Foreseeability of harm and normal fortitude
In Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35, the High Court of Australia held that a plaintiff claiming for pure psychiatric injury does not need to prove that they were a person of normal fortitude. However, their mental fortitude is still relevant to whether it was reasonably foreseeable that the distressing event would cause a psychiatric illness. Ms Tame suffered a psychiatric injury from discovering a police officer had recorded her blood alcohol level as 0.14 when that was actually the other driver’s result. The error was soon corrected and never acted on. That was found not to be reasonably foreseeable and her claim was dismissed.
In contrast it was reasonably foreseeable that Mr and Mrs Annetts could suffer psychiatric injury when, due to a failure of their son’s employer to use a safe system or work, their son went missing for months in the outback, with a considerable search effort in which his parents where involved, his blood stained hat was found, and then later his body. Mr Annetts identified his son from a photo of his skeleton. It is therefore necessary to prove that it was reasonably foreseeable that they could suffer psychiatric injury from the distressing event caused by the defendant and they were successful in proving that. If the defendant knows or ought to know the plaintiff has less than normal mental fortitude, that will make it more likely that it would be reasonably foreseeable that a distressing event could cause psychiatric injury.
Sudden shock
In Annetts, Gleeson CJ at [36] said:
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.
Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35
The distressing experience therefore does not necessarily need to be sudden to allow a plaintiff to claim.
Direct perception
In Annetts, Gaudron J at [51] said:
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.
Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35
This makes it clear that there simply is no direct perception rule. The ‘filter’ to allow only some potential plaintiff’s to claim is their proximity to the distressing event. Their relationship with a person killed or injured is what is relevant. Generally a spouse, partner, parent or child of the injured or killed person may well be proximate enough not to be ruled out from claiming. The principle is reasonable foreseeability that they would be in the category of person’s injured by the distressing event. You will not be able to claim for seeing a distressing event on the TV news that happened to people you do not know and have never met.
Distressing experience versus caring for injured person later
In Skea v NRMA Insurance Limited [2005] ACTCA 9 at [111], the ACT Court of Appeal held that:
A person is not entitled to damages from a tortfeasor if that person suffers a psychiatric illness by reason of that person caring for a person who has been injured by reason of the tortfeasor’s negligence.
Skea v NRMA Insurance Limited [2005] ACTCA 9 at [111]
However, Skea makes it clear that where the distressing experience causes a psychiatric injury, and that injury is then aggravated by having to care for an injured family member, the additional aggravation will be compensable if:
- it was a reasonably foreseeable consequence of the original injury and not a novus actus interveniens (meaning independent, or not caused by, intervening act); or
- the extent of the injury caused by the initial distressing experience and the caring for the injured family member cannot be disentangled (the defendant bears the onus of proof to disentangle the damage).