LWZ116 Lecture Notes - Lecture 8: Calveley, Grave Danger, Personal Injury
Lecture 8
Torts
Lecture 7B: Psychiatric Injury
KIND OF DAMAGE – PSYCHIATRIC INJURY
Remoteness draws a theoretical distinction between damage that is of the same kind as that which is
reasonably foreseeable – for which the D is liable even though its extent may have been unforeseeable –
and damage that is of a different kind from that which is reasonably foreseeable – for which the D is not
liable.
This makes PI an issue of remoteness – the concern is with the type/kind of injury
suffered.
However, PII sits in an unusual place, and is dealt with as both issue of
The CL has traditionally been reluctant to recognise pure psychiatric injury as a compensable
kind of harm/damage.
This was because of fear of a ‘flood’ of claims (classic floodgates argument); plus
concerns about possible fake claims
The initial approach of the common law was to hold that pure psychiatric injury (‘nervous
shock’) was not a kind of damage recognised by the common law:
See Victorian Railways Commissioners v Coutas (1888) 13 App Cas 222
The law concerning liability for negligent infliction of ‘nervous shock’ (as it was called) began
to change after Bourhill v Young, with damage for ‘psychiatric’ losses being covered in specific
situations.
Hay (or Bourhill) v Young [1943] AC 92
[[Facts: The P had just got off a buss when a motorcyclist speed past on the other side
of the bus and collided with a car at an intersection 15 m away and was killed. The P
heard a crash and the noise of the impact. After the cyclist’s body was removed the P
saw blood on the roadway. About a month later, the P’s child was stillborn – she
attributed this to the shock and reaction to the event. She sued the cyclist’s estate.]]
Held:
‘This raises a serious additional difficulty in the cases where it has to be
determined not merely whether the act itself is negligent against someone but
whether it is negligent vis-à-vis the plaintiff. This is a crucial point in cases of
nervous shock. Thus in the present case John Young was certainly negligent in an
1
find more resources at oneclass.com
find more resources at oneclass.com
Lecture 8
Torts
issue between himself and the owner of the car which he ran into, but it is another
question whether he was negligent vis-à-vis the Appellant.’
Finding:
‘I cannot accept that … the reasonable hypothetical observer could reasonably
have foreseen, the likelihood that anyone placed as the Appellant was, could be
affected in the manner in which she was.
This case opened the way for recovery for psychiatric injury in limited cases, though there are
still many problems regarding the extent of the duty that is owed.
The first Australian HC decision to recognise the existence of a DoC in regards to PPI was Mt
Isa Mines v Pusey:
Mt Isa Mines v Pusey (1970) 125 CLR 383
[[Facts: The P was employed by the D an engineer. On a day when the P was working
in the powerhouse the two electricians carried out a test on a switchboard in the
powerhouse using for that purpose a multi-meter. Because of their mishandling of this
instrument a short circuit of high tension current was caused with the result that the two
electricians were severely burned by an intense electric arc. The P went to the rescue of
the electricians, one of whom later died. Over the course of four week the P developed
PPI and sued the employer
Held: The court held that PPI could amount to a legally recognised form of damage,
however recovery was limited to those circumstances where an identifiable psychiatric
or psychopathological disorder was diagnosed.
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.’
‘The question is was it reasonably foreseeable that an accident of that kind, if it
occurred, might have consequences for somebody of the kind that it had for the
plaintiff.’
Here harm of the kind suffered by P foreseeable
2
find more resources at oneclass.com
find more resources at oneclass.com
Lecture 8
Torts
GENERAL PRINCIPLES - LEADING CASES
Whether a Duty of Care will be owed in relation to a Pure Psychiatric Injury is now governed by
the same general principles as other negligence actions:
Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
These cases clearly established that the main test for establishing a duty is foreseeability of
shock:
The question is whether that kind of injury (pure psychiatric injury) was reasonably
foreseeable by the defendant when the breach occurred
Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Jaensch v Coffey (1984) 155 CLR 549
There must be a ‘recognisable psychiatric illness’ suffered, not merely an emotional
upset:
Mt Isa Mines v Pusey (1970) 125 CLR 383
oBy themselves, mere grief and sorrow are not compensable:
Scnieder v Eisovitch [1960] 1 All ER 169
oSerious and prolonged psychological disturbance is required, not ordinary
annoyance or upset:
Mustapha v Culligan of Canada [2008] SCC 27
This severe psychological damage is treated like physical injury.
Page v Smith [1996] 1 AC 155
1) REASONABLE FORESEEABILITY
The foreseeability of the P’s PPI must be assessed as at the time of the negligent act:
Koehler v Cerebos (Australia) Ltd (2002) 211 CLR 317
The test for reasonable foreseeability in claims for PPI involves a consideration of:
Normal Fortitude; (courage/determination)
Direct Perception;
Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
3
find more resources at oneclass.com
find more resources at oneclass.com
