The Shock Cases and Area of Risk’ (1953) 16 Modern Law Review 14
Granville Edge, P, ‘The Growth of Mortality Due to Motor Vehicles in England and Wales, 1904-23 (1926) 89(3) Journal of the Royal Statistical Society 405
Green, Karen, Bough Down (Siglio, 2013)
Greenwood, M, WJ Martin and WT Russell, ‘Deaths by Violence, 1837-1937’ (1941) 104(2) Journal of the Royal Statistical Society 146
Gregory, I, ‘Anterospective Data Following Childhood Loss of a Parent’ (1965) 13 Archives of General Psychiatry 99
Grey, Betsy, ‘Neuroscience and Emotional Harm in Tort Law: Rethinking the American Approach to Free-Standing Emotional Distress Claims’, in Current Legal Issues (Oxford University Press, 2011)
Gunther, John J, Death Be Not Proud (P.S.) (Harper Perennial Modern Classics, 1949)
367
Guest, Judith, Ordinary People (Penguin Books, 1982)
Hainey, Michael, After Visiting Friends: A Son’s Story (Scribner, 2013)
Hair, PEH, ‘Deaths from Violence in Britain: A Tentative Secular Survey (1971) 25(1) Population Studies 5
Hall, Donald, The Best Day the Worst Day: Life with Jane Kenyon (Mariner Books, 2005)
Handford, Peter, ‘Compensation for Psychiatric Injury: The Limits of Liability’ (1995) 2(1) Psychiatry, Psychology & Law 37
Handford, Peter, ‘When the Telephone Rings: Restating Negligence Liability for Psychiatric Illness’ (2001) 23 Sydney Law Review 597
Handford, Peter, ‘Psychiatric Injury: The New Era’ (2003) 11 Tort Law Review 13
Handford, Peter, Mullany and Handford’s Tort Liability for Psychiatric Damage (Lawbook Co, 2nd ed, 2006)
Handford, Peter, ‘Liability for Mental Harm: The High Court of Australia and the Civil Liability Acts’ (2010) 18 Tort Law Review 129
Harrington, Ralph, ‘The Neuroses of the Railway’ (1994) 44(7) History Today 15
Harris, Emily S, ‘Adolescent Bereavement Following the Death of a Parent: An Exploratory Study’ (1991) 21(4) Child Psychiatry and Human Development 267
Hart Ely, John, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980)
Herman, JL, Trauma and Recovery (Pandora, 1992)
Herodotus, Book Six, In The Histories (transl. A De Sélincourt and J M Marincola) (Penguin Books, 1996)
Herrington, Hon Desmond, ‘Theory of Negligence Advanced in the High Court of Australia’ (2004) 78 Australian Law Journal 595
368
Heydon, Justice Dyson, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 47(1) Quadrant 9
Hogan Jr, Edward A, and Lee M Stubbs, ‘The Sociological and Legal Problem of the Uncompensated Motor Victim’ (1938) 11 Rocky Mountain Law Review 11
Holcombe, William H, ‘Our Children in Heave’n (JB Lippincott and Co, 1870)
Holmes, Thomas H, and Richard H Rahe, ‘The Social Adjustment Rating Scale’ (1967) 11 Journal of Psychosomatic Research 213
Homer, The Iliad (transl. E. Rieu) (Penguin Books, 1950)
Hookway, Christopher, “Pragmatism”, The Stanford Encyclopedia of Philosophy (Summer 2016 Edition), Edward N. Zalta (ed.), URL =
Horowitz, MJ, Stress Response Syndromes (Jason Aronson, 1978
Horowitz, Mardi J, ‘Stress-Response Syndromes: A Review of Posttraumatic Stress and Adjustment Disorders’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993)
Horwitz, Allan V, and Jerome C Wakefield, ‘The Age of Depression’ (2005) Public Interest 39
Hoskins, Jeffrey, ‘Negligent Infliction of Emotional Distress: Recovery is Foreseeable’ (2006) The John Marshall Law Review 1019
Hudgens, Richard W, ‘Personal Catastrophe and Depression: A Consideration of the Subject With Respect to Medically Ill Adolescents, and a Requiem for Retrospective Life-Event Studies’ in Barbara Dohrenwend and Bruce Dohrenwend, Stressful Life Events: Their Nature and Effects (John Wiley & Sons, 1974)
Hughes, Hector, ‘The Position of the Injured Third Party’ (1938) 1(4) Modern Law Review 258
Hutchinson, Allan C, ‘The Importance of Not Being Ernest’ (1989) 34 McGill Law Journal 233
369
Ipp Report, Review of the Law of Negligence Report (Commonwealth of Australia, 2 October, 2002)
Janet, Pierre, L’Automatisme Psychologique: Essai de Psychologie Expérimentale Sur Les Formes Inférieures De L’Activité Humaine (Félix Alcan, 1889)
Jarrett, MC, ‘Shell-Shock Analogues: Neurosis in Civil Life Having Sudden or Critical Origin’ (1918) 2 Medicine and Surgery 266
Johnson, John G, ‘Concussion of the Spine in Railway Injuries’ (1883-84) 1 Medico-Legal Journal 515
Jones, Edgar, ‘The Psychology of Killing: The Combat Experience of British Soldiers During the First World War’ (2006) 41(2) Journal of Contemporary History 229
Juan Moreso, Jose, ‘Legal Positivism and Legal Disagreements’ (2009) 22(1) Ratio Juris 62
Jurgensen, Genevieve, The Disappearance: A Primer of Loss (WW Norton & Co, 1994)
Kaffman, M, and E Elizur ‘Bereavement Responses of Kibbutz and Non-Kibbutz Children Following the Death of the Father’ (1983) 24(3) Journal of Child Psychology & Psychiatry 435
Kandel, Eric, James Schwartz and Thomas Jessell, Principles of Neural Science (McGraw- Hill, 4th ed, 2000)
Kant, Immanuel, The Metaphysical Principles of Virtue 49 (M Gregor trans. 1964)
Kant, Immanuel, The Metaphysics of Morals, transl J Ladd (Bobbs-Merril, 1965)
Kardiner, A, The Traumatic Neurosis of War (Paul B Hober, 1941)
Katter, Norman, ‘“Who Then in Law is My Neighbour?” Reverting to First Principles in the High Court of Australia’ (2004) 12 Tort Law Review 85
Keating, Gregory, ‘Distributive and Corrective Justice in the Tort Law of Accidents’ (2000) 74 Southern California Law Review 193
370
Keistinen, T, O Säynäjäkangas, T Tuuponen, and SL Kivelä, ‘Bronchiectasis: An Orphan Disease with a Poorly-Understood Prognosis’ (1997) 10(12) European Respiratory Journal 278
Keller, Thomas, ‘Railway Spine Revisited: Traumatic Neurosis or Neurotrauma?’ (1995) 50 Journal of the History of Medicine 507
Kelmen, Harold, ‘Character and the Traumatic Syndrome’ (1945) 102(2) Journal of Nervous and Mental Disease 121
Kim, K, and S Jacobs, Stress of Bereavement and Consequent Psychiatric Illness, in C Mazure, Does Stress Cause Psychiatric Illness? (American Psychiatric Press Inc, 1995)
Kirby, Hon Justice Michael, ‘Comparativism, Realism and the Economic Factor – Fleming’s Legacy’, High Court of Australia website: http://www.hcourt.gov.au/assets/publications/speeches/former- justices/kirbyj/kirbyj_fleming.htm
Kirk, Jerome, and Marc L Miller, Reliability and Validity in Qualitative Research (Sage Publications, 1986)
Kochanowski, Jan, Laments (transl. by Stanisław Barańczak and Seamus Heaney) (Farrar, Strauss and Giroux, 1995)
Konstan, David, The Emotions of the Ancient Greeks: Studies in Aristotle and Classical Literature (University of Toronto Press, 2006)
Kostal, RW, ‘Currents in the Counter-Reformation: Illegality and Duty of are in Canada and Australia’ (1995) 3 Torts Law Review 100
Kramer, M, ‘Rights in Legal and Political Philosophy’, in K Whittington, R Kelemen and G Caldeira (eds), The Oxford Handbook of Law and Politics (Oxford University Press, 2008)
Krejci, Stephan, ‘Is General Negligence the New Exception to the Florida Impact Rule? (2015) 10(2) Florida A&M University Law Review 267
Kress, Ken, ‘Formalism, Corrective Justice and Tort Law’ (1992) 77 Iowa Law Review 1
371
Krystal, H, ‘Trauma and Affects’ (1978) 33 Psychoanalytic Study of the Child 81
Kubler-Ross, E, On Death and Dying (Tavistock, 1970)
Landes, William, and Richard Posner, The Economic Structure of Tort Law (Harvard University Press, 1987)
Larson, Arthur, ‘Mental and Nervous Injury in Workmen’s Compensation’ (1970) 23(6) Vanderbilt Law Review 1243
Lasiuk, G C, and K M Hegadoren, ‘Posttraumatic Stress Disorder Part I: Historical Development of the Concept’ (2006) 42(1) Perspectives in Psychiatric Care 13
Lewis, Shippen, ‘The Merits of the Automobile Accident Compensation Plan’ (1936) 2 Law & Contemporary Problems 583
Law Commission, ‘Damages for Personal Injury: Non-Pecuniary Loss’, No. 257
Lee, WR, ‘Emergence of Occupational Medicine in Victorian Times’ (1973) 30 British Journal of Industrial Medicine 118
Le Gros Clark, F, Lectures on the Principles of Surgical Diagnosis (J and A Churchill, 1870)
Leiter, Brian, ‘Explaining Theoretical Disagreement’ (2009) The University of Chicago Law Review 1215
Lewis, CS, A Grief Observed (Faber and Faber, 1961)
Lewis, DL, and L Goldstein, The Automobile and American Culture (University of Michigan Press, 1983)
Lewy, E, ‘Compensation for War Neurosis’ (1942) 1 War Medicine 887
Lindemann, E, ‘Symptomatology and Management of Acute Grief (1944) 101 American Journal of Psychiatry 141
Loewi, O, ‘The Chemical Transmission of Nerve Action’ (1936) Nobel Lecture, cited in LA Stevens, Explorers of the Brain (Angus and Robertson, 1973)
Lucretius, ‘Les Rêves’, in De Natura Rerum (transl. A Ernout) (Les Belles Lettres, 1985)
372
Lunney, Mark, ‘Counterfactuals and Corrective Justice: Legal History and Allan Beever’s Rediscovering the Law of Negligence’ (2009) 17 Torts Law Journal 219
Luntz, Harold, David Hambly, Kylie Burns, Joachim Dietrich, and Neil Foster, Torts: Cases and Commentary (LexisNexis Butterworths, 6th ed, 2009)
McBride, Nicholas, and Roderick Bagshaw, Tort Law (Pearson, 2008)
McFarlane, Alexander C, ‘Vulnerability to Posttraumatic Stress Disorder’, in Marion E Wolf and Aron D Mosnaim, Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment (American Psychiatric Press, 1990)
McNally, Richard J, ‘Posttraumatic Stress Disorder’ in Benjamin James Sadock, Virginia Alcott Sadock and Pedro Ruiz (eds), Kaplan & Sadock’s Comprehensive Textbook of Psychiatry Vol II (Lippincott Williams & Wilkins, 9th ed, 2009)
Macdonald, Helen, H is for Hawk (Jonathan Cape, 2014)
Mann, T, The Magic Mountain (transl. HT Lowe-Parker) (Alfred A. Knopf, 1963)
Marx, Robert S, ‘Compulsory Compensation Insurance’ (1925) 25(2) Columbia Law Review 164
Mayo, H, Outlines of Human Pathology (Burgess and Hill, 1836)
Meiklejohn, Andrew, ‘Sixty Years of Industrial Medicine in Great Britain’ (1956) 13 British Journal of Industrial Medicine 155
Menand, Louis, ‘Bet-tabilitarianism’ (1996) The New Republic 47
Mendelson, Danuta, ‘The Defendant’s Liability for Negligently Caused Nervous Shock in Australia – Quo Vadis’ (1992) 18 Monash University Law Review 16
Mendelson, Danuta, ‘Legal and Medical Aspects of Liability for Negligently Occasioned Nervous Shock: A Current Perspective’ (1995) 39(6) Journal of Psychosomatic Research 721
Mendelson, Danuta, ‘Dr Lowns and the Obligation to Treat: Creative Law-Making in the New South Wales Court of Appeal’ (1996) 4 Torts Law Review 242
373
Mendelson, Danuta, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, 1998)
Mendelson, Danuta, ‘The Modern Australian Law of Mental Harm: Parochialism Triumphant’ (2005) 13 Journal of Law and Medicine 2
Mendelson, Danuta, ‘Psychiatric Injury Law in England and Australia – Drawing Closer Together?’ (2007) 15 Journal of Law and Medicine 176
Mendelson, G, ‘The Concept of Post-Traumatic Stress Disorder: A Review’ (1987) 10 International Journal of Law and Psychiatry 45
Milici, Pompeo, ‘Pathogenic Effect of Emotional Shock’ (1936) 10(4) Psychiatric Quarterly 639
Moore, A, A Hand-Book of Railway Law (WH Smith & Son, 1859)
Mosnaim, Aron D, Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment (American Psychiatric Press, 1990)
Mosse, George L, ‘Shell-Shock as a Social Disease’ (2000) 35(1) Journal of Contemporary History 101
Mott, FW, ‘Mental Hygiene and Shell-Shock During and After the War’ (1917) The British Medical Journal 39
Mullany, Nicholas, ‘Psychiatric Damage in the House of Lords – Fourth Time Unlucky’ (1995) 3 Journal of Law & Medicine 112
Mullany, Nicholas, and Peter Handford, Tort Liability for Psychiatric Damage (The Law Book Co, 1993)
Murphy, SA, T Braun, L Tillery et al, ‘PTSD Among Bereaved Parents Following the Violent Deaths of their 12 to 28 Year-Old Children: A Longitudinal Prospective Analysis’ (1999) 12 Journal of Traumatic Stress 273
Murphy, SA, A Das Gupta, KC Cain et al, ‘Changes in Parents’ Mental Distress After the Violent Death of an Adolescent or Young-Adult Child: A Longitudinal Prospective Analysis’ (1999) 23 Death Studies 129
374
Myers, CS, ‘A Contribution to the Study of Shell Shock’ (1915) Lancet 316
Myers, CS, Shell-Shock in France, 1914-18 (Cambridge University Press, 1940)
National Research Council, Bereavement: Reactions, Consequences, and Care (National Academies Press, 1984)
Nerlove, SH, and WJ Graham, ‘The Trend of Personal Automobile Accidents’ (1928) 1(2) The Journal of Business of the University of Chicago 174
Nolan, Donal, and Andrew Robertson, ‘Rights and Private Law’, in Donal Nolan and Andrew Robertson, Rights and Private Law (Hart Publishing, 2012)
Norman, LG, ‘Road Traffic Accidents: Epidemiology, Control and Prevention’ (World Health Organization, 1962)
Oppenheim, H, Die Traumatische Neurosen (Hirschwald, 1889)
Oppenheim, H, Diseases of the Nervous System. A Textbook for Students and Practitioners of Medicine (transl. by EE Mayer) (JB Lippincott and Co, 1901)
O’Rourke, Meghan, The Long Goodbye (Riverhead Books, 2011)
Osterweis, Marian, Fredric Solomon, and Morris Green (eds), Bereavement: Reactions, Consequences, and Care (National Academy Press, 1984)
Page, Herbert W, Injuries of the Spine and Spinal Cord Without Apparent Mechanical Lesion, and Nervous Shock, in Their Surgical and Medio-Legal Aspects (J & A Churchill, 1883)
Parkes, CM, ‘The First Year of Bereavement’ (1970) 33 Psychiatry 422
Parkes, CM, Bereavement (Tavistock, 1972)
Parkes, CM, and R Brown, ‘Health After Bereavement: A Controlled Study of Young Boston Widows and Widowers (1972) 34 Psychosomatic Medicine 449
Parkes, CM, and RS Weiss, Recovery from Bereavement (Basic Books, 1983)
375
Patterson, Dennis, ‘Theoretical Disagreement and Interpretation’ (2016) 16(1) Diritto e Questioni Pubbliche 201
Paykel, ES, JK Myers, MN Dienelt, and GL Klerman, ‘Life Events and Depression: A Controlled Study’ (1969) 21 Archives of General Psychiatry 753
Pearson, RN, ‘Liability to Bystanders for Negligently Inflicted Emotional Harm – A Comment on the Nature of Arbitrary Rules’ (1982) 34 University of Florida Law Review 477
Perry, Stephen, ‘The Impossibility of Strict Liability’ (1988) 1(2) Canadian Journal of Law and Jurisprudence 147
Perry, Stephen, ‘The Moral Foundations of Tort Law’ (1992) 77 Iowa Law Review 449
Perry, Stephen, ‘The Mixed Conception of Corrective Justice’ (1992) 15 Harvard Journal of Law & Public Policy 917
Perry, Stephen, Loss, Agency, and Responsibility for Outcomes: Three Conceptions of Corrective Justice, in Ken Cooper-Stephenson & and Elaine Gibson (eds.), Tort Theory (Captus Press, 1993) 40-7
Perry, Stephen, ‘Professor Weinrib’s Formalism’ (1993) 16 Harvard Journal of Law and Public Policy 597
Perry, Stephen, ‘The Distributive Turn: Mischief, Misfortune, and Tort Law’ (1996) 16 Quinnipiac Law Review 315
Perry, Stephen, ‘Tort Law’, in Dennis Patterson, A Companion to Philosophy of Law and Legal Theory (Blackwell, 1996)
Perry, Stephen, ‘Responsibility for Outcomes, Risks, and the Law of Torts’ in Gerald Postema, Philosophy and the Law of Torts (Cambridge University Press, 2001)
Peterson, F, WS Haines and RW Webster (eds), Legal Medicine and Toxicology (WB Saunders Co, vol 1, 2nd ed, 1923)
Pettit, Philip, Republicanism: A Theory of Freedom and Government (Clarendon Press, 1997)
376
Pettit, Philip, A Theory of Freedom: From the Psychology to the Politics of Agency (Oxford University Press, 2001)
Pettit, Philip, ‘Law and Liberty’, in Legal Republicanism: National and International Perspectives, Samantha Besson and José Luis Martí (eds) (Oxford University Press, 2009)
Pettit, Philip, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge University Press, 2012)
Pfohl, B, D Strangl and M Tsuang, ‘The Association Between Early Parental Loss and Diagnosis in the Iowa 500’ (1983) 40 Archives of General Psychiatry 965
Plante, David, The Pure Lover: A Memoir of Grief (Beacon Press, 2009)
Plutarch, ‘Consolation to His Wife’ (‘Consolatio ad Uxorem’), Moralia. Vol. 7 (transl. PH de Lacy and B Einarson) (Harvard University Press and William Heinemann, 1959)
Pollock, Sir Frederick, A Treatise on the Law of Torts (The FH Thomas Law Book Co, 3rd ed, 1894)
Pollock, Law of Torts (6th ed)
Pollock, GH, ‘Mourning and Adaptation’ (1961) 42 International Journal of Psychoanalysis 341
Pols, Hans, ‘War Neurosis, Adjustment Problems in Veterans, and an Ill Nation: The Disciplinary Project of American Psychiatry During and After World War II’ (2007) 22(1) Osiris 72
Posner, Richard, ‘A Theory of Negligence’ (1972) 1 Journal of Legal Studies 29
Posner, Richard, ‘The Concept of Corrective Justice in Recent Theories of Tort Law’ (1981) 10 Journal of Legal Studies 187
Posner, Richard, Economic Analysis of Law (Little, Brown, 4th ed, 1992) 148
Posner, Richard, ‘Wealth Maximization and Tort Law: A Philosophical Inquiry’ (1995), in David Owen, Philosophical Foundations of Tort Law (Clarendon Press, 1995)
377
Pound, Roscoe, ‘Interests of Personality’ (1915) 28 Harvard Law Review 343
Prentiss, Elisabeth, ‘Stepping Heavenward’ (Warne, 1869); Theodore L Cuyler, ‘The Empty Crib’ (R Carter, 1873)
Preston, Barbara, Road Safety: International Comparisons’ (1981) 1(1) Transport Reviews 75
Priel, Dan, Torts, Rights and Right-Wing Ideology (2011) 19 Torts Law Journal 1
Prigerson, HG, AJ Bierhals, PK Maciejewski, ‘Traumatic Grief as a Distinct Disorder from Bereavement-Related Depression and Anxiety: Replication Study’ (1996) 153 American Journal of Psychiatry 1484
Prigerson, HG, E Frank, SV Kasl and CF Reynolds, ‘Complicated Grief and Bereavement- Related Depression as Distinct Disorders: Preliminary Empirical Validation in Elderly Bereaved Spouses’ (1995) 152 American Journal of Psychiatry 22
Rabin, Robert L, ‘Law for Law’s Sake’ (1996) 105 The Yale Law Journal 2261
Radó, Sándor, ‘The Problem of Melancholia’ (1928) 9 International Journal of Psycho- Analysis 420
Range, LM, and NM Niss, ‘Long-Term Bereavement from Suicide, Homicide, Accidents and Natural Deaths’ (1990) 14 Death Studies 423
Raphael, B, ‘Preventive Intervention with the Recently Bereaved’ (1977) 34 Archives of General Psychiatry 1450
Raphael, B, The Anatomy of Bereavement (Basic Books, 1983)
Redfield Jamison, Kay, Nothing Was the Same (Knopf, 2009)
Reid, Christopher, A Scattering (Arete, 2009)
Report by the Committee to Study Compensation for Automobile Accidents to the Columbia University Council for Research in the Social Sciences (Feb1, 1932)
378
Report of the War Office Committee of Enquiry into ‘Shell-Shock’ (Cmd. 1734, London, 1922)
Riedesser, Peter, and Axel Verderber, Maschinengewehre Hinter Der Front: Zur Geschichte Der Deutschen Militärpsychiatrie (Frankfurt a. Main, 1996)
Rieff, David, Swimming in a Sea of Death: A Son’s Memoir (Simon & Schuster, 2007)
Riesenfeld, Stefan A, ‘Contemporary Trends for Industrial Accidents Here and Abroad’ (1954) 42(4) California Law Review 531
Ripstein, Arthur, Equality, Responsibility, and the Law (Cambridge University Press, 1999)
Rivers, WHR, ‘The Expression of War Experience’ (1918) The Lancet 173
Road Accidents Involving Personal Injury, a Return issued by the Home Office on 22nd March, 1937: Parliamentary Paper No. 89 of Session 1936-7
Robertson, Andrew, ‘Justice, Community Welfare and the Duty of Care’ (2011) 127 Law Quarterly Review 370
Robertson, Andrew, ‘Policy-Based Reasoning in Duty of Care Cases’ (2013) 33(1) Legal Studies 119
Robertson Murphy III, George, ‘Asbestosis Litigation: Prescription, Contribution, Exposure, Insurance, and The Public Interest - A Casenote on Cole v Celotex Corp’ (1993) 54 Louisiana Law Review 467
Rodríguez-Blanco, Verónica, ‘‘Genuine’ Disagreements: A Realist Reinterpretation of Dworkin’ (2001) 21(4) Oxford Journal of Legal Studies 649
Romanov, K, J Varjonen, J Kaprio and M Koskenvuo, ‘Life Events and Depressiveness – The Effect of Adjustment for Psychosocial Factors, Somatic health and Genetic Liability’ (2003) 107 Acta Psychiatrica Scandinavica 25
Ronald D Fairbairn, W, ‘The War Neuroses: Their Nature and Significance’ (1943) British Medical Journal 183
379
Ross, Harold, ‘Traffic Accidents a Product of Socio-Psychological Conditions’ (1940) 18(4) Social Forces 569
Roth, Philip, Patrimony: A True Story (Simon & Schuster, 1991)
Ryan, Ray, and Des Ryan, ‘Asbestosis Litigation and the Requirements of the Negligence Action: New Developments in Irish and English Law’ (2007) 2(3) Quarterly Review of Tort Law 10
Sadock, Benjamin J, and Virginia A Sadock, Kaplan and Sadock’s Synopsis of Psychiatry (Lippincott, Williams & Wilkins, 9th ed, 2003)
Safe Work Australia, ‘Comparison of Workers’ Compensation Arrangements in Australia and New Zealand’ (2010) Commonwealth of Australia
Safran Foer, Jonathan, Extremely Loud and Incredibly Close (Mariner Books, 2005)
Sandars, NK, ‘The Search for Everlasting Life’, in N K Sandars (Ed), The Epic of Gilgamesh (Penguin Books, 1972)
Sappideen, Carolyn, and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011)
Sebold, Alice, The Lovely Bones (Little, Brown & Co, 2002)
Sedgwick (Damages (8th ed) 811)
Shapiro, Scott J, ‘The “Hart-Dworkin” Debate: A Short Guide for the Perplexed’ (Public Law and Legal Theory Working Paper Series, Working Paper No. 77, March 2007)
Shavell, Steven, Economic Analysis of Accident Law (Harvard University Press, 1987)
Shaw, A, In Holmes’ System of Surgery (W Parker & Sons, 2nd ed, vol 2, 1870)
Silverman, Phyllis R, and J William Worden, ‘Children’s Reactions in the early Months After the Death of a Parent’ (1992) 62(1) American Journal of Orthopsychiatry 93
Simonds, Wendy, and Barbara Katz Rothman, Centuries of Solace: Expressions of Maternal Grief in Popular Literature (Temple University Press, 1992)
380
Smith, Dale, ‘Dworkin's Theory of Law’ (2007) 22(2) Philosophy Compass 267
Smith, Dale, ‘Theoretical Disagreement and the Semantic Sting’ (2010) 30(4) Oxford Journal of Legal Studies 635
Smith, Dale, ‘Agreement and Disagreement in Law’ (2015) 28(1) Canadian Journal of Law & Jurisprudence 183
Smith, HW, Relation of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli’ (1944) 30 Virginia Law Review 193
Smith, Joshia W, A Manual of Common Law for Practitioners and Students (Stevens & Sons Ltd, 11th ed, 1898)
Smith, Stephen, Contract Theory (Oxford University Press, 2004)
Smith-Rosenberg, Carroll, ‘The Hysterical Woman: Sex Roles and Role Conflict in Nineteenth-Century America’, in Disorderly Conduct: Visions of Gender in Victorian America (Alfred A Knopf, 1985)
Stapleton, Jane, ‘Evaluating Goldberg and Zipursky’s Civil Recourse Theory’ (2006) 75 Fordham Law Review 1529
Stavropoulos, Nicos, ‘Legal Interpretivism’, The Stanford Encyclopedia of Philosophy (Summer 2014 Edition), Edward N. Zalta (ed.): http://plato.stanford.edu/archives/sum2014/entries/law-interpretivist/
Stevens, LA, Explorers of the Brain (Angus and Robertson, 1973)
Stierlin, E, Über Psychoneuropathische Folgezustände bei den Überlebenden der Katastrophe von Courriéres am 10 Marz 1906 (Unpublished Doctoral Dissertation, University of Zürich, 1909)
Stierlin, E, ‘Nervöse und Psychische Störungen nach Katastrophen’ (1911) 37 Deutsches Medizinische Wochenschrift 2028
Stevens, Robert, Torts and Rights (Oxford University Press, 2007)
Stone, The Province and Function of Law (1946)
381
Strayed, Cheryl, Wild: From Lost to Found on the Pacific Crest Trail (Knopf, 2012)
Stuart Phelps Ward, Elizabeth, ‘Gates Ajar’ (Boston, Fields, Osgood, 1868)
Sunstein, Cass, The Partial Constitution (Harvard University Press, 1998)
Tennant, C, P Bebbington and J Hurry, ‘Parental Death in Childhood and Risk of Adult Depressive Disorders: A Review’ (1980) 10 Psychological Medicine 289
Terr, LC, ‘Children of Chowchilla: A Study of Psychic Trauma’ (1979) 34 Psychoanalytic Study of the Child 552
Tesvic, J, ‘Perre v Apand – Coherent Negligent Law for the New Millenium?’ (2000) 22 Sydney Law Review 297
Thorold, Peter, The Motoring Age: The Automobile and Britain 1896-1939 (Profile Books, 2010)
Tilbury, M, ‘Purely Economic Loss in the Supreme Court of Canada’ (1994) 2 Tort Law Journal 1, 6
Trimble, Michael R, Post-Traumatic Neurosis: From Railway Spine to Whiplash (John Wiley & Sons, 1981)
Tutt, Andrew, ‘The Improbability of Positivism’ (2014) 34(2) Pace Law Review 562
Tyler, Anne, The Beginner’s Goodbye (Knopf, 2012)
Underwood, Peter, ‘Is Mrs Donoghue’s Snail in Mortal Peril?’ (2004) 12 Torts Law Journal 39 van der Kolk, Bessel A, and Jose Saporta, ‘Biological Response to Psychic Trauma’ in John P Wilson and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993) van der Kolk, Bessel A, Lars Weisaeth and Onno van der Hart, ‘History of Trauma in Psychiatry’, in Bessel A van der Kolk and Alexander C McFarlane (eds), Traumatic Stress: The Effects of Overwhelming Experience of Mind, Body, and Society (Guilford Publications, 2007)
382 van der Kolk, Bessel A, and Alexander C McFarlane (eds), Traumatic Stress: The Effects of Overwhelming Experience of Mind, Body, and Society (Guilford Publications, 2007)
Vernon, HM, ‘Prevention of Accidents’ (1945) 2(1) British Journal of Industrial Medicine 1
Vines, Prue, ‘Rediscovering the Law of Negligence (Book Review)’ (2008) 16 Torts Law Journal 182
Walford, C, ‘On the Number of Deaths From Accidents, Negligence, Violence and Misadventure in the United Kingdom and Some Other Countries’ (1881) 44 Journal of the Statistical Society 444
Washington, Peter, Poems of Mourning (Everyman’s Library, 1998)
Webley, Lisa, ‘Qualitative Approaches to Empirical Legal Research’ in Peter Cane and Herbert Kritzer (eds), Oxford Handbook of Empirical Legal Research (Oxford University Press, 2010)
Weinrib, Ernest, ‘The Case for a Duty to Rescue’ (1980) 90 The Yale Law Journal 247
Weinrib, Ernest, ‘Toward a Moral Theory of Negligence Law’ (1983) 2(1) Law and Philosophy 37
Weinrib, Ernest, ‘Legal Formalism: On the Immanent Rationality of Law’ (1988) 97(6) The Yale Law Journal 949
Weinrib, Ernest, ‘Right and Advantage in Private Law’ (1989) 10 Cardozo Law Review 1283
Weinrib, Ernest, ‘The Special Morality of Tort Law’ (1989) 34 McGill Law Journal 403
Weinrib, Ernest, ‘Corrective Justice’ (1992) 77 Iowa Law Review 403
Weinrib, Ernest, ‘The Gains and Losses of Corrective Justice’ (1994) 44 Duke Law Journal 277
Weinrib, Ernest, ‘Correlativity, Personality, and the Emerging Consensus on Corrective Justice’ (2001) 2 Theoretical Inquiries in Law 107
383
Weinrib, Ernest, ‘Corrective Justice in a Nutshell’ (2002) 52(4) University of Toronto Law Journal 349
Weinrib, Ernest, ‘Civil Recourse and Corrective Justice’ (2011) 39 Florida State University Law Review 273
Weinrib, Ernest, The Idea of Private Law (Oxford University Press, 1995, 2012)
Wenar, Leif, ‘The Nature of Rights’ (2005) 33 Philosophy and Public Affairs 223
Wessely, Simon, ‘Twentieth-Century Theories on Combat Motivation and Breakdown’ (2006) 41(2) Journal of Contemporary History 269
Whiston-Donaldson, Anna, Rare Bird: A Memoir of Loss and Love (Convergent Books, 2014)
Wilson, John P, and Beverley Raphael (eds), International Handbook of Traumatic Stress Syndromes (Plenum Press, 1993)
Winfield, P, ‘Duty in Tortious Negligence’ (1934) 34 Columbia Law Review 41
Winston Smith, Hubert, and Harry C Solomon, ‘Traumatic Neuroses in Court’ (1943) 30(1) Virginia Law Review 87
Witting, Christian, ‘The House that Dr Beever Built: Corrective Justice, Principle and the Law of Negligence’ (2008) 71(4) Modern Law Review 621
Wriggins, Jennifer, ‘Towards a Feminist Revision of Torts’ (2005) 13 Journal of Gender, Social Policy & The Law 139
Yeo, S, ‘Rethinking Proximity: A Paper Tiger?’ (1997) 5 Torts Law Review 174
Zipursky, Benjamin, ‘Civil Recourse, Not Corrective Justice’ (2003) 91 The Georgetown Law Journal 695
Zisook, S, and S Schuster, ‘Uncomplicated Bereavement’ (1993) 54 Journal of Clinical Psychiatry 365
Zisook, Sidney, Yulia Chentsova-Dutton and Stephen R Schucter, ‘PTSD Following Bereavement’ (1998) 10(4) Annals of Clinical Psychiatry 157
384
B Cases
A v B’s Trustees (1906) 13 SLT 830
Alabama Fuel & Iron Co v Baladoni (1916) 73 So 205, 207 (Ala Ct App)
Alcock v Chief Commissioner of South Yorkshire Police [1992] 1 AC 310
Atlantic Coast Airlines v Cook (2006) 857 NE2d 989 (Ind)
Beecham v Hughes (1988) 27 BCLR (2d) 1 (CA)
Bell v Great Northern Rail Co of Ireland (1890) 26 LRIr 428
Bertocci v Indoor Sports Management Inc 14 Mass L Rep 12, 2001
Braun v Craven 175 Ill 401, 51 NE 657, 659 (1898)
Brown v Corporation of the City of Glasgow 1922 SC 527
Bryan v Maloney (1995) 182 CLR 609
Bunyan v Jordan (1936) 36 SR (NSW) 350
Bunyan v Jordan (1937) 57 CLR 1
Calascione v Dixon (1993) 19 Butterworths Medico-Legal Reports 97
Campbelltown City Council v Mackay (1988) 15 NSWLR 501
Caparo Industries plc v Dickman [1990] 1 All ER 568
Cattanach v Melchior (2003) 199 ALR 131
Chadwick v British Transport Commission [1967] 1 WLR 912
Chakravarti v Advertiser Newspapers (1998) 193 CLR 519
Chambley v Apple Rest Inc (1998) 504 SE 2d 551, 552 (Ga Ct App)
385
Chester v The Council of the Municipality of Waverley (1939) 62 CLR 1
Christy Bros Circus v Turnage 38 Ga App 581, 144 SE 680 (1928)
Clements (Litigation Guardian of) v Clements [2012] 2 SCR 181
Cleveland CC & St L Rail Co v Stewart 56 NE 917 (Ind 1899)
Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1
Conder v Wood (1999) 716 NE 2d 432, 435 (Ind)
Cooper v Caledonian Railway Company 1902 SC 880
Darling Downs Gazette, ‘Fatal Case of Tetanus’, 26 August 1909
Devji v District of Burnaby (1999) BCCA 599 28
Deutsch v Schein 597 SW 2d 141 (1980)
Dillon v Legg 69 Cal Rptr 72, 441 P 2d 912 (1968) (Cal)
Donoghue v Stevenson [1932] AC 562
Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271
Dorset Yacht Co Lt v Home Office [1970] 2 All ER 294
Dulieu v White & Sons [1900] All ER Rep 353
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 23 ACSR 71
Ewing v Pittsburgh CC & St L Rail Co 23 A 340 (Pa 1892)
Fenton v Thorley (1903) AC 443
Fowler v North British Railway Company 1914 SC 866
Freedman v Eastern Massachusetts Street Railway Co 299 Mas 246, 12 NE 2d 739 (1938)
Frost v Chief Constable of South Yorkshire Police [1998] QB 254
386
Geiger v Grand Trunk RW Co (1905) 10 OLR 511
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269
Gilligan v Robb 1910 SC 856
Greenland v Chaplin (1850) 5 Ex 243
Grzywacz v Vanderheide [1992] OJ No. 2856, 37 ACWS (3d) 855
Gunns Limited v Alishah (No. 4)[2010] TASSC 24
Hambrook v Stokes Brothers [1924] All ER Rep 110
Harris v Mobbs (1878) 3 Ex D 268
Harriton v Stephens [2004] NSWCA 93
Hay or Bourhill v Young [1942] 2 All ER 396
Heaven v Pender (1883) 11 QBD 503 (CA)
Heil v Rankin [2000] PIQR Q187, Q203
Henderson v Canada Atlantic Railway Company (1899) 29 SCR 632
Hevican v Ruane [1991] 3 All ER 65
Hill v Van Erp (1997) 188 CLR 159
Hinz v Berry [1970] 2 QB 40
Hoard v Shawnee Mission Med Ctr (1983) 662 P 2d 1214, 1219-20 (Kan)
Hoinville-Wiggins v Connelly [1999] NSWCA 263
Holmes v Mather (1875) LR 10
Imbree v McNeilly (2008) 248 ALR 647
Jane Doe v Commonwealth of Massachusetts 12 Mass L Rep. 17
387
Jaensch v Coffey (1984) 155 CLR 549
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27
Jones v Boyce (1816) 1 Stark 493
Kemp v Lyell McEwin Health Service (2006) SASR 192
King v Philcox (2015) 255 CLR 304
Lahey Estate v Craig (1992) CarswellNB 240
Lehman v Brooklyn City Rail Co (1888) 47 Hun NY 355
Lewis v Daily Telegraph Ltd [1964] AC 234
McGee v Vanover 148 Ky 737, 147 SW 742, 744-5 (1912)
McLoughlin v O’Brian [1983] 1 AC 410
Macfarlane v Tayside Health Board [2000] 2 AC 59
Migliori v Airborne Freight Corporation (1998) 426 Mass 629
Miner v CPR (1911) 3 Alta LR 408
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Mitchell v Rochester Railway Co (1893) 25 NY Sup (Cir Ct)
Morgan v Tame (2000) 31 MVR 155
Morton v Stack 122 Ohio St 115, 170 NE 869 (1930)
Mount Isa Mines v Pusey (1970) 125 CLR 383
Noor Al Houda v Bankstown Airport (2005) 215 ALR 625
North Eastern Railway Company v Wanless [1874] 43 LJ QB 185
Olivero v Lowe (2000) 995 P 2d 1023, 1026 (Nev)
388
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No 1) [1961] AC 388
Owens v Liverpool Corporation [1939] 1 KB 394
Page v Smith [1996] AC 155
Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 3
Palsgraf v Long Island Railroad Co 162 NE 99, 99 (NY CA 1928)
Parmiter v Coupland (1840) 6 M & W 105
Perre v Apand Pty Ltd (1999) 164 ALR 606
Petrie v Dowling [1992] 1 Qd 284
Pham v Lawson (1997) 68 SASR 124
Porter v Delawere Lackawanna Western Railroad Co 73 NJL 405, 63 A 860 (906)
Pugh v London Brighton & South East Coast Rly Co [1896] 2 QB 248
Quinn v Walsh 49 Mass App Ct 696, 2000
Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73
Re Polemis and Furness Withy & Co [1921] 3 KB 560
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Reeve v Brisbane City Council [1995] 2 Qd 661
Rigby v Hewitt (1850) 5 Ex 240
Rhodes v Canadian National Railway (1990) 50 BCLR (2d) 273
School Division of Assinibione South No. 3 v Hoffer (1971) 21 DLR (3d) 608
Sion v Hampstead Health Authority [1994] 5 Med LR 170
Smith v Johnson & Co (1897)
389
Spade v Lynn and Boston Rail Road 168 Mass 285, 47 NE 88, 89 (1897)
Spence v Biscotti [1999] ACTSC 70
Strickland v Hodges (1975) 216 S.E.2d 706 (Ga Ct App)
Storm v Geeves [1965] Tas SR 252
Sullivan v Moody (2001) 207 CLR 562
Tame v Morgan (1998) 27 MVR 387
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Taylor v Somerset Health Authority [1993] 4 Med LR 34
Taylorson v Shieldness Produce Ltd [1994] PIQR 329, McFarlane v EE Caledonia Ltd [1994] 2 All ER 1
The Rigel [1912] P 99
Toms v McConnell 45 Mich App 647, 207 NW 2d 140 (1973) (Mich)
Travel Compensation Fund v Robert Tambree (2005) 224 CLR 627
Tucker v United Parcel Serv Inc (2007) CIV A 06-1204-MLB (D Kan) van Soest v Residual Health Management Unit [2000] 1 NZLR 179
Victorian Railways Commissioners v Coultas (1888) App Cas 222
Walker v Pitlochry Motor Company 1930 SC 565
Wallace v Kennedy (1908) 16 SLT 485
Ward v West Jersey & St Rail Co 47 A 561 (NJ 1900)
Ward v West Jersey & Seashore Railroad Co (1900) 65 NJL 383
White v Chief Constable of South Yorkshire Police [1999] 1 All ER 1
Whiten v Pilot Insurance Co (2002) CarswellOnt 537
390
Wicks v State Rail Authority (2010) 241 CLR 60
Wilkins v Day (1883) 12 QBD 110
Wilkinson v Downton (1897) 2 QB 57
Willis v Gami Golden Glades LLC (2007) 967 So. 2d 846 (Fla)
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 205 ALR 522
C Legislation
Civil Liability Act 2002 (WA)
Civil Liability Act 2002 (NSW)
Civil Law (Wrongs) Act 2002 (ACT)
Civil Liability Act 1936 (SA)
Civil Liability Act 2002 (Tas)
Dust Diseases Tribunal Act 1989 (NSW)
Employers’ Liability Act 1880
Factory Act 1844
Factory and Workshops Act 1871
Health and Morals of Apprentices Act 1802
Law Reform (Miscellaneous Provisions) Act 1944 (NSW)
Law Reform (Miscellaneous Provisions) Ordinance 1955 (ACT)
Law Reform (Miscellaneous Provisions) Act 1955 (NT)
Motor Accidents Act 1988 (NSW)
391
Motor Vehicle (Compulsory Third Party Insurance) Act 1942 (NSW)
Motor Vehicle (Compulsory Third Party Insurance) Act 1943 (WA)
Motor Vehicles Insurance (Third Party Risks) Act 1928, 19 Geo V (NZ) No. 52
Safety Appliance Act 27 Stat 531-2
Workmen’s Compensation Act 1897
Wrongs Act 1932 (Vic)
Wrongs Act Amendment Act 1936 (SA)
Wrongs Act Amendment Act 1986 (SA)
D Newspaper Articles
Aberdeen Evening Express, ‘Aberdeen and North-Eastern Industrial Accident Prevention Group’, 17 January 1955
Aberdeen Press and Journal, ‘Notification of Industrial Accidents’, 12 January 1903
Aberdeen Press and Journal, ‘Doctor’s Accident’, 24 October 1925
Aberdeen Press and Journal, ‘Strathspey Road Mishap’, 16 January 1929
Aberdeen Press and Journal, ‘Compensation for Road Accidents’, 6 May 1933
Aberdeen Press and Journal, ‘Weeping Mother’s Evidence. Child Killed in Tarves Street Mishap’, 6 December 1938
Aberdeen Press and Journal, ‘All-In Social Security Plan’, 2 December 1942
Advertiser, ‘A Youth’s Dreadful Death’, 12 July 1910
Advertiser, ‘Law Courts. Industrial Disputes’, 5 April 1917
Advertiser, ‘A Grief Stricken Daughter. Death From Shock’, 28 August 1925
392
Advertiser, ‘South-Eastern Railway Accident. A Passenger Train Derailed’, 3 January 1928
Advertiser, ‘Injured Pedestrian Awarded Damages’, 27 October 1932
Advertiser, ‘Three Children and Father Dead. S.A. Man’s Tragedy in Tasmania’, 21 January 1944
Advertiser, ‘Rest Pause for Tea. Fewer Accidents, Says Report’, 15 November 1946
Advocate, ‘Traffic Bill’, 8 December 1926
Advocate, ‘Manslaughter Charge Follows Fatal Accident’, 19 July 1946
Age, ‘Motor Traffic. Motor Lorry Overturned. A Man Killed. Wife’s Compensation Claim’, 13 November 1924
Age, ‘Estate Valued at £30,000. Left by Sydney Business Man’, 19 February 1935
Age, ‘the Right of the Road. Children and Motor Accidents. Parents’ Grief and Anxiety’, 1 October 1935
Age, ‘Several Hurt in Road Accidents’, 25 March 1950
Arbroath Herald and Advertiser for the Montrose Burghs, 6 April 1945
Argus, ‘Whirled Round Shaft’, 12 July 1910
Argus, ‘Saturday May 20 1916’, 20 May 1916
Argus, ‘Traffic Accidents. Victorian Statistics for 1931’, 27 February 1932
Argus, ‘Reducing Traffic Accidents’, 1 November 1935
Argus, ‘Three Children and Father Found Dead. Woman Severely Hurt’, 21 January 1944
Argus, ‘31 Victoria Crash Deaths This Month’, 26 May 1947
Argus, ‘Death Still Rides the Roads’, 30 November 1950
Argus, ‘Battle Against Bedlam’, 28 January 1952
Armidale Chronicle, ‘A Sad Death’, 24 January 1923
393
Armidale Express and New England General Advertiser, ‘Brother Succumbs. Parents Brief Stricken’, 11 May 1938
Armidale Express and New England General Advertiser, ‘Committed Suicide. Two Sussex Brothers. Feared Insanity. Grief For Dead Mother’, 7 October 1938
Army News, ‘Grim Tragedy at West Tamar’, 22 January 1944
Australian Women’s Weekly, ‘When a Spouse Dies’, 19 February 1969
Banbury Advertiser, 1 November 1934
Barrier Daily Truth, ‘Suicide Verdict in Hospital Balcony Case’, 23 January 1943
Barrier Miner, ‘Fatality at Wentworth’, 17 March 1923
Barrier Miner, ‘Claim for Compensation’, 15 May 1940
Barrier Miner, ‘Compensation for Nervous Shock?’, 17 December 1942
Barrier Miner, ‘Proposed Nervous Shock Bill’, 5 January 1943
Barrier Miner, ‘“Compo” for Shock’, 9 January 1943
Bedfordshire Times and Independent, 10 November 1944
Belfast News-Letter, ‘Motor Notes. Compensation for Accidents’, 12 August 1933
Belfast News-Letter, Industrial Injuries’, 2 August 1956
Bellshill Speaker, ‘Street Collision’, 18 March 1927
Bendigo Independent, ‘Very Youthful Sportsmen. Brothers of Twelve and Six. The Younger Shot Dead’, 21 May 1900
Beverley Times, ‘Warning on Industrial Accidents’, 14 February 1969
Beverley Times, ‘Two Die in Tragic Road Smash’, 16 October 1970
Biggleswade Chronicle, ‘Compensation for Acidents Bill’, 19 May 1933
Biz, ‘Road Accidents Appalling’, 4 February 1959
394
Biz, ‘Accidents Cause Industry Huge Losses – Rotary Told’, 25 October 1961
Biz, ‘500,000 People in Road Smashes’, 4 December 1963
Border Watch, ‘Holiday Train Derailed’, 3 January 1928
Bournemouth Daily Echo, ‘The Great Automobile Race: Many Deaths’, 25 May 1903
Bournemouth Daily Echo, ‘The Motor Fatality at Brogkenhurst’, 8 June 1904
Braidwood Dispatch and Mining Journal, ‘“Nervous Shock” Bill Provides Essential Public Safeguard’, 8 January 1943
Brisbane Courier, ‘Babes in the Wood’, 16 April 1926
Brisbane Courier, ‘Accident at Workshops’, 5 February 1931
Bucks Herald, ‘Two Civil Actions’, 11 May 1934
Bucks Herald, ‘Compensation for Injuries’, 17 February 1935
Bunyip, Town Tattle. A Sad Trial’, 4 August 1905
Cairns Post, ‘Melbourne Notes’, 17 December 1932
Cairns Post, ‘“Shock” Unpleasant Consequences’, 5 October 1938
Cairns Post, ‘Our London Letter’, 12 January 1939
Caledonian Mercury, Edinburgh, ‘Leith – Fatal Accident’, 5 May 1853
Canberra Times, Brick-Pit Mishap. Workman Dies From Injuries’, 24 April 1928
Canberra Times, ‘Safety is Rule for Everyone’, 27 September 1960
Canberra Times, ‘In the Courts’, 16 April 1965
Canberra Times, ‘Accidents Cost NSW £100m’, 5 June 1965
Canberra Times, ‘In the Courts’, 16 September 1966
Canberra Times, ‘Drive for Safer Car in US’, 29 July 1967
395
Canberra Times, ‘27 Die in Accidents’, 16 July 1968
Canberra Times, ‘Traffic Accidents in 1967’, 26 November 1968
Canberra Times, ‘Mystery of Cot Deaths. Britain Seeks Answer to Problem’, 4 September 1975
Canberra Times, ‘Grief of Bereaved Should ‘Run its Natural Course’’, 29 March 1977
Canberra Times, ‘Road Toll ‘National Tragedy’’, 21 November 1978
Canberra Times, ‘Mother Tells of Grief Following Son’s Murder’, 13 October 1979
Canberra Times, ‘Doctors Appeal for Steps to Reduce the Road Toll’, 22 October 1980
Canberra Times, ‘Victim’s Caring Helps Heal Crime Wounds’, 29 December 1980
Canberra Times, ‘Grief Over Losses’, 9 May 1981
Canberra Times, ‘US Statistics: Road Deaths Rise With Smaller Cars’, 27 May 1981
Canberra Times, ‘Hazard of Driving in Australia’, 21 May 1982
Canberra Times, ‘Children Coping With Bereavement’, 20 August 1983
Canberra Times, ‘Coming to Grips With Grief’, 9 May 1986
Canberra Times, Parents Expected to Cope Too Quickly. Understanding Miscarriage’, 17 December 1988
Canberra Times, ‘Grief Over Lost Child is a Path That Need Not Be Trodden Alone’, 18 July 1989
Canberra Times, ‘Why Did Baby Brian Die?’, 27 January 1991
Canberra Times, ‘Very Physical Signs From Grief: Study’, 20 May 1991
Canberra Times, ‘Coping With Grief When a Baby Dies’, 11 January 1992
Canberra Times, ‘Helping Children Cope With Grief’, 11 July 1992
Canberra Times, ‘Grief Eased Through Celebration of Life’, 11 July 1993
396
Canberra Times, ‘Parents Seeks to Save Others From Grief’, 26 May 1994
Canberra Times, ‘Cot Death Leaves Grief, But More Understanding’, 26 August 1994
Canberra Times, ‘Support and Counselling for a Very Private Grief’, 12 February 1995
Central Queensland Herald, ‘Motor Accident Insurance Losses Mounting’, 27 October 1955
Cessnock Eagle and South Maitland Recorder, ‘“Nervous Shock” Bill Provides Essential Public Safeguard’, 5 January 1943
Cheltenham Chronicle, ‘£400 Limit for Workman’s Death’, 15 May 1920
Chronicle, ‘Industrial Terrorism’, 20 February 1936
Chronicle, ‘Tragedy in Tasmania. Victims Came From S.A.’, 27 January 1944
Cobram Courier, ‘Startling Facts on Road Accidents’, 27 September 1951
Coffs Harbour Advocate, ‘Woolgoolga Road. Claim for Compensation’, 20 July 1928
Cootamundra Herald, ‘Accident Ahead’, 4 March 1952
Courier-Mail, ‘Two Workmen Injured. Ingot Falls Into Ship’s Hold’, 29 May 1934
Courier Mail, ‘£5! Extraordinary! Judge Criticises Award. Sequel to Traffic Accident’, 6 December 1935
Critic, ‘Justice to Widows’, 9 March 1917
Croydon Advertiser and East Surrey Reporter, ‘Hurt in Crash’, 17 November 1939
Cumberland Argus, ‘Motor Casualties’, 25 June 1952
Daily Advertiser, ‘A Daughter’s Grief. Suicide After Father’s Death’, 13 May 1924
Daily Advertiser, ‘Missing Child. Death From Exposure’, 2 June 1932
Daily Advertiser, ‘Law Amendment. Damages for Nervous Shock’, 17 December 1942
397
Daily Advertiser, ‘Dangerous Practice. Riding Unlighted Bicycles. More Prevalent in Wagga’, 5 April 1944
Daily Advertiser, ‘High Ratio of Fatal Road Accidents’, 20 August 1947
Daily Advertiser, ‘Accident Figures in Britain’, 29 July 1952
Daily Examiner, ‘Shotgun. Found in Waterhole. Williamtown Murder. Two Men Charged’, 19 June 1928
Daily Examiner, ‘Child’s Death. Remarkable Story. Tragedy at Perth. Father Charged With Murder’, 29 September 1936
Daily Herald, ‘Workers’ Compensation Act’, 30 September 1910
Daily Herald, ‘Reducing Accidents by Educational Plan’, 27 September 1916
Daily Herald, ‘Workmen’s Compensation’, 6 January 1917
Daily Herald, ‘Many Workers Injured’, 21 March 1918
Daily Herald, ‘Occupational Diseases’, 24 April 1918
Daily Herald, ‘Mosquito Bite Death. Father Dies of Grief’, 5 October 1920
Daily Herald, ‘Safety in Ship Building’, 20 January 1921
Daily Herald, ‘Industrial Accident. Interesting Statistics. Report of International Labor Office’, 22 April 1924
Daily News, ‘The Victim’s Parents. Receiving the News’, 14 June 1910
Daily News, ‘Woodlupine Murder’, 18 May 1911
Daily News, ‘Suicide Follows Grief’, 18 March 1936
Daily News, ‘Grief Stricken Father Joins His Dead Son’, 21 November 1949
Daily Post, ‘Industrial Accident. Manufacturer’s Convention’, 9 May 1911
Daily Record, ‘Labour Training’, 17 February 1943
398
Daily Standard, ‘Industrial Health’, 21 March 1923
Daily Telegraph, ‘Tramway Fatality’, 22 March 1913
Dandenong Journal, Emerald Family’s Tragic Double Loss’, 10 October 1945
Dandenong Journal, ‘Clayton Parents Overcome Grief at Double Inquest’, 31 January 1951
Diss Express, 13 April 1945
Don Dorrigo Gazette and Guy Fawkes Advocate, ‘News From Yankee Files’, 11 June 1921
Dorking and Leatherhead Advertiser, ‘Terrible Motor Car Fatality: Automobile Club’s Official Killed at Holmwood’, 16 July 1910
Driffield Times, ‘Another Automobile Fatality’, 28 September 1907
Dubbo Liberal and Macquarie Advocate, ‘Nervous Shock Bill Provides Safeguard’, 5 January 1943
Dubbo Liberal and Macquarie Advocate, ‘£31,800 to Crippled Labourer’, 31 October 1952
Dundee Courier, ‘Automobile Dashes Into Train’, 25 August 1910
Dundee Courier, ‘Critics of Motor Insurance’, 24 October 1929
Dundee Courier, ‘Saw Fatal Crash. Sues for £1,250’, 4 December 1940
Dundee Courier, ‘Shipyard Worker Wins Appeal’, 9 May 1950
Dundee Evening Telegraph, ‘Fatal Automobile Accident’, 17 July 1900
Dundee Evening Telegraph, ‘Fatal Automobile Accidents’, 25 June 1912
Durham Chronicle, ‘Bus Collision Sequel’, 26 April 1929
Eastbourne Gazette, ‘Shock of Husband’s Death Echo of Brooklands Racing Fatality’, 27 June 1928
Essex County Chronicle, ‘Sad Fatal Accident at Halstead. Horses Frightened by a Train’, 10 January 1902
399
Evening Despatch, 15 May 1944
Evening News, ‘Parents’ Grief. Baby Sisters Killed. Driver’s Version’, 24 January 1929
Examiner, ‘Inland Wires. Terrible Accident’, 29 July 1901
Examiner, ‘Death of Wife. Frantic Husband’s Suicide. Pitiful Case’, 22 October 1935
Examiner, ‘Nervous Shock Has Status in Law Actions for Damages’, 14 July 1936
Examiner, ‘Four Dead in West Tamar Tragedy: Fifth Critically Injured’, 21 January 1944
Exeter and Plymouth Gazette, ‘Motoring’, 17 January 1925
Exeter and Plymouth Gazette, ‘Motoring’, 25 April 1925
Exeter and Plymouth Gazette, ‘Road Traffic’, 29 October 1929
Exeter and Plymouth Gazette, ‘Motor Notes’, 16 November 1929
Exeter and Plymouth Gazette, ‘Motor Notes’, 8 March 1930
Exeter and Plymouth Gazette, ‘Motor Notes’, 7 November 1931
Falkirk Herald, ‘Industrial Safety’, 21 January 1950
Falkirk Herald, Accidents in the Factory’, 21 March 1951
Farmer and Settler, ‘The Motor Age. Importance of Inquiry. Safety First’, 23 May 1924
Freeman’s Journal, ‘Shocking Automobile Catastrophe’, 14 October 1903
Gippsland Times, ‘Wanders About With Cut Throat. Now Recovering in Hospital’, 13 March 1939
Gippsland Times, ‘Maffra Level Crossing Fatality’, 25 July 1946
Gloucestershire Echo, ‘Automobile Accident in France: English Car Runs Over Mother and Child’, 30 May 1908
Gloucestershire Echo, ‘Mechanical Hammer Kills Workman’, 13 April 1948
400
Grant v Australian Knitting Mills Ltd [1936] AC 85 (PC)
Hartlepool Daily Mail, 1 November 1934
Horsham Times, ‘Obituary’, 14 May 1912
Hull Daily Mail, ‘The Life of the Road’, 26 September 1929
Hull Daily Mail, ‘Mishap in Hull Oil Mill’, 15 November 1938
Illawarra Mercury, ‘In Memorium. The Kembla Disaster’, 31 July 1908
Inverell Times, ‘Death After a Fall. Accident at Butter Factory’, 16 March 1926
Inverell Times, ‘Mill Accident at Gum Flat’, 10 November 1954
Jersey Independent and Daily Telegraph, ‘Terrible Motor Smash. Many Killed and Injured’, 5 October 1907
Kalgoorlie Miner, ‘Industrial Laws. Accident Relief Funds’, 9 March 1911
Kalgoorlie Miner, ‘Shocking Tragedy. Man Found Hanging. Three Children Battered to Death’, 21 January 1944
Kalgoorlie Western Argus, ‘Fatality at Tindal’s Mine’, 19 July 1910
Kalgoorlie Western Argus, ‘Industrial Laws. Accident Relief Funds’, 14 March 1911
Kiama Independent, and Shoalhaven Advertiser, ‘Nervous Shock Bill. Public Safeguard’, 9 January 1943
Kirkintilloch Herald, 16 February 1944
Lancashire Evening Post, ‘An Assurance Company’s Failure, 28 May 1902
Lancashire Evening Post, ‘Pain in Back. Nervous Shock Neuritis’, 3 February 1937
Leeds Mercury, ‘An Assurance Company’s Failure, 28 May 1902
Leeds Mercury, ‘20 Killed Every Day’, 10 May 1934
Lichfield Mercury, ‘Compensation for Accidents Bill’, 19 May 1933
401
Lincolnshire Echo, ‘Industrial Accidents. 1919 Death Toll. Suggestion of Safety Committees’, 22 September 1920
Lithgow Mercury, ‘Compensation for Shock’, 17 December 1942
Lithgow Mercury, ‘Portland Mourns for Juvenile Tragedy. Thousands Attend Funeral, 9 November 1950
Lithgow Mercury, ‘Just For Today’, 29 November 1950
Liverpool Daily Post, ‘Accidents at Work. 7 Reasons for Increase’, 7 October 1943
Liverpool Evening Express, ‘Compensation’, 29 July 1943
Longreach Leader, ‘Suicide Pact. Whole Family Wiped Out. Father and Daughters Grieved at Mother’s Death’, 4 June 1932
Macleay Chronicle, ‘Nervous Shock Bill’, 6 January 1943
Maidstone Telegraph, Rochester and Chatham Gazette, ‘A Fatal Accident – A Child Killed’, 20 August 1859
Mail, ‘Father’s Fatal Grief’, 14 May 1927
Maitland Weekly Mercury, ‘Local News’, 1 May 1926
Manchester Courier and Lancashire General Advertiser, ‘Automobile Fatality’, 9 August 1902
Manchester Evening News, ‘Walk Again’, 20 September 1940
Maryborough Chronicle, Wide Bay and Burnett Advertiser, ‘Alma. In Loving Memory of Little Alma Williams of Doolbe’, 20 April 1922
Maryborough Chronicle, Wide Bay and Burnett Advertiser, ‘Trapped in Flames. Four Children Burned. Pitiful Station Fatality. Parents Grief-Stricken’, 19 December 1929
Mercury, ‘Youth’s Shocking Death’, 12 July 1910
402
Mercury, ‘Schoolgirl’s Death. Apparent Case of Suicide. Grief for Dead Mother’, 8 March 1929
Mercury, ‘Street Traffic’, 7 September 1936
Middlesex Chronicle, ‘Coroner’s Opinion of Silicosis’, 26 August 1944
Mirror, ‘Damages for Nervous Shock’, 9 January 1943
Morning Bulletin, ‘£10,000 Damages Claimed by Injured Truck Driver’, 14 October 1954
Mornington and Dromana Standard, ‘In Memorium’, 28 November 1908
Motherwell Times, ‘Industrial Accident Prevention’, 26 July 1957
Mudgee Guardian and North-Western Representative, ‘Death of a Child at Home Rule’, 20 February 1913
Murrumburrah Signal and County of Harden Advocate, ‘“Nervous Shock” Bill Provides Essential Public Safeguard’, 7 January 1943
Narandera Argus and Riverina Advertiser, ‘Damages for Nervous Shock’, 22 December 1942
National Advocate, ‘Child’s Tragic Death. Diptheria Cases at Dubbo’, 10 June 1933
National Advocate, ‘“Nervous Shock” Bill Provides Essential Public Safeguard’, 4 January 1943
National Advocate, ‘Accidents in Industry. Warning by Minister’, 24 May 1945
Nepean Times, ‘Lift Fatality’, 30 June 1934
Newcastle Morning Herald and Miners’ Advocate, ‘Industrial Accident Relief’, 11 October 1907
Newcastle Morning Herald and Miners’ Advocate, ‘Industrial Matters. Accident Insurance. Proposals of Miners’ Federation’, 30 March 1922
Newcastle Morning Herald and Miners’ Advocate, ‘Accidents’, 5 March 1930
403
Newcastle Morning Herald and Miners’ Advocate, ‘English Road Traffic’, 11 September 1933
Newcastle Morning Herald and Miners’ Advocate, ‘Son’s Suicide. Grief at Father’s Death. Minmi Tragedy Inquiry’, 25 June 1935
Newcastle Morning Herald and Miners’ Advocate, ‘Industrial Court. Accident at Factory’, 8 September 1937
Newcastle Morning Herald and Miners’ Advocate, ‘Industrial Accident Hospital’, 10 December 1937
Newcastle Morning Herald and Miners’ Advocate, ‘Widow Awarded £2,091. Man Crushed by Lorry’, 2 October 1940
Newcastle Morning Herald and Miners’ Advocate, ‘Damages for Shock’, 11 January 1943
Newcastle Morning Herald and Miners’ Advocate, ‘Permit Damages for Nervous Shock’, 12 October 1944
Newcastle Morning Herald and Miners’ Advocate, ‘Industrial Accident Figures Too High’, 24 May 1945
Newcastle Morning Herald and Miners’ Advocate, ‘Widow Wins Two Verdicts’, 3 October 1952
Newcastle Sun, ‘He Left Estate of £30,000. Grief Stricken Man’s Suicide Note’, 18 February 1935
Newcastle Sun, ‘Compensation for Shock’, 24 November 1942
Newcastle Sun, ‘Bond for Woman Who Took Baby’, 1 April 1954
News, ‘Estate of Suicide Valued at £30,000. Found Dead at Office’, 18 February 1935
News, ‘Compulsory Insurance Proposal is Not Comprehensive Cover. Benefits Limited After Accident. No Compensation for Damage’, 25 May 1936
404
News, ‘Motor Cyclist Awarded £4,830. Judge Explains His Finding; Damages Heaviest Given Here’, 1 October 1937
News, ‘Position and Law Arising From Nervous Shock’, 8 November 1939
News, ‘Petrol Blast Kills Three’, 23 December 1953
Northern Champion, ‘The Value of a Life’, 7 June 1916
Northampton Mercury, ‘Motor Fatality Near Potterspury’, 23 August 1907
Northampton Mercury, 2 November 1934
Northampton Mercury, ‘Nervous Shock’, 29 May 1939
Northern Miner, ‘Witnessed Suicide’, 17 October 1935
Northern Miner, ‘No Claim’, 19 October 1935
Northern Miner, ‘Nervous Shock From Accident. Woman Awarded Damages’, 11 September 1936
Northern Star, ‘James Connors’ Death’, 23 October 1907
Northern Star, ‘Shocking Accident’, 15 February 1917
Northern Star, ‘Huge Sum for Injury’, 31 October 1952
Northern Whig, ‘A Miraculous Escape’, 11 December 1929
Nottingham Evening Post, ‘Fatal Automobile Accident’, 17 March 1902
Nottingham Evening Post, ‘Automobile Fatality’, 16 December 1902
Nottingham Evening Post, ‘Workmen’s Compensation’, 13 May 1920
Nottingham Evening Post, ‘Security for Workers’, 27 February 1924
Nottingham Evening Post, ‘Who is to Blame?’, 28 July 1926
Nottingham Evening Post, ‘£50 Special Pension’, 14 July 1933
405
Nottingham Evening Post, ‘Defects in Workmens’ Compensation Law’, 14 December 1936
Nottingham Evening Post, ‘Nottingham Child’s Injuries’, 8 November 1939
Nottingham Journal, ‘Accidents at Work’, 17 July 1925
Observer, ‘A Daughter’s Grief. Suicide Near Father’s Grave’, 25 December 1926
Observer, ‘A Sad Accident’, 10 December 1927
Pall Mall Gazette, ‘Terrible Automobile Fatality’, 1 April 1907
Perthshire Advertiser, 4 November 1944
Port Lincoln Times, ‘Tragic End to Newell Family. Three Children and Father Dead. Sister- In-Law Injured’, 27 January 1944
Port Macquarie News and Hastings River Advocate, ‘Local Government. Claims Against Councils. Nervous Shock’, 20 May 1939
Queensland Times, ‘Accident at the Railway Workshops’, 19 May 1909
Queensland Times, ‘Injury to an Eye. Accident and the Railway Workshops’, 6 August 1909
Queensland Times, ‘A Crushed Hand’, 14 June 1912
Queensland Times, ‘Safety in Mines’, 31 March 1923
Queensland Times, ‘Wivenhoe Accident. Damages of £91/11/ Allowed. Cars Meet in Cutting’, 31 July 1937
Recorder, ‘Suicide’s Estate Worth £30,000. “Life a Dull Affair”’, 19 February 1935
Register, ‘South-East Train Smash. Beachport ‘Special’ Off the Line’, 3 January 1928
Register, ‘Bunderberg and Preventive Medicine’, 31 January 1928
Richmond River Express and Casino Kyogle Advertiser, ‘Parents’ Grief. Tragedy of Poolamacca Station. The Father’s Story’, 3 January 1927
Riverine Herald, ‘Compensation for Shock’, 13 January 1943
406
Scrutineer and Berrima District Press, ‘“Nervous Shock” Bill Provides Essential Public Safeguard’, 6 January 1943
Sheffield Daily Telegraph, ‘An American Automobile Disaster’, 28 August 1902
Sheffield Daily Telegraph, ‘Industrial Accidents’, 9 January 1911
Sheffield Independent, ‘Awarded £900’, 28 October 1937
Shepparton Advertiser, ‘Grief for Son. Agony of Father’, 20 March 1933
Shields Daily News, ‘Automobile Fatality’, 25 June 1912
Singleton Argus, ‘Echo of R101 Disaster. Tragedy Recalled’, 4 November 1932
South Coast Bulletin, ‘Passing of Mr Pinnow’, 24 June 1953
South Coast Times and Wollongong Argus, ‘The Kembla Disaster’, 1 August 1908
South Eastern Times, ‘A Holiday Sensation. Passenger Train Wrecked’, 3 January 1928
Southern Cross, ‘Traffic Control’, 6 August 1926
Southern Mail, ‘Traffic Cases’, 18 November 1932
Southern Reporter, 15 March 1945
Southern Times, ‘Collie Notes’, 11 April 1908
Sporting Times, ‘Motor Sparrings’, 21 December 1912
St George Call, ‘Nervous Shock’, 1 January 1943
St James’s Gazette, ‘Court and Society’, 29 November 1888
Staffordshire Advertiser, 15 April 1944
Star of the East, 20 November 1889
Sun, ‘Sad Fatality. Kalgoorlie Boy Killed. On Fingall Gold Mine’, 13 December 1914
Sun, ‘Safety First Movement’, 20 December 1915
407
Sun, ‘’Bus Accidents. Claims for Compensation’, 2 May 1924
Sun, ‘Parents’ Grief. Tragedy of Poolamacca Station. Father’s Story’, 31 December 1926
Sun, ‘A Father’s Grief. “Agony of Suffering”’, 25 March 1928
Sun, ‘His Kiddies. Father’s Grief’, 27 December 1929
Sun, ‘Woman’s Grief for Dead Husband’, 10 November 1937
Sun, ‘Cash Value of Happiness’, 21 December 1940
Sun, ‘Damages for Shock’, 17 December 1942
Sunday Mail, ‘Two Urgent Calls. Blood Sent to Save Lives’, 20 July 1947
Sunday Post, ‘Motorists and Their Insurance Policies’, 19 April 1925
Sunderland Daily Echo and Shipping Gazette, ‘Should State Pay Workmens’ Compensation?’, 1 May 1933
Sunderland Daily Echo and Shipping Gazette, ‘Pain in Back. Nervous Shock Neuritis’, 28 January 1937
Sunderland Daily Echo and Shipping Gazette, ‘£200 for Injuries’, 1 March 1939
Sydney Morning Herald, ‘Fatality at Factory. Vincent v Wilson’s Tile Works Ltd’, 27 June 1935
Sydney Morning Herald, ‘Nervous Shock. Verdict for £750. Against the Tramways’, 10 September 1936
Sydney Morning Herald, ‘Traffic Disorders’, 16 December 1937
Sydney Morning Herald, ‘Local Government. Claims Against Councils. Nervous Shock’, 20 April 1939
Sydney Morning Herald, ‘Damages for Nerve Shock’, 17 December 1942
Tamworth Herald, ‘Industrial Accident Compensation’, 19 December 1936
408
Telegraph, ‘Young Lady’s Grief. Lost Interest in Life’, 14 February 1927
Telegraph, ‘Tragic Grief. Causes Banker’s Death’, 25 September 1929
Telegraph, ‘Damages Awarded. Sequel to Traffic Accident’, 4 December 1929
Telegraph, ‘Traffic Bill. Compulsory Insurance?’, 20 November 1931
Telegraph, ‘“Wanted to See her Son” Woman Found Drowned. Evidence at Inquest’, 16 August 1932
Telegraph, ‘“Grief Over Loss of Father.” Inquest on Man Who Fell From Hotel Canberra’, 25 October 1937
Thanet Advertiser, ‘Third Party Damages’, 21 February 1933
The Banbury Advertiser, ‘Desecrating a Grave’, 6 December 1888
The Banbury Beacon, ‘Desecrating a Grave’ 8 December 1888
The Bath Chronicle, ‘Runaway Horse’, 30 November 1882
The Bath Chronicle, ‘Run Over at Bristol’, 30 November 1882
The Bath Chronicle, ‘Midsomer Norton – Fatal Accident’, 22 April 1886
The Belfast News-Letter, ‘Second Edition’, 29 November 1888
The Berwick Advertiser, ‘Automobile Fatality’, 11 September 1908
The Beverley and East Riding Recorder, 30 November 1889
The Birmingham Daily Post, ‘News of the Day’, 30 November 1888
The Birmingham Post, ‘War Time Fear is Natural. But it Must be Controlled’, 18 March 1942
The Bradford Daily Telegraph, 21 November 1889
The Bristol Mercury, 21 November 1889
The Bury and Norwich Post, ‘Sufferers from Railway Spine’ 4 December 1888
409
The Bystander, ‘Automobile Topics: The Sensationalism of the Markyate Tragedy’, 17 May 1905
The Bystander, ‘Automobile Topics’, 4 December 1907
The Bystander, ‘Automobile Topics: Counting the Cost’, 12 August 1908
The Cambridge Daily News, 20 November 1889
The Cambridge Independent Press, ‘The Fatal Accident at Chesterton’, 6 October 1899
The Canterbury Journal, Kentish Times and Farmer’s Gazette, ‘Russia Preparing for War’, 8 December 1888
The Chichester Observer, 27 November 1889
The Cornish Telegraph, ‘The Czar and Czarina’, 6 December 1888
The Daily Mail, ‘French Crash Survivors Lived on Biscuits for Six Days’, 29 April 1933
The Dover Express, 29 November 1889
The Dublin Daily Express, ‘Illness of the Czarina’, 30 November 1888
The Dublin Evening Telegraph, ‘The Deadly Bicycle’, 12 March 1902
The Dundee Courier, ‘Fatal Result of an Accident’, 22 February 1892
The Dundee Evening Telegraph, ‘Empress of Russia Afflicted with Railway Spine’ 30 November 1888
The Dundee Evening Telegraph, 21 November 1889
The Dworking and Leatherhead Advertiser, 30 November 1889
The East and South Devon Advertiser, ‘Fatal Accident to a Pleasure Party’, 15 April 1882
The Evening Post, ‘Passenger’s Substantial Award of Damages’, 4 August 1904
The Evening Star and Daily Herald, ‘From All Quarters’, 12 March 1902
410
The Evening Telegraph, ‘Empress of Russia Afflicted with “Railway Spine”’, 30 November 1988
The Evening Telegraph, ‘Bicycles and Nervous Shock’, 11 March 1902
The Evening Telegraph, ‘Scots Road Crash. Damages Claim at Court of Session’, 2 March 1933
The Evening Telegraph, ‘Fell to Death from Train’, 11 August 1939
The Examiner, 10 November 1866
The Globe, ‘Medical Men as Witnesses’, 15 January 1904
The Globe, ‘Automobile Club Reports: Motor Car Fatality’, 17 June 1904
The Globe and Traveller, ‘The New Knee’, 14 June 1895
The Hampshire Advertiser, ‘The Late Railway Accident to the Czar and Czarina’, 1 December 1888
The Illustrated London News, ‘Doctor Charcot’, 26 August 1893
The Irish Times, 21 November 1889
The Jersey Independent and Daily Telegraph, 1 December 1888
The Kendal Mercury, ‘Melancholy and Fatal Accident From a Runaway Horse’, 19 April 1856
The Leicester Daily Mercury, 21 November 1889
The London Evening Standard, ‘Medicine and the Law’, 14 September 1895
The London Evening Standard, ‘Railway Spine’, 20 November 1889
The Manchester Courier and Lancashire General Advertiser, ‘The Empress of Russia’, 29 November 1888
The Manchester Weekly Times, ‘Chatwood v The Lankashire and Yorkshire Railway Company’, 7 August 1869
411
The Manchester Weekly Times, ‘Foster v The Lankashire and Yorkshire Railway Company’, 7 August 1869
The Manchester Weekly Times, ‘Jelly v The London and North-Western Railway Company’, 7 August 1869
The Morning Post, Fatal Accident’, 9 June 1870
The Northern Daily Mail, ‘The Effects of Explosives’, 27 January 1894
The Nottingham Evening Post, ‘The Empress of Russia’, 29 November 1888
The Nottingham Evening Post, ‘Fatal Street Accident at Derby’, 6 September 1888
The Nottingham Evening Post, 20 November 1889
The Nottingham Evening Post, ‘One Woman Killed and Two Injured. Shocking Motor Accident in Nottingham. Driver’s Fatal Mistake’, 21 April 1914
The Pall Mall Gazette, ‘Railway Accidents’, 18 July 1868
The Pall Mall Gazette, ‘Tittle Tattle for the Tea Table’, 29 November 1888
The Pall Mall Gazette, ‘Railway Accidents’, 18 July 1868
The Preston Herald, ‘Empress of Russia’, 1 December 1888
The Scotsman, ‘Fatal Accident at Falkirk’, 25 May 1901
The Scotsman, ‘Motor Car Driving. Need for Road Sense. Only Acquired by Practice’, 16 February 1929
The Scotsman, ‘Unusual Action. Shock Caused by Loud Noise. Claim for Damages Fails’, 28 July 1936
The Scotsman, ‘Action for £2,000 Damages at Cupar’, 4 December 1936
The Scotsman, ‘Edinburgh Family in Accident’, 4 December 1937
The Sevenoaks Chronicle and Kentish Advertiser, 29 November 1889
412
The Sheffield Evening Telegraph, ‘Items of Interest’, 30 November 1888
The Sheffield Weekly Telegraph, 7 December 1889
The Shepton Mallet Journal, ‘Caution to Nursemaids’, 2 August 1872
The Shepton Mallet Journal, 29 November 1889
The Southern Reporter, ‘Carelessness of Nurses’, 5 December 1872
The State of the East, 20 November 1889
The Sunderland Echo and Shipping Gazette, 4 October 1934
The Wellington Journal and Shrewsbury News, ‘Another Motor Disaster. Shocking Fatality’, 15 June 1907
The Western Daily Press, ‘Local Action Against the Great Western Railway Company, 4 March 1878
The Western Daily Press, ‘The Empress of Russia’, 30 November 1888
The Western Daily Press Bristol, ‘Fatal Accident at Portishead’, 2 October 1884
The Western Morning News and Daily Gazette, ‘Bere Alston Woman’s Death’, 4 March 1932
The Westmorland Gazette and Kendal Advertiser, ‘The “Railway Spine” – A New Disease’, 3 November 1866
The Wexford Constitution, ‘Caution to Nursemaids’, 31 July 1872
The Whitstable Times and Herne Bay Herald, ‘Sufferers from Railway Spine, 8 December 1888
The Yorkshire Post and Leeds Intelligencer, ‘Ireland’, 30 November 1888
The Yorkshire Post, ‘Noise of Street Collision. Sick Man in Bed Claims Damages’, 28 July 1936
Times, ‘Booklet Helps in Accepting Death’, 12 August 1988
413
Times, ‘Bereavement Educator to Visit’, 2 August 1994
Times and Express, ‘“Railway Spine” and “Railway Brain”’, 20 December 1907
Times and Northern Advertiser, ‘Fatal Railway Accident. Fireman Phil Middleton Killed. Engine & Ten Trucks Fall Into Creek’, 17 February 1928
Townsville Daily Bulletin, ‘Supreme Court. Civil Sittings’, 9 August 1934
Truth, ‘Cruel Fate’s Merciless Torture of Westralian Family’, 5 October 1930
Truth (Brisbane), ‘Woman Who Won Damages Suit Suicides. Accident Sequel’, 4 July 1937
Truth (Sydney), ‘Society Woman’s Death. Found Gassed in Her Flat’, 4 July 1937
Truth, ‘State of Roads Blames for Accident Toll’, 19 June 1949
Truth, ‘Father’s Grief Ends With Death Draft’, 11 March 1951
Tweed Daily, ‘Damages for Nervous Shock’, 17 December 1942
Wagga Wagga Express, ‘Jump to Death. Son’s Grief’, 24 January 1931
Warracknabeal Herald, ‘Obituary’, 1 May 1917
Warwick Daily News, ‘Death on the Roads’, 7 December 1950
Waterford Standard, ‘The Fatal Motor Accident to American Tourists’, 12 June 1907
Week, ‘Sydney Family. Tragic Death of Two Members’, 8 March 1929
Weekly Times, ‘Mother’s Fatal Grief. A Triple Tragedy’, 26 November 1921
Weekly Times, ‘Touching Memorial of Avoca. A Mother’s Love That is Carved in Stone’, 1 July 1939
West Australian, ‘A Shocking Fatality’, 12 July 1910
West Australian, ‘Puzzles of the Law’, 4 June 1926
West Australian, ‘Grief at Son’s Death. A Mother Takes Poison’, 9 August 1934
414
West Australian, ‘Child in Convulsions. Coogee Tragedy’, 10 December 1937
West Australian, ‘Workers’ Compensation’, 17 November 1939
West Australian, ‘Domestic Tragedy. Three Children Dead. Father Found Hanged’, 21 January 1944
West Australian, ‘Fatal Poisoning. Inquest into Woman’s Death’, 14 November 1946
West Gippsland Gazette, ‘Mystic Sense in Nature’, 19 May 1925
West Wyalong Advocate, ‘Damages for Nerve Shock’, 21 December 1942
Western Argus, ‘Traffic Acidents(sic). Compensation for Victims’, 26 May 1931
Western Daily Press, ‘Compensation for Road Accidents’, 6 May 1933
Western Daily Press, ‘Doctors and Road Accidents’, 14 July 1933
Western Daily Press, ‘£2,500 for Insurance Inspector’, 11 June 1937
Western Gazette, ‘To the Editor’, 3 August 1934
Western Grazier, ‘“Nervous Shock” Bill Provides Essential Public Safeguard, Says Premier’, 8 January 1943
Western Herald, ‘Industrial Accidents’, 11 June 1965
Western Star and Roma Advertiser, ‘Claim for £200 Damages. Wheatley v Commissioner for Railways’, 26 May 1937
Western Times, ‘Automobile Overturned’, 13 June 1905
Western Times, ‘Tavistock Fatality’, 7 December 1920
Windsor and Richmond Gazette, ‘Accident Sequel. Motor Driver Before Court. To Pay £5 Compensation’, 24 May 1940
World’s News, ‘Family Car- America’s Most Deadly Weapon’, 27 March 1954
415
Wrexham and Denbighshire Weekly Advertiser, Melancholy and Fatal Carriage Accident Near Barnsley’, 18 September 1858
Yorkshire Evening Post, ‘Pain in Back. Nervous Shock Neuritis’, 29 January 1937
Yorkshire Gazette, ‘Melancholy and Fatal Accident’, 3 September 1859
Yorkshire Post and Leeds Intelligencer, ‘Industrial Fatigue and Accidents’, 1 December 1922
Yorkshire Post and Leeds Intelligencer, ‘Appeal Dismissed’, 6 May 1938
E Websites http://www.belovedhearts.com/grief_center https://bereavedparentsusa.org http://bereavementireland.com http://www.billstanton.co.uk/pearl/pearl_new.htm http://www.childbereavementuk.org/ https://www.compassionatefriends.org https://www.copefoundation.org/ https://www.griefandsympathy.com/grieving-loss-child.html http://www.griefspeaks.com https://www.griefwatch.com/death-of-a-child https://grievingdads.com/ http://grievingparents.com https://healgrief.org
416 http://www.imdb.com/list/ls073523869/ http://www.litscape.com/themes/life_and_death/Death_Of_Child_Poetry.html https://mubi.com/lists/films-about-grief-and-loss https://myforeverchild.com https://www.recover-from-grief.com http://www.stillbornandstillbreathing.com http://www.tasteofcinema.com/2015/20-great-movies-about-loss-and-grief/ http://www.thelaboroflove.com http://whatsyourgrief.com/32-books-about-death-and-grief
F Other
New South Wales Parliamentary Debates, Legislative Assembly, 18 November 1943 (second series, vol 173)
New South Wales Parliamentary Debates, Legislative Assembly (second series) vol 173, 4 April 1944
South Australian Parliamentary Debates, report of the Consolidated Bills Committee, Legislative Assembly, second reading speech, 8 August 1939
South Australian Parliamentary Debates, report of the Consolidated Bills Committee, Legislative Council, second reading speech, 28 September 1939
417