Gifford v Strang Patrick Stevedoringpty Ltd

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh J,Gummow,Kirby JJ,Hayne J,Callinan J
• Judgment Date: 18 June 2003
• Neutral Citation: [2003] HCA 33,2003-0618 HCA A
• Date: 18 June 2003
• Court: High Court
• Docket Number: Matter No S111/2002 Matter No S112/2002 Matter No S113/2002 S111/2002, S112/2002 and S113/2002

[2003] HCA 33

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ

Matter No S111/2002

Matter No S112/2002

Matter No S113/2002

S111/2002, S112/2002 and S113/2002

Darren Gifford

Appellant

and

Strang Patrick Stevedoring Pty Limited

Respondent

Kelly Gifford

Appellant

Strang Patrick Stevedoring Pty Limited

Respondent

Matthew Gifford

Appellant

Strang Patrick Stevedoring Pty Limited

Respondent

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4(1)(b).

Workers Compensation Act 1987 (NSW), s 151P.

Gifford v Strang Patrick Stevedoring Pty Ltd

Torts — Negligence — Psychiatric injury — Employee killed in workplace accident — Whether employer owed duty of care to children of deceased employee — Whether reasonable care required to guard against the risk of psychiatric injury — Whether duty existed at common law — Whether the existence of duty was negated by s 4(1)(b) of Law Reform (Miscellaneous Provisions) Act 1944 (NSW).

1 Gleeson CJ. These three appeals, which were heard together, arise out of claims for damages for negligently inflicted psychiatric injury brought by the children of a man who was killed in an accident at work. The issue is whether the man's employer owed a duty of care to the children.

Gleeson CJ

2 The respondent to each appeal, a stevedoring company, employed the late Mr Barry Gifford, who was crushed to death by a forklift vehicle. Negligence on the part of the driver of the vehicle, who was also an employee of the respondent, and on the part of the respondent itself, was alleged, and was admitted. At the time, the appellants were aged 19, 17 and 14 respectively. They did not witness the accident. They were all informed of what had occurred later on the same day.

3 The appellants claim to have suffered psychiatric injury in consequence of learning of what had happened to their father. This aspect of their claims has not yet been determined. A similar claim by the mother of the appellants failed upon the ground that she had suffered no psychiatric injury, but had merely been affected by normal grief of a kind that did not give rise to an entitlement to damages. Her appeal against that decision was dismissed1.

4 In the District Court of New South Wales, the claims of the appellants were dismissed upon the ground that, by reason of s 4(1)(b) of theLaw Reform (Miscellaneous Provisions) Act 1944 (NSW) (‘the Act’), the respondent was under no liability for the ‘nervous shock’ allegedly suffered by the appellants, because their father had not been killed, injured, or put in peril within their sight or hearing2. The New South Wales Court of Appeal (Handley and Hodgson JJA, Ipp AJA) considered that the respondent's reliance upon s 4(1)(b) was misplaced. However the Court of Appeal reached the same ultimate conclusion as the primary judge upon the ground that, because the appellants had merely been told about the incident, and did not directly perceive either the event that resulted in the death of their father or its aftermath, then there was no duty of care at common law.3

5 Since the decision of the Court of Appeal, this Court has held, inTame v New South Wales and Annetts v Australian Stations Pty Ltd4, that direct perception of an incident or its aftermath is not in all cases a necessary aspect of

a claim for damages for negligently inflicted psychiatric injury. Accordingly, it will be necessary to reconsider the claims of the appellants in the light of that decision. If it is concluded that the Court of Appeal was in error in deciding that the respondent owed no duty of care to the appellants at common law, it will then be necessary to deal with the respondent's Notice of Contention, which seeks to support the dismissal of the appeals upon the ground favoured by the trial judge, that is to say, s 4(1)(b) of the Act. In that connection, the appellants rely upon an argument, rejected both at first instance and in the Court of Appeal, to the effect that the operation of s 4(1)(b) of the Act is displaced by s 151P of the Workers Compensation Act 1987 (NSW) (‘the Workers Compensation Act’).

6 In the event that the appellants succeed, the matter will have to be remitted to the District Court for the determination of the outstanding issues, including the issue that was fatal to the claim of the appellants' mother.

The common law duty of care

7 The Court of Appeal decided against the appellants on the ground that there can be no liability at common law for damages for mental injury to a person who is told about an horrific accident or injury to a loved one but does not actually perceive the incident or its aftermath5. That proposition is inconsistent with the reasoning of this Court in Tame and Annetts, and cannot stand with the actual decision in Annetts6. It does not follow, however, that the circumstance that the appellants were not present when their father suffered his fatal injury, and did not observe its aftermath, is irrelevant to the question whether the respondent owed them, as well as their father, a duty to take reasonable care to prevent injury of the kind they allegedly suffered.

8 For the reasons I gave inTame and Annetts, I consider that the central issue is whether it was reasonable to require the respondent to have in contemplation the risk of psychiatric injury to the appellants, and to take reasonable care to guard against such injury7. Relevant to that issue is the burden that would be placed upon those in the position of the respondent by requiring them to anticipate and guard against harm of the kind allegedly suffered by the appellants.

9 As the facts inTame illustrated so vividly, just as it would place an unreasonable burden upon human activity to require people to anticipate and guard against all kinds of foreseeable financial harm to others that might be a consequence of their acts or omissions, so also it would be unreasonable to require people to anticipate and guard against all kinds of foreseeable psychiatric injury to others that might be a consequence of their acts or omissions. In the case of Mrs Tame, her personal susceptibility raised an additional problem of foreseeability. However, 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. The limiting consideration is reasonableness, which requires that account be taken both of interests of plaintiffs and of burdens on defendants. Rejection of a ‘control mechanism’, such as the need for direct perception of an incident or its aftermath, originally devised as a means of giving practical content to that consideration, does not involve rejection of the consideration itself.

10 In its capacity as an employer, the respondent was under a duty of care towards the father of the appellants. The question is whether, additionally, it was under a duty of care which required it to have in contemplation psychiatric injury to the children of its employee, and to guard against such injury. The relationship of parent and child is important in two respects. First, it goes to the foreseeability of injury. That a child of the age of the various appellants might suffer psychiatric injury in consequence of learning, on the day, of a terrible and fatal injury to his or her father, is not beyond the ‘common experience of mankind’8. (The fact that all three of the victim's children are said to have suffered psychiatric injury might give rise to some questions for the experts on a new trial, but is not presently relevant). Secondly, it bears upon the reasonableness of recognising a duty on the part of the respondent. If it is reasonable to require any person to have in contemplation the risk of psychiatric injury to another, then it is reasonable to require an employer to have in contemplation the children of an employee.

11 InJaensch v Coffey9, Gibbs CJ said:

‘Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recovery.’

12 Not all children have a close and intimate relationship with their parents; and it may be that, even when parents are killed in sudden and tragic circumstances, most grieving children do not suffer psychiatric injury. However, as a class, children form an obvious category of people who might be expected to be at risk of the kind of injury in question. Where there is a class of person, such as children, who are recognised, by the law, and by society, as being ordinarily in a relationship of natural love and affection with another class, their parents, then it is not unreasonable to require that an employer of a person in the second class, whose acts or omissions place an employee at risk of physical injury, should also have in contemplation the risk of consequent psychiatric injury to a member of the first class.

13 Subject to the matter next to be considered, I would conclude that the respondent owed a duty of care to the appellants.

Section 4(1)(b)

14 Section 4 of the Act is set out in...