1. PRESENTER:  Michael Fotheringham, Partner Wednesday, 24 March 2010  www.griffinhilditch.com  mfotheringham@griffinhilditch.com Nervous Shock: A Shocking State of Affairs

2. 2 A person claiming for nervous shock seeks to recover damages for pure mental harm which they allege they have suffered as a result of another’s negligence. The claim is for pure mental harm, not harm arising out of any physical injury. These claims arise where a person has directly perceived an incident or its immediate aftermath that caused injury to a third person. What is Nervous Shock?

3. 3 Test The test to determine whether a duty of care is owed is: Whether it was reasonably foreseeable that the plaintiff would suffer a recognisable psychiatric illness as a result of the defendant’s action or inaction

4. 4 Key Concepts Sudden Shock and Direct Perception Sudden shock and direct perception were original elements of the test as to whether a duty of care arose to prevent nervous shock. “the sudden sensory perception – that is, by seeing, hearing or touching – of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognisable psychiatric illness.”

5. 5 Key Concepts Proximity Proximity was at times considered an element of the test of reasonable forseeability. Originally it was concerned with the physical proximity to an incident or its aftermath and was closely analogous to the concepts of sudden shock and direct perception. This concept has been expanded at common law to include relationship proximity.

6. 6 Key Concepts Normal Fortitude - Proximity Normal fortitude has been considered as a specific element of the reasonable forseeability test. Recognisable Psychiatric Illness Recovery for nervous shock is limited to persons who suffer a recognisable psychiatric illness. Emotional responses such as grief, sadness and distress are not recoverable in a claim for nervous shock.

7. 7 Common Law Mt Isa v Pusey The first case in Australia that allowed recovery for pure mental harm. Jaensch v Coffey The law of nervous shock was substantially expanded in the case of Jaensch v Coffey.

8. 8 Common Law Jaensch v Coffey - Continued The relationship between a plaintiff and the injured person; Proximity; Normal fortitude; Shock;

9. 9 Common Law – Continued Coates v Gio In Coates v Gio the Court of Appeal of New South Wales rejected a claim by the children of a man killed in a motor accident; The majority ruled that neither plaintiff sustained a recognisable psychiatric illness. The Court accepted that Australian authority did not uniformly require a plaintiff to be within sight or hearing of an accident or its aftermath, albeit no decided case had actually permitted recovery without both shock and presence at the scene or its aftermath.

10. 10 Common Law – Continued Pham v Lawson In Pham v Lawson the Full Court of the Supreme Court of South Australia upheld a ruling by Chief Judge Worthington that a mother had a good claim in damages for nervous shock in circumstances where the psychiatric illness was partly caused by the receipt of news from a policeman concerning the death of her daughter. It was further found that the shock was contributed to by observations she made of the accident scene from a distance of some kilometres whilst she was being conveyed to the hospital by police.

11. 11 Tame The Court found that the police officer did not owe Mrs Tame a duty of care. The court said “The primary duty of a police officer filling out such a report is to make available to his or her superiors, honestly and frankly, the results of the observations, enquiries and tests that were made. It would be inconsistent with such a duty to require the police officer to take care to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation and report.” Annells Case Common Law – Continued

12. 12 Legislation The majority of states and territories have enacted legislation in the area of nervous shock. Duty of Care The test for duty of care is codified in legislation as: Whether it was reasonably foreseeable that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care was not taken.

13. 13 The legislation sets out a number of factors that are to be considered in determining the question of duty of care. The court is to consider: whether the plaintiff suffered a sudden shock; whether or not they directly perceived the events; the relationship between the plaintiff and the person injured; and any pre-existing relationship between the plaintiff and the defendant. Legislation – Continued

14. 14 Relevant cases interpreting the legislation Anthony v Australian Native Landscapes Pty Ltd[2008] NSWDC 109 Burke v State of New South Wales[2004] NSWSC 725 Deborah Webber & Ors v West Lindfield Bowling Club Co-Op[2008] NSWDC 215 CSR Limited & Amcor v Thompson; Thompson v CSR Limited & Amcor[2003] NSWCA 329 Politarhis v Westpac Banking Corporation; Politarhis v Australian Central Credit Union Ltd[2008] SASC 296 Hegarty v Queensland Ambulance Service[2007] QSC 90 Ilosfai v Excel Technik Pty Ltd[2003] QSC 275

15. 15 Conclusion The test both at common law and under the various state legislation as to whether someone owes a duty of care to prevent mental harm is: “whether it was reasonably foreseeable that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care was not taken”. Factors to be taken into account when considering whether a duty of care exists include: whether the plaintiff suffered a sudden shock; whether or not they directly perceived the events; the relationship between the plaintiff and the person injured; and any pre-existing relationship between the plaintiff and the defendant.

16. The End