Legal Briefing No. 68

Number 68

4 December 2003

Claims for Psychological Injury

The common law in Australia in relation to compensation
for psychological or psychiatric injury has developed cautiously,
with a distinction drawn between psychiatric injury and
physical injury.

That distinction has been determined by four central principles,
each of which has been used to justify limiting the situations
in which compensation is recoverable for pure psychiatric
injury. Those principles were summarised by Gummow and
Kirby JJ in Tame v New South Wales; Annetts v
Australian Stations Pty Ltd [2002] HCA 35; (2002) 191
ALR 449 ('Tame and Annetts')
at [192]:

  • psychiatric harm is less objectively observable than
    physical injury and is therefore more likely to be trivial
    or fabricated and is more captive to shifting medical
    theories and conflicting expert evidence
  • litigation in respect of purely psychiatric harm is
    likely to operate as an unconscious disincentive to rehabilitation
  • permitting full recovery for purely psychiatric harm
    risks indeterminate liability, and
  • liability for purely psychiatric harm may impose an
    unreasonable or disproportionate burden on defendants.

RECOGNISABLE PSYCHIATRIC INJURY

In the absence of a physical injury, mental or emotional
distress or suffering (including emotions such as grief,
sorrow, distress, worry, anxiety, disappointment, anger,
outrage) will generally not be compensable – a recognisable
psychiatric injury or illness is required. In Tame and Annetts,
the High Court confirmed that in seeking compensation for
psychiatric injury in an action for negligence it must
be established that a plaintiff suffers from a recognisable
psychiatric illness. Gummow and Kirby JJ noted that:

In Australia…a plaintiff who is unable affirmatively
to establish the existence of a recognisable psychiatric
illness is not entitled to recover. Grief and sorrow
are among the "ordinary and inevitable incidents
of life"; the very universality of those emotions
denies to them the character of compensable loss under
the tort of negligence. Fright, distress or embarrassment,
without more, will not ground an action in negligence.
[193]

The Australian position accordingly remains far removed
from the American common law which has identified the right
of each individual to have their peace of mind protected,
with a consequent right to recover for negligent infliction
of emotional distress.

In order to receive compensation under the Safety,
Rehabilitation and Compensation Act 1988 ('the
SRC Act') for an injury to the mind it is not necessary
for a plaintiff to identify a condition with the label
of a recognised medical condition. It is, however, essential
for them to demonstrate that he or she is suffering from 'a
condition that is outside the boundaries of normal mental
functioning and behaviour'. Therefore a compensable
injury or disease cannot exist when the employee is 'not
mentally ill or mentally disturbed or suffering from
any psychological disorder' (Comcare v Mooi (1996)
137 ALR 690).

THE ROLE OF DSM-IV

It is often difficult to assess whether a psychiatric
injury or illness exists. This is particularly the case
because the assessment of whether an injury or illness
exists may often turn upon a plaintiff's subjective
reporting of various matters, rather than verifiable, objective
proof.

However, diagnostic tools such as the American Psychiatric
Associations' Diagnostic and Statistical Manual of
Mental Disorders 4th edition, Text Revision (2000) ('DSM-IV'),
provide some clarity. The DSM-IV sets out diagnostic criteria
for the various known mental disorders and can be of significant
assistance in determining whether a recognisable psychiatric
injury (or 'injury' or 'disease' within
the meaning of the SRC Act) has been suffered.

Determining this question by reference to the DSM-IV occurs
relatively frequently in courts and tribunals (see, for
example, Cook and Repatriation Commission [2001]
AATA 269 at [37]; McAuslan v Australian Overseas Communications
Corporation Limited [1992] ACTSC 111 at [102] and Morgan
v Tame [2000] NSWCA 121 at [99]).

However, the DSM-IV should not be considered conclusive
in this regard. In NSW v Seedsman [2000] NSWCA 119
Spigelman CJ stated:

The DSM-IV is certainly not written as legislation.
It describes, in terms which should be taken as guidelines
rather than strict boundaries, a condition which a clinician
may diagnose when certain criteria are met.

DSM-IV is not a statutory formulation which a court must
construe and decide whether its requirements are satisfied.
It is, as its title suggests, a diagnostic manual for clinical
use. (See also Budworth v Repatriation Commission [2001]
FCA 317; (2001) 33 AAR 48 at [57]–[59] and Tame and Annetts at
[293] ff.)

DAMAGES AWARDED WITHOUT PSYCHIATRIC INJURY

Damages can be awarded for mental distress that does not
constitute a recognisable psychiatric illness where such
distress has been suffered as the result of the commission
of some other wrong. Such damages are sometimes referred
to as 'parasitic damages' because they are
awardable only where they can be attached to some recognised
wrong other than negligence – usually an intentional
tort. For example, if an assault, battery or false imprisonment
has occurred and physical harm or inconvenience results,
damages for mental distress may be added to the main award
for damages (see, for example, Hurst v Picture Theatres [1915]
1 KB 1).

Parasitic damages for mental distress are also available
in relation to actions for trespass to land (see, for example, Waters
v Maynard (1924) 24 SR (NSW) 618), torts involving
interference with goods (see, for example, Graham v
Voigt (1989) 89 ACTR 11), defamation and most torts
involving pure economic loss such as deceit, interference
with contract and infringement of copyright.

In breach of contract actions damages are not recoverable
for anxiety, disappointment, distress and other normal
emotions which fall short of a recognisable psychiatric
injury or illness unless there is an implied or express
term of the contract that the promisor will provide pleasure,
enjoyment or personal protection for the promisee. Damages
will also be recoverable for distress or disappointment
consequent upon the suffering of physical inconvenience
as a result of a breach of contract. (See, for example, Baltic
Shipping Co v Dillon (1993) 176 CLR 344 at 405, per
McHugh J; Jarvis v Swans Tours Ltd [1973] QB 233.)

It also appears that damages for mental distress may be
awarded in claims based on a contravention of a statute
such as the Trade Practices Act 1974 (Cth) (Aldersea
v Public Transport Corporation [2001] 3 VR 499 at 506–507).

NEGLIGENCE AND PSYCHIATRIC INJURY

The common law has developed slowly in relation to pure
psychiatric injury caused by negligence. Initially, damages
for psychiatric injury were only recoverable if they were
consequent upon the plaintiff's own injuries (Victorian
Railway v Coultas (1888) 13 App Cas 222). However,
the right of the plaintiff to recover damages for pure
psychiatric injury gradually increased as cases arose which
highlighted the arbitrary and unjust manner in which the
rule against damages for pure psychiatric injury operated.
Three rules had emerged to limit the circumstances in which
a plaintiff could recover damages for psychiatric injury,
namely:

  • the sudden or nervous shock rule – pure psychiatric
    injury is only compensable if it arose from a 'sudden
    affront of the senses'
  • the direct perception rule – only persons who
    directly perceive a tortious event or its immediate aftermath
    and have close and intimate relationship with the primary
    victim of the negligence can recover damages for pure
    psychiatric injury; and
  • the normal fortitude rule – a person cannot
    recover for pure psychiatric damage unless it was reasonably
    foreseeable that a person of normal fortitude would have
    suffered from a psychiatric injury as a result of the
    negligent act or omission.

These rules were considered by the High Court in Tame and Annetts.

In 1991, Mrs Tame was involved in a motor vehicle collision.
The other driver, who was at fault, had a blood alcohol
content reading of 0.14. Mrs Tame tested negative to the
blood alcohol test but the police officer completing the
accident report, mistakenly recorded her blood alcohol
as 0.14. This error was detected within a short period
and corrected. However, before that amendment was made,
a copy of the incorrect accident report had been provided
to the insurer of the driver at fault.

When Mrs Tame discovered this information, she became
distressed, worrying about how many people would be told
and the effect it would have on her reputation, even though
the report had been corrected and the NSW police service
made a formal apology. Mrs Tame consequently developed
a psychotic depressive illness. Medical evidence was provided
that she was predisposed to psychotic depression, a susceptibility
of which the police officer could not have been aware.

In the case of Annetts, Mr and Mrs Annetts' son,
James, went to work as a jackeroo for Australian Stations
in Western Australia as a 16 year old. The Annetts, being
particularly concerned about the safety of their son in
such a harsh working environment, contacted Australian
Stations. They only agreed to allow their son to work for
Australian Stations after making enquiries as to the safety
arrangements that would be put in place for James and being
assured that he would be under constant supervision. However,
despite those assurances, after only 7 weeks he was sent
to work alone as a caretaker in a remote location.

In December 1986 it was discovered that James was missing
and likely to be in grave danger. Mr and Mrs Annetts were
informed of this over the phone by police and Mr Annetts
subsequently collapsed.

A prolonged search for James then ensued leading to the
discovery of his bloodstained hat in January 1987 and finally
his body in April. On the basis of medical evidence, it
was concluded that James had died in December 1986 as a
result of dehydration, exhaustion and hypothermia.

Sudden shock

One of the grounds upon which the Full Court of the Supreme
Court of Western Australia found against the Annetts was
that their psychiatric injuries had arisen over a period
of time as opposed to arising from sudden or nervous shock
after learning of the disappearance of their son.

By a majority the High Court rejected the proposition
that only psychiatric injury suffered as a result of a 'nervous
shock', in the sense of a 'sudden affront to
the senses', creates an entitlement to compensation.
The majority's position is summarised by Gleeson
CJ's comments at [36]:

The process by which the applicants became aware of
their son's disappearance, and then his death,
was agonizingly protracted, rather than sudden. And the
death by exhaustion and starvation of someone lost in
the desert is not an 'event' or a '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.

Direct perception

The Full Court of the Supreme Court of Western Australia
had also found that there was no direct perception by the
Annetts with their own senses of a distressing phenomenon
on 6 December 1986, when they were informed of James' disappearance.
Therefore, as there had there been no direct perception
of an event (namely James' death) or its immediate
aftermath, the Annetts were not entitled to compensation
for psychiatric injury.

By a majority, this rule was also rejected. As Gaudron
J concluded at [51]:

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

Nonetheless:

  • the relationships between the primary victim of the
    negligence and the plaintiff, the plaintifff and the
    defendant
  • the physical and temporal distance of the plaintiff
    from the distressing event, and
  • the manner in which they became aware of the distressing
    event will remain important, finding reflection in whether
    or not the prospect of the plaintiff suffering a psychiatric
    injury was reasonably foreseeable (Gleeson CJ at [18],
    Gaudron J at [52], Gummow and Kirby JJ at [225]).

Normal fortitude

In Tame, New South Wales Court of Appeal found
that it was not reasonably foreseeable that a person of
normal fortitude would sustain psychiatric injury from
a clerical mistake of the kind involved in the accident
report form. Similarly, in Annetts it was held that
it was not reasonably foreseeable that parents of normal
fortitude would suffer from a psychiatric injury as a result
of hearing of the death of their son.

By a majority, the High Court rejected the notion that
the normal fortitude of a plaintiff needs to be established
as a separate independent test of liability (Gleeson CJ
at [16]). Nonetheless, it was accepted that the notion
of 'ordinary fortitude' should have continuing
relevance in relation to whether or not psychiatric injury
is reasonably foreseeable. That is, the consideration of
whether a person in the defendant's position should
reasonably have foreseen an injury of such a kind as that
sustained by the plaintiff will likely be assisted by a
reference to a person of normal fortitude.

Gleeson CJ at [29] and McHugh J at [115]–[116] stated
that the consideration of whether an injury was reasonably
foreseeable in light of a person of normal fortitude is
not to be determined with scientific predictability. That
is, evidence of a medical expert that a psychiatric injury
could reasonably flow to a person of normal fortitude from
the event would not necessarily ensure a plaintiff's
success. Rather, the question is whether the tortfeasor
could reasonably have been expected to foresee that his
mistake carried a risk of harm of the kind that resulted.

Of course, this is to be distinguished from a situation
where a defendant is aware of a particular vulnerability
or susceptibility of the plaintiff to psychiatric injury,
in which case the person of normal fortitude may be irrelevant.

The High Court's decision

The High Court unanimously dismissed Mrs Tame's
action as, amongst other reasons, the police officer who
had made a mistake on the accident report form could not
have reasonably foreseen that Mrs Tame would suffer from
a psychiatric injury as a result of that error.

In Annetts, the High Court unanimously upheld the
Annetts' claim, the majority finding that they should
be compensated for their psychiatric injury as it was a
reasonably foreseeable consequence of the negligence of
Australian Stations. Gleeson CJ stated at [38]:

No one would doubt the foreseeability of psychiatric
injury to the [Annetts] 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.

Conclusion

In claims for pure psychiatric injury based on negligence,
the standard elements of negligence must be shown, namely
a duty of care to take steps to reduce the risk of such
injury being suffered, a breach of that duty of care, causation
and reasonably foreseeable loss that is not too remote.

The High Court has replaced the arbitrary tests which
had applied to psychiatric injury in preference for a simple
test of reasonable foreseeability. That analysis is to
be undertaken with consideration of the relationships between
the parties, the physical and temporal proximity of the
plaintiff to the event that causes the psychological injury,
and what might be the expected response of a person of
normal fortitude. It is still the case that far fetched
or fanciful outcomes which are not reasonably foreseeable
will not give rise to a duty of care.

It follows that the abolition of the rules relating to
psychiatric injury will arguably have only a limited impact
upon the success of claims for such injuries. The requirements
of relational, physical and temporal proximity will be
relaxed to a degree by the Courts, but it appears likely
that only a few cases will be successful where a plaintiff
claims for pure psychiatric injury other than in circumstances
where:

  • the injury arose from a sudden shock
  • in circumstances where the plaintiff was present immediately
    at or in the aftermath of a precipitating event, and
  • the plaintiff was likely to be particularly traumatised
    due to the relationship with the primary victim of the
    negligence.

The greatest change affected by Tame and Annetts seems
to be in relation to elongated courses of events that have
caused psychiatric illness, such cases now appearing to
have greater prospects of success.

Civil law reform

After the High Court handed down its decision in Tame and Annetts,
Mr Justice Ipp submitted the final report of the Review
of the Law of Negligence (available at <http://revofneg.treasury.gov.au/content/review2.asp>).
The report recommends that the state of the law following
Tame and Annetts be promoted by a legislative statement
embodying the following principles:

  1. the mental harm suffered must consist of a recognised
    psychiatric illness
  2. a defendant will not owe a plaintiff a duty of care
    to avoid pure mental harm unless the defendant ought
    to have seen that a person of normal fortitude might,
    in the circumstances, suffer a recognised psychiatric
    illness if reasonable care was not taken
  3. for the purposes of (b), the circumstances of the
    case include:
  • whether the mental harm was as a result of nervous
    shock
  • whether the plaintiff was at the scene or witnessed
    the aftermath
  • whether the plaintiff witnessed the events or the
    aftermath with their own senses
  • whether there was any pre-existing relationship between
    the plaintiff and the defendant
  • the nature of the relationship between the plaintiff
    and the person killed, injured or put in peril.

The report also recommended that damages for economic
loss should only be recoverable for mental harm consequential
upon physical harm if the plaintiff suffered a recognised
psychiatric illness and it was foreseeable that the a person
of normal fortitude might suffer such harm.

A number of States and Territories have acted upon these
recommendations and passed legislation in those terms (these
changes will be addressed in a forthcoming Legal Briefing).
This has had a direct and immediate impact upon claims
seeking damages for pure psychiatric injury.

Application of Tame and Annetts

The general principles in Tame and Annetts have
also been applied in a number of other cases, particularly
with respect to the Court's comments regarding reasonable
foreseeability. Gleeson CJ pointed out that reasonable
foreseeability may be relevant to questions of the existence
and scope of a duty of care, breach of duty or remoteness
of damage, and emphasised that the fundamental process
in examining a defendant's conduct was its reasonableness
(at [8]). Gummow and Kirby JJ also noted the importance
of the analysis of the defendant's conduct in order
to reconcile the plaintiff's interest in protection
from harm with the defendant's interest in freedom
of action (at [183]).

McHugh and Hayne JJ considered reasonable foreseeability
was an 'undemanding' test, such that as long
as an injury was not a fanciful or far fetched result of
the particular negligence, it would be reasonably foreseeable.
The fact that they considered the test failed to take in
to account the reasonableness of the defendant's
conduct appears to be a strong factor in their conclusions
that the pre-existing rules in relation to psychiatric
injury should not be readily disregarded.

These comments focusing on the reasonableness of a defendant's
conduct have been applied in a number of negligence claims
for physical injury.

  • The NSW Court of Appeal in Rundle v State Rail
    Authority [2002] NSWCA 354, in finding that the
    plaintiff who was injured whilst squeezing through
    a window on a double-decker train to spray graffiti
    on the roof was not entitled to compensation, referred
    to the High Court comments in relation to reasonableness
    identified above. Applying those comments, the Court
    of Appeal found that the claim of the plaintiff did
    not accord with reason and so, although the injury
    he suffered was reasonably foreseeable, he should not
    recover damages.
  • Proprietors of Strata Plan 17226 v Drakulic [2002]
    NSWCA 381 was concerned with an action for damages when
    the plaintiff was attacked in the entrance foyer of the
    apartment building owned by the defendants. She sued
    the defendants as the lock on the security door was defective.
    The Court of Appeal referred to Gleeson CJ's comments
    on reasonableness in relation to negligence. It then
    concluded that, in the context of the extent to which
    control may have potentially been exercised over the
    assailant by the defendants, reasonableness would not
    have required the defendant to obtain that control.
  • In MA v Keane [2003] NSWCA 50, Filler JA (with
    whom Santow JA and Gzell J agreed) referred to the passage
    of McHugh J in Tame to emphasise the importance,
    when considering negligence, to take into account all
    reasonable conduct.

It therefore appears, on the basis of the initial application
of Tame and Annetts by superior courts in
Australia, that the concept of reasonable foreseeability
and the reasonableness of the conduct of a defendant, having
received considerable emphasis by the High Court, will
now receive greater attention, arguably to the benefit
of defendants.

DEFENDING CLAIMS

CASE PREPARATION

In defending a claim for compensation based on psychological
injury, thorough investigation and preparation is of vital
importance. In most of these cases the plaintiffs will
provide medical evidence that suggests they are suffering
from a psychiatric illness. Such evidence can generally
be tested in two ways.

Firstly, as in the majority of litigated matters regarding
personal injury, often the most effective means of challenging
a plaintiff's medical evidence is to demonstrate
that the facts upon which a diagnosis or opinion are based
are not accurate. Such information may be obtained through:

  • the plaintiff's employers, colleagues, friends
    and/or family who are prepared to discuss the matter
    frankly
  • video surveillance
  • access to the plaintiff's sick leave and other
    employment records and medical records (by issuing subpoenas
    or otherwise).

Secondly, alternative expert evidence can be obtained.
When seeking an alternative expert opinion, it is important
to bear in mind that medical experts who are known to give
favourable reports to defendants may not be as persuasive
to a court or tribunal as experts who provide reports to
both plaintiffs and defendants and have a reputation for
not giving reports more favourable to one or the other.

After an expert is selected specifically for the task
at hand, great care should be taken to brief the expert
with all available information about the plaintiff that
may be relevant to whether or not they suffer the injury
alleged. Any facts known about the plaintiff that may be
inconsistent with the history outlined in the plaintiff's
medical reports should be highlighted, as should any other
matters which may provide an alternative explanation for
the onset of the plaintiff's condition. Such experts
should also generally be provided with the medical reports
obtained by the plaintiff.
The questions posed to the expert should be carefully crafted to obtain evidence
on the important aspects of the claim, and may include a request to comment
on specific diagnoses reached by the plaintiff's doctors or other significant
opinions expressed.

CAUSATION ISSUES

An often overlooked basis for contesting a claim for damages
based on psychological injury is that such an injury was
the result of gradually developing processes in the plaintiff's
life which would have taken place regardless of whether
or not the tortious event had occurred, and so the element
of causation cannot be satisfied. In such a case, the event
is not the cause of the injury in the physical sense, but
an event which the plaintiff projects onto, to enable them
to cope with their already existing feelings (Hoffmueller
v Commonwealth (1981) 54 FLR 48).

An illustration of a claim for psychological injury being
defeated on this basis can be found in Wodrow v Commonwealth
of Australia (1993) 45 FCR 52 where Gallop and Ryan
JJ, after reviewing the medical evidence, made the following
finding:

We are not able to come to any other conclusion than
that when the [tortious event occurred] the plaintiff's
pre-existing personality traits had developed to such
a stage that the [event] did not contribute to, but [was]
rather the occasion for, the onset of the symptoms which
the underlying disease of the plaintiff's personality
would have produced in any event. That is not such a
cause as will give rise to a claim for damages. Where
a defendant's acts provide, as an interpersonal
cause, merely the reason why a person suffered detriment,
those acts will not always, in our opinion, provide a
causal relationship for legal purposes. [83]

This phenomenon is described by the psychiatrist Dr Rod
Milton as follows:

Many people are by nature anxious and worry about details.
They often cope well enough with life for years, particularly
with the support of a devoted spouse; but as they age
they become less resilient and are likely to respond
adversely to every day troubles and conflicts. These
people often become the subject of work-stress-based
work compensation claims in their mid-40s, but careful
analysis often shows that the particular response to
stress experienced at work and claimed to cause incapacity
was but an extension of previous personality patterns
as demonstrated over the years in supervisors' reports
or work attendance records.

This briefing was prepared by Andrew Berger and Andrew
Hughes of our Canberra office. For further information
please contact

Andrew Berger on tel (02) 6253 7405, e-mail <andrew.berger@ags.gov.au> or
Andrew Hughes on tel (02) 6253 7416 , e-mail <andrew.hughes@ags.gov.au>
or any of the following lawyers:

Sydney

Greg Kathner

(02) 9581 7568

Melbourne

Susan Pryde

(03) 9242 1426

Brisbane

Barry Cosgrove

(07) 3360 5647

Perth

Graeme Windsor

(08) 9268 1103

Adelaide

Sarah Court

(08) 8205 4231

Hobart

Peter Bowen

(03) 6220 5474

Darwin

Jude Lee

(08) 8943 1405


ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

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change of address details etc, Tel: (02) 6253 7052 or Fax:
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The material in this briefing is provided
for general information only and should not be relied
upon for the purpose of a particular matter. Please contact
AGS before any action or decision is taken on the basis
of any of the material in this briefing.

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