Jaensch v Coffey
155 CLR 54954 ALR 417
(Judgment by: DAWSON J)
Jaensch
v Coffey
Judges:
GIBBS CJ
MURPHY J
BRENNAN J
DEANE J
DAWSON J
Subject References:
Negligence
Judgment date: 20 August 1984
Adelaide
Judgment by:
DAWSON J
The comprehensive examination of the authorities by both Brennan J. and Deane J. in their judgments makes it possible for me to state my conclusion shortly.
Development of the law in this country and elsewhere has made it plain that the views expressed in Victorian Railways Commissioners v. Coultas (1888) 13 App Cas 222 no longer represent the law and that the decision of this Court in Chester v. Waverley Corporation (1939) 62 CLR 1 must be confined to its own facts. It is now clear that damages are recoverable in a variety of circumstances for mental injury caused by nervous shock as a result of negligence. Those circumstances include, in my view, the circumstances of this case.
The basic test of liability in negligence for nervous shock is whether injury of that kind was reasonably foreseeable in all the circumstances of the particular case: Overseas Tankship (UK) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound (No. 1) [1961] AC 388 ; Chapman v. Hearse (1961) 106 CLR 112 , at pp 120-121. Whether that is the sole test or whether there is some other limit upon the recovery of damages for nervous shock which is based upon conceptions of public policy - referred to by Deane J. in this case as the proximity test - remains a matter of controversy. See McLoughlin v. O'Brian [1983] 1 AC 410 . But it is not necessary, in my view, to settle that controversy for the purpose of deciding this appeal. It is now established that it is no bar to liability that the nervous shock is caused not by the plaintiff's fear for his or her own safety but by the apprehension of some danger or harm to another, at least where that other is a member of the plaintiff's family: Hambrook v. Stokes Bros. [1925] 1 KB 141 . Nor is it any longer necessary that the plaintiff should be present at the accident which results in the nervous shock. It is sufficient if the plaintiff observes the consequences: Storm v . Geeves (1965) Tas SR 252; Mount Isa Mines Ltd. v. Pusey (1970) 125 CLR 383 . Moreover, those consequences need not be observed at the scene of the accident. They may be observed as part of the aftermath and the aftermath may extend to the journey by ambulance to a hospital and to the scene at the hospital itself: Benson v. Lee (1972) VR 879; McLoughlin v. O'Brian.
These extensions of the law upon this subject may merely be in recognition of the fact that
"... the limits of liability for injury by nervous shock are to be determined only by a proper judicial application of the general test of reasonable foreseeability of that kind of injury in all the circumstances of the particular case."
Storm v. Geeves per Burbury C.J. at pp 261-262.
See also McLoughlin v. O'Brian per Lord Bridge of Harwich at pp 439-443. Such an approach flows from the decision in The Wagon Mound (No. 1).
On the other hand, there appear to be strictures upon liability for the infliction of nervous shock which are not readily explicable in terms of foreseeability and which may be seen to be the result of the application of policy considerations.
For example, if no action will lie in negligence against a defendant who carelessly injures himself and thereby inflicts nervous shock upon the plaintiff, there would seem to be a limit imposed which is outside the test of foreseeability. Similarly, the test of foreseeability may be thought to have a limited application if, as appears to be accepted, there is no liability for shock brought about by communication by a third party and not by the sight or sound of an accident or its consequences .
It is the existence of strictures of this kind that lend support to the view that, in order to be compensable, nervous shock must not only be reasonably foreseeable; it must also fall within bounds set as a matter of policy. See McLoughlin v. O'Brian per Lord Wilberforce at pp 420-422.
However, as I see no need in this case to decide between competing views, I am content to express my agreement that the events which caused nervous shock to the plaintiff were part of the aftermath of the accident resulting from the defendant's negligence. I agree with the view expressed by Deane J. that the fact that those events were a combination of the plaintiff's own observations and what she was told by others does not preclude the recovery of damages. I also agree with Deane J. that, having regard to the findings of the trial judge, there is no force in the submission that the plaintiff's mental injury can be explained by reference to an abnormal susceptibility on her part.