Tame v New South Wales

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron J,McHugh J,Gummow,KIRBY JJ,Hayne J,Callinan J
• Judgment Date: 05 September 2002
• Neutral Citation: [2002] HCA 35,2002-0905 HCA A
• Court: High Court
• Docket Number: S83/2001
• Date: 05 September 2002

Clare Janet Tame

Appellant

and

The State of New South Wales

Respondent

Leslie Annetts & Anor

Applicants

and

Australian Stations Pty Limited

Respondent

[2002] HCA 35

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

S83/2001

P97/2000

HIGH COURT OF AUSTRALIA

Tame v New South Wales

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

Annetts v Australian Stations Pty Limited

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

Representation:

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

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

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

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

ORDER

Appeal dismissed with costs.

1. Application for special leave granted.

2. Appeal allowed.

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

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

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

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

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

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

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

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

7 The case of Mrs Tame provides a good example of the practical consequences of recognition of a general duty to take care not to cause emotional disturbance to other people. It was common ground in argument that, save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness 4. Bearing in mind that the requirement of causation is satisfied if a defendant's conduct is a cause of the damage complained of, and the manifold circumstances in which one person's conduct may be a factor in inducing an emotional response in another, the consequence of imposition of such responsibility would be to impose an unacceptable burden on ordinary behaviour. Even accepting that recognisable psychiatric illness is a

necessary condition of a plaintiff's claim, the development by Mrs Tame of a condition that was diagnosed in 1995 as psychotic depressive illness, in consequence of being informed by her solicitor, in 1992, that a police officer, in 1991, had made a clerical error in filling out an accident report form, suggests the implications of the imposition of a duty of the kind in question. It came to the notice of Mrs Tame, in circumstances that most people would find harmless, or at worst mildly annoying, that some mistaken information to her discredit had been communicated by one person to another. Communication of information, whether in the form of official reports, news, business dealings, or private conversation or correspondence, will often distress a person to whom such information is communicated, or some other person who later becomes aware of the communication. Mrs Tame's case shows how such distress may develop into psychiatric illness. How are people to guard against such a possibility? What does the law require by way of care to avoid it? In what circumstances will the law impose damages for lack of care

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

9 Lord Atkin, in Donoghue v Stevenson5, spoke of the effect of acts or omissions on ‘persons who are so...