The law for psychiatric harm by secondary victims

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Critically analyse the way the courts have developed and limited the law in relation to claims for psychiatric harm by secondary victims

Introduction

There has been judicial comment in Australia that in relation to claims for psychiatric harm, the law has progressed haphazardly or pragmatically rather than logically or scientifically: [1]

“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 pragmatically rather than as logical applications of principle.”

The development of the common law in Australia in relation to secondary victims, particularly under the law of negligence, has seen a gradual liberalising or expansion of the categories for recovery in recent years, most notably in the High Court decisions of Tame and Annetts

[2]

and Gifford

[3]

. This has, to some extent, been in response to a traditional reluctance by the Courts to allow secondary victims to recover for mental due to a perceived flood of imaginary claims. [4]

The view used to be held that ‘nervous shock’ without physical symptoms was not compensable at law, but it has long been recognised that mental harm has the same status in torts law as physical harm. [5] A secondary victim is understood in this context to mean a person who suffers a ‘recognisable psychiatric injury’, [6] typically as a consequence of perceiving injury to another, but not necessarily at the impact scene or its aftermath.

The fear of an avalanche or flood of mental harm cases led to policy restrictions or control mechanisms being imposed, including that the secondary victim must suffer ‘sudden shock’, be a witness to the accident scene or its aftermath’, or be in a relationship having close ties of love and affection with the primary victim.

The view that that the conditions for recovery have been unduly restrictive and led to arbitrary decisions seems to have been exacerbated by a lack of predictability in the common law applying said control mechanisms, as well as by a lack of uniformity on the part of the State and Territory legislatures in responding to the ‘insurance crisis’ of 2002, which sparked fears that the law was moving too fast to award damages to new classes of plaintiff. [7]

The foregoing matters will be discussed under the following headings:

1. Requirement of Sudden Shock

2. Requirement of Proximity

3. Requirement of Relationship

4. Foreseeability – Person of ‘Normal Fortitude’

5. Statutory Restrictions

Conclusion.

1.
Requirement of Sudden Shock

The first control mechanism restricting recovery for both primary and secondary victims is the requirement that there can be no liability in the absence of a sudden shock to the nervous system. [8] The limitation can be traced back to Brennan J’s interpretation of the case law in Jaensch v Coffey [9] and has been applied in numerous subsequent decisions. [10] However, there are exceptions to the general principle such as the ‘work stress’ cases [11] and ‘fear for the future’ cases. [12] The shock must in reality be a psychiatric illness of a lasting and clinical nature. It is clear that from the 1970s judges have required plaintiffs to be suffering a ‘recgonisable psychiatric illness”, [13] (although McHugh and Callinan JJ in retain the use of “nervous shock” in Tame and Gifford [14] ), in order for the harm to be compensable. Medical consensus suggests that lasting damage does not occur in ‘normal’ individuals. [15] It is therefore inappropriate to insist that an immediate reaction such as a sudden sensory perception be a prerequisite to recovery. This was the conclusion reached by a majority of the High Court in Tame. [16] However, the sudden shock rule remains relevant as a factor in determining whether psychiatric injury was reasonably foreseeable, as subsequently confirmed by the Civil Liability Acts. [17] The sudden shock rule is perhaps a striking example of the pragmatic and unscientific development of the common law. It is possible that this principle may yet operate to deny recovery or at least will operate unpredictably, turning upon the particular facts and evidence of each case.

2.
Requirement of Proximity

The common law has, however, gradually relaxed the restriction that, in order to recover, the plaintiff be present at the impact scene. [18] That process began in 1925 with Hambrook v Stokes in which a mother recovered for shock she suffered from fear for her own and her children’s safety from a runaway lorry. [19] The requirement that the plaintiff had to be present at the scene and witness the accident was gradually extended to witnessing the aftermath at the scene, extended to witnessing the aftermath at hospital during the immediate post-accident treatment. [20] The High Court suggested in Jeansch [21] that absence by the relative from the accident scene might not be a bar to recovery. In Annetts, [22] the Court finally removed the direct perception requirement as a bar to recovery. The aftermath requirement would always be a limitation in borderline cases, penalising family and friends who are too affected by shock and grief to go to the scene or a bar where there is no aftermath or no scene to perceive (as in Annetts, in which the body was not discovered at the time of the shocking event). [23]

However, the gradual innovation of the common law has been complicated by the legislative response to the insurance crisis of 2002. The Civil Liability Acts (and variants) were legislated in each jurisdiction as a response to perceptions that the common law was moving too fast to allow new classes of plaintiffs to recover, including secondary victims. [24] Earlier legislation [25] provided that family members (other than parents, spouse and close family) were required to be within sight or hearing of the accident in order to recover. [26] Under the common law, that requirement was effectively removed as a condition for recovery by the High Court in Annetts and Gifford. At the time of the Gifford decision the Civil Liability Act 2002 took effect which excludes compensatory recovery for a person who is not a witness at the scene nor a close family member. [27] Yet similar provisions of other States do permit recovery for a plaintiff who witnessed the immediate aftermath [28] , or who was ‘present at the scene.’ [29] The civil liability provisions differ across jurisdictions creating disunity and much less predictability across Australia for secondary victims who suffer mental harm.

3.
Requirement of Relationship

Another limiting factor is that the plaintiff must have a close tie of relationship or care with the primary victim. Relationship is likely to lead to a conclusion in which there was foreseeability (which appears to be the predominant view in the UK authorities). [30] However, it is just as foreseeable that a harm could be suffered by those unrelated to the primary victim. Thus in Australia, Deane J in Jaensch was of the view that close ties of love and affection should override the direct perception limitation on reasonable foreseeability. [31] It is clear from Gifford that the absence of a pre-existing relationship is not a bar to recovery. [32] Involuntary participants is another category in which the shock stems from an apprehension that the plaintiff is the involuntary cause of injury to another. [33]

Legislative reforms introduced as a result of the insurance crisis of 2002 has complicated the picture. For example, the Civil Liability Act 2002 (NSW) restricts the class of plaintiffs to a “close member of the family” (parent, spouse, partner, child, stepchild, brother, sister, half-brother, half-sister, step-brother/sister) [34] , in contrast with earlier legislation which said that the defendant’s liability extended to those cases, and also to “any other member of the family” who saw or heard the plaintiff injured or put in peril. [35] Yet, somewhat haphazardly, the categories of potential claimants differ across jurisdictions. In Victoria, for example, the plaintiff must be or have been in “a close relationship with the victim”. [36] Yet “close relationship” is not defined, leaving it open for the courts to interpret the categories more expansively beyond family relationships to perhaps those with “close ties of love and affection” [37] as giving rise to a duty of care.

4.
Foreseeability – Person of ‘Normal Fortitude’

The doctrine that the shock must have been foreseeable to a person of normal fortitude acts as a control mechanism against unduly burdening human activity by indiscriminate claims of exposing others to the risk of mental harm. Such claims could interfere with otherwise tolerable conduct, such as making a loud noise which could cause a person peculiarly vulnerable to suffer shock. [38] Yet the onus of proving a special vulnerability lies on the defendant [39] who takes the victim as they are found. [40] However, the normal fortitude test has been criticised as unscientific and impracticable to apply, as it depends upon arbitrary judge-made distinctions as to what is ‘normal’ along a ‘slippery slope’ of psychiatric abnormality. [41] Yet under negligence law the foreseeability test is necessarily concerned with a balancing exercise by the Courts to assess whether a reasonable person would recognise an act or omission as posing an unreasonable risk of harm to a normal person [42] . The Courts do not insist upon foreseeing the specific kind of psychiatric damage, rather, if compensable mental harm is foreseeable, the predisposition is necessarily included. [43] Thus the High Court in Tame clarified the fortitude principle by establishing that the test is merely one consideration within reasonable foreseeability. [44] Whilst that consideration did not alter the outcome in Tame, it seems a sensible solution to a complex problem.

5.
Statutory Restrictions

However, statutory law has returned to the old test in respect of ordinary fortitude. At the time of the Tame decision in 2002 there was a nationwide concern as to the way in which the law of negligence was operating in personal injury cases, with the effect of driving up insurance premiums and making it difficult to obtain liability cover (eg. in the practice of medicine). The Commonwealth Government appointed a panel to review the law of negligence and the resultant report recommended greater restrictions to recovery in some areas. In the area of foreseeability of mental harm to primary and secondary victims the panel urged that:

“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 normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken.” [45]

Civil liability legislation in six Australian jurisdictions subsequently adopted a general principle which closely resembled this formulation. [46] The principle that if the defendant knows or ought to know that the plaintiff is a person of less than normal fortitude is specifically preserved. However, the re-formulation by eh High Court in Tame is pointedly ignored. The change in the law effected is to limit the principle that where a plaintiff suffers personal injury, there can be recovery for all consequential harm, physical or mental. That limitation had not previously been imposed by the common law and is viewed as a way of reducing the size of damages awards. [47] The result of these legislative reforms in response to the insurance crisis is that Australian personal injury law restricts recovery to claimants previously classified by the common law as deserving in a range of situations, but in a way which is far from consistent across jurisdictions.

Conclusion

In many ways, the common law has developed incrementally in the area of psychiatric harm by showing innovation. For example, in Tame and Gifford in removing the proximity requirement and focussing more on the relationship between primary and secondary victim as the touchstone for reasonable foreseeability. In that sense, the common law has come a long way since the Coultas decision in recognising the particularly devastating nature of psychiatric injury. However, such developments are coloured by the response of the legislatures to the insurance crisis of 2002. The Civil Liability Acts across the Australian jurisdictions are characterised by a lack of consistency and uniformity in approach, and in some cases went beyond the recommendations of the panel Report. For example, seemingly outdated legal rules such as the ‘sudden shock’ requirement persist, and a person unrelated to the plaintiff present at the aftermath may be permitted to recover damages for psychiatric harm in Tasmania, but not in New South wales. This disunited and unsatisfactory state of Australian law will await a legislative solution in the future, and will continue to pose challenges for the Courts as they proceed “step by cautious step” to develop the foregoing policy considerations in ways which will deliver appropriate and just outcomes for deserving secondary victims.

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[47] The statutory preference for the term ‘recognised’ rather than ‘recognisable psychiatric illness’ is a further