Jaensch v Coffey

155 CLR 549
54 ALR 417

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(Judgment by: BRENNAN J)

Jaensch
v Coffey

Court:

Judges: GIBBS CJ
MURPHY J
BRENNAN J
DEANE J
DAWSON J

Subject References:
Negligence

Judgment date: 20 August 1984

Adelaide

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Judgment by:
BRENNAN J

Mrs Coffey had had an unhappy life until she met and married her husband, Allan. It was a happy marriage, and a baby was born to them in February 1979, a few months before Allan's accident. He was a policeman in Adelaide. In the early evening of 2 June 1979 he was on duty riding his motorcycle when he collided with a motor vehicle driven by Mr Jaensch. Mr Jaensch's careless driving was the sole cause of the collision. Allan was seriously injured. He was taken by ambulance to the Royal Adelaide Hospital. Two police officers brought the news to Mrs Coffey. She was at home, away from the scene of the accident. The police brought her to the hospital where she saw Allan in the casualty section in severe pain. She waited while Allan was taken to the operating theatre. As he was being wheeled back from the theatre "his hip popped out again". He was taken back to the theatre. After he emerged again, he complained repeatedly of pain in his stomach. Again he was taken to the theatre and a tear in his liver was found. Mrs Coffey did not know why he had been taken to the theatre on this occasion. She stayed at the hospital and saw what was happening to Allan until a doctor advised her to go home to sleep. He told her that Allan was "pretty bad". She went to stay with friends. At 5.30am a doctor rang. He said, "Allan is in intensive care now.

We don't know how he is going to be but we will keep in contact". At 8.30am she had a call from the intensive care unit. She was told that there had been a change for the worse and she was asked to get up to the hospital as quickly as possible. When she arrived at the hospital, a doctor told her that Allan had kidney problems and that his liver was damaged. She stayed much of the day. She saw Allan with "all these tubes coming out of him". She said she was "scared that he was going to die and that all my security had been washed down the drain and I was just so scared and so resentful to the other person that caused the accident". Bollen J., who said that she "needed the security of a safe and affectionate relationship", believed that statement. When Mrs Coffey left the hospital that evening, she thought Allan was going to die. She first realized that Allan would survive three to four weeks after the accident.

After her experience at the hospital, Mrs Coffey suffered severe anxiety and depression. Her psychiatric condition caused gynaecological problems and a hysterectomy was later performed. Bollen J. found "that the things which she saw and heard on the night of 2nd/3rd June, 1979 and during 3rd June after she had gone to the hospital in response to a telephone call at about 8.30 a.m. caused her psychiatric illness - anxiety and depression". Although Mrs Coffey's early life had predisposed her to anxiety and depression, his Honour found that she "was a person of normal fortitude". His Honour also found that "the wrong-doer could foresee that a wife, hearing of the accident, would go to hospital, wait at the end of the telephone and suffer mental shock at what she saw and heard". These findings were made in an action in the Supreme Court of South Australia brought by Mrs Coffey against Mr Jaensch. She recovered a judgment for $37,563.16 damages in negligence for nervous shock and damages for loss of consortium and interest. Judgment was entered for a total amount of $48,003.16. An appeal was brought to the Full Court of the Supreme Court, but the award of general damages for nervous shock was left undisturbed. The appellant, Mr Jaensch, appeals to this Court, contending that he owed no duty of care to Mrs Coffey and that he is not liable in damages for negligence occasioning nervous shock.

A century ago psychiatric illness, without more, was not a form of harm or damage for which damages for negligence could be recovered: Victorian Railways Commissioners v. Coultas (1888) 13 App Cas 222. But at least for the last half-century "neurasthenic breakdown amounting to psychiatric illness" has been held to be "without more ... a form of harm or damage sufficient for the purpose of any action on the case in which damage is the gist of the action, ... supposing that the other ingredients of the cause of action are present": per Dixon J. in Bunyan v. Jordan (1937) 57 CLR 1 , at p 16. The term "nervous shock" has been used to describe that form of damage, although the term may not be an accurate medical description of the range of psychiatric illnesses which it is intended to cover - "any recognizable psychiatric illness" was the description used by Lord Denning M.R. in Hinz v. Berry [1970] 2 QB 40 , at p 42, and cited by Windeyer J. in Mount Isa Mines Ltd. v. Pusey (1970) 125 CLR 383 , at p 394, and that description must be right. Compensation is awarded for the disability from which the plaintiff suffers, not for its conformity with a label of dubious medical acceptability. The term "nervous shock" is useful nevertheless as a term of art to indicate the aetiology of a psychiatric illness for which damages are recoverable in an action on the case when the other elements of the cause of action are present. Thus Walsh J. in Pusey's Case (at p 414) referred to "all forms of mental or psychological disorder which are capable of resulting from shock" (emphasis added). It will be necessary to consider presently the aetiology of nervous shock, but first the other elements of the cause of action should be mentioned.

A plaintiff must prove that a psychiatric illness for which damages are claimed has been caused by the defendant's act or omission: Chapman v. Hearse (1961) 106 CLR 112 , at p 122. Reasonable foreseeability of the damage is insufficient if the chain of causation is interrupted. A defendant is not liable if a novus actus intervenes between the defendant's conduct and the damage complained of: McKew v. Holland & Hannen & Cubitts [1969] 3 All ER 1621 , at p 1623.

A plaintiff must also prove that an act or omission which caused the plaintiff's psychiatric illness was done or omitted in breach of a duty of care owed by the defendant to the plaintiff. Where the psychiatric illness is caused by perceiving the consequences of the defendant's carelessness - typically a physical injury inflicted on another - it is not sufficient for the plaintiff to prove that the defendant has failed in his duty of care to that other. He must prove that the defendant's carelessness was in breach of a duty owed to the plaintiff. The respective duties of care owed to the plaintiff and to the other person and the causes of action arising from their breach are independent one of the other. It is now settled law that the duty owed to one is not to be regarded as secondary to or derived from the duty owed to the other: see per Lord Wright in Hay or Bourhill v. Young [1943] AC 92 , at p 108 and Scala v. Mammolitti (1965) 114 CLR 153 , at p 159.

Reasonable foreseeability determines the existence of the duty of care and the measure of damages recoverable for its breach. In Bourhill v. Young Lord Russell of Killowen said, at p 101:

"In considering whether a person owes to another a duty a breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. This consideration may play a double role. It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, i.e., to the question of compensation not to culpability, but it is also relevant in testing the existence of a duty as the foundation of the alleged negligence, i.e., to the question of culpability not to compensation."

Referring to this passage of his Lordship's speech, the Judicial Committee in Overseas Tankship (UK) Ltd. v. Morts Dock & Engineering Co Ltd. (The Wagon Mound.) (No 1) [1961] AC 388 said, at p 426:

"We have come back to the plain common sense stated by Lord Russell of Killowen in Bourhill v. Young (1943) A.C.92, 101. As Denning L.J. said in King v. Phillips [1953] 1 QB 429 , 441: 'there can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock.'"

In Mount Isa Mines Ltd. v. Pusey, the criterion of reasonable foreseeability was applied in determining the existence of a duty owed to a plaintiff who had suffered a psychiatric illness as the result of going to the aid of fellow employees who had sustained gruesome burning injuries: see per Barwick C.J. at pp 389-390, McTiernan J. at p 391, Menzies J. at p 392, Windeyer J. at pp 395,397,402 and Walsh J. at pp.413-415. The criterion of reasonable foreseeability is not a narrow test. In Chapman v. Hearse this Court said, at pp 120-121:

" ... one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant's carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. As far as we can see the test has never been authoritatively stated in terms other than those which would permit of its general application and it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of."

It follows that a defendant whose carelessness has caused damage to a plaintiff and who could reasonably have foreseen that his carelessness was liable to cause some damage "can only escape liability if the damage can be regarded as differing in kind from what was foreseeable" (per Lord Reid in Hughes v. Lord Advocate [1963] AC 837 , at p 845). Prior to The Wagon Mound (No 1), the formulation of the test of foreseeability was influenced by the judgments in In re Polemis and Furness, Withy & Co. [1921] 3 KB 560 so that it was often expressed in terms of what the defendant ought to anticipate as the reasonable and probable consequences of his conduct. For example, in Thompson v. Bankstown Corporation (1953) 87 CLR 619 , Dixon C.J. and Williams J. said, at p 630:

"In a passage in his opinion in Bourhill v Young ( [1943] AC 92 , at p 104), Lord Macmillan says 'The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.' This passage was cited and used as the test by Lord Thankerton and by Lord Macmillan himself in Glasgow Corporation v. Muir ((1943) A.C.448, at pp.454,457). Lord Macmillan's phrase 'the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed', has, as the opinions in the two cases seem to show, no meaning very different from Lord Atkin's description in M'Alister (or Donoghue) v. Stevenson ((1932) A.C.562, at p 580), viz. 'persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question'."

Then, in Chapman v. Hearse, at p 120, this Court left open the question whether foreseeability is restricted to foreseeability of those consequences which, after the event, can be characterized as "reasonable and probable". Now it has been held by the House of Lords (Hughes v. Lord Advocate), the Judicial Committee (The Wagon Mound (No 2): Overseas Tankship (UK) Ltd. v. The Miller Steamship Co. Pty. [1967] AC 617 ) and by this Court (Wyong Shire Council v. Shirt (1980) 146 CLR 40 ) that the test of foreseeability is not so restricted. The present rule in negligence is stated by Lord Reid in C. Czarnikow Ltd. v. Koufos [1969] 1 AC 350 , at pp 385-386:

"The defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless the risk is so small that a reasonable man would in the whole circumstances feel justified in neglecting it."

As Mason J. pointed out in Shirt's Case, at p 45, his Lordship must be understood to be using the expression "liable to happen" so as to include an event which may be described as a very improbable result. Nowadays it is neither possible nor necessary to embrace the judgments in re Polemis (as Evatt J. did in Chester v. Waverley Corporation (1939) 62 CLR 1 , at p 29) in order to uphold the recovery of damages for nervous shock which, though a foreseeable consequence, is not a natural and probable consequence of the defendant's careless conduct.

Applying Lord Reid's statement of the principle to cases where a plaintiff seeks damages for negligence occasioning nervous shock, it is not necessary for a plaintiff to prove that a reasonable man in the defendant's position could foresee that any particular psychiatric illness might be caused by his conduct; it suffices that he could have foreseen that his conduct might cause some recognized psychiatric illness induced by shock. In Mount Isa Mines Ltd. v. Pusey, Walsh J. said (at p 414):

" ... for the purposes of the present case the statement in The 'Wagon Mound' (No 1) ((1961) A.C., at p 426) that the test of liability for shock is foreseeability of injury by shock may be accepted. It treats 'injury by shock' as a distinct kind of injury. Its acceptance means that all forms of mental or psychological disorder which are capable of resulting from shock are to be regarded as being, for the purposes of the foreseeeability test of liability, damage of the same kind. If, therefore, some form of mental illness or neurosis was foreseeable, as Skerman J. found, and in my view properly found, the respondent satisfied the requirements of that test. He proved that the damage which he suffered was of a kind which was foreseeable."

It is not necessary that the precise events leading to the administration of the shock should be foreseeable. It is sufficient that shock and a psychiatric illness induced by it are reasonably foreseeable.

When a duty of care is found to exist, owed either to a plaintiff or to a class of persons of whom he is one, the plaintiff must prove its breach. This calls for an assessment of the act or omission by which the plaintiff's damage was caused. That assessment is made by reference to the standard of the notional reasonable man, as Mason J. explained in Shirt's Case, at pp.47-48:

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.

It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

When a plaintiff suffers a psychiatric illness induced by his perception of the physical consequences of the defendant's breach of a duty of care owed to a third person, he is not likely to have difficulty in proving the defendant's breach of any relevant duty of care owed to him. Thus, in Mount Isa Mines Ltd. v. Pusey Walsh J. said, at p 411:

"There can be no remaining question as to the existence of a relevant duty or as to the breach of it if, in addition to the findings that there was a breach of a duty owed by the appellant to Kuskopf and Docherty" - the two servants of the defendant who had suffered burning injuries - "and that this was a cause of the injuries to them, two further propositions were established, namely,

(1)

that it was foreseeable that if injury was thus caused to those servants or either of them other persons in the building such as the respondent might go to investigate and to render assistance; and

(2)

that it was foreseeable that such a person going to the scene might suffer an injury of the kind for which the respondent sued and which he proved to have been caused, in fact, by the incident in question."

It is not necessary here to consider the case where the plaintiff suffers nervous shock caused by his perception of the physical consequences to a third person of the defendant's conduct and the third person is owed no relevant duty of care.

A broadening of the test of foreseeability and a readier judicial acceptance of the foreseeability of shock-induced psychiatric illness have combined to expand the scope of a defendant's liability beyond what it was thought to be half a century ago. Liability for negligence occasioning nervous shock has not been readily accepted, perhaps because the courts found evidence of psychiatric illness and of its aetiology to be too vague to warrant a finding of a causal relationship between psychiatric illness and careless conduct. Curial wariness of vague notions is, as Sir Owen Dixon said, perhaps the "reason that scorn of the law is more widespread among psychiatrists than anatomists" (Jesting Pilate (1965) p 18). The courts have insisted on proof of a demonstrable and readily-appreciable cause of psychiatric illness - the cause itself being a result of the defendant's careless conduct - before damages for negligence occasioning psychiatric illness are awarded. A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by "shock". Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness. The spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation; a parent made distraught by the wayward conduct of a brain-damaged child and who suffers psychiatric illness as a result has no claim against the tortfeasor liable to the child.

The foreseeability of shock-induced psychiatric illness has gained a more ready acceptance by Australian courts during the last half-century. The change in approach is manifest when Chester v. Waverley Corporation is compared with Mount Isa Mines Ltd. v. Pusey. In Chester v. Waverley Corporation, a mother suffered "severe nervous shock" when, in her presence and sight, the dead body of her 7-year old son was found in and taken from a water-filled trench which the defendant corporation had dug in a road and had carelessly failed to fence. Her action failed. In Mount Isa Mines Ltd. v. Pusey, the trial judge found that the defendant employer ought to have foreseen the possibility of an employee suffering an injury within the broad category of psychiatric illness when going to the rescue of other employees in the same building who suffered gruesome burning injuries as the result of negligence on the parts of both the employer and the injured employees. There the award of damages was upheld. In both cases this Court's decision turned upon whether, on the facts of the case, the causing of the plaintiff's psychiatric illness by shock was reasonably foreseeable by the defendant (see, in Chester's Case, Latham C.J. at p 10, Rich J. at p 11, Starke J. at pp 13-14 and Evatt J. at p 29; in Pusey's Case, at pp.389- 390,391,395 - where Windeyer J. uses the phrase "set off by shock" - and pp.402,414).

A similar change is to be seen in the approach of English courts, although a criterion of reasonable foreseeability has been accepted throughout. In Bourhill v. Young the plaintiff's action failed because their Lordships were of the opinion that, in the circumstances, the defendant could not reasonably have foreseen that the collision would put persons in the plaintiff's position in danger of suffering injury by shock (see per Lord Thankerton at p 99, Lord Russell of Killowen at p 102, Lord Macmillan at p 105, and Lord Wright at p 111; Lord Porter at p 119 speaks of foresight of "emotional injury ... as a result of .. negligent driving" although he had referred at p 117 to the reasonable anticipation of "emotional disturbance or shock"). The plaintiff's claim was rejected on the facts, as Lord Wilberforce acknowledged in McLoughlin v. O'Brian [1983] 1 AC 410 , at p 418. In McLoughlin v. O'Brian the House of Lords accepted that it was reasonably foreseeable that the plaintiff, whose husband and children were injured in a motor car accident - one child was injured fatally - might suffer psychiatric illness caused by shock by seeing them grievously injured in hospital shortly after the accident. The fact that the plaintiffs in Pusey's Case and in McLoughlin v. O'Brian succeeded no doubt reflects the broadening of the legal criterion of reasonable foreseeability and the contemporary acceptance of the foreseeability of shock-induced psychiatric illness. The success of the plaintiffs in those cases is a salutary reminder that questions of law and questions of fact must be kept within their proper areas of discourse and that it is a fallacy to limit the scope of a cause of action by too ready a rejection of the sufficiency of the evidence tendered in proof of an element of that cause of action.

In cases of negligence occasioning nervous shock, as in cases of negligence occasioning physical injury, the "essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen" (The Wagon Mound (No 1), at p 426). The distinction in principle between the two classes of cases, however, depends on the kind of damage that the reasonable man should foresee. Where a plaintiff is entitled to damages for negligence occasioning nervous shock, some recognizable psychiatric illness induced by shock must be reasonably foreseeable.

The notion of psychiatric illness induced by shock is a compound, not a simple, idea. Its elements are, on the one hand, psychiatric illness and, on the other, shock which causes it. Liability in negligence for nervous shock depends upon the reasonable foreseeability of both elements and of the causal relationship between them. It is not surprising that Lord Macmillan noted in Bourhill v. Young, at p 103, that:

" ... in the case of mental shock there are elements of greater subtlety than in the case of an ordinary physical injury and these elements may give rise to debate as to the precise scope of legal liability."

I understand "shock" in this context to mean 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 recognizable psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential. If mere knowledge of a distressing phenomenon sufficed, the bearers of sad tidings, able to foresee the depressing effect of what they have to impart, might be held liable as tortfeasors.

The capacity of a phenomenon to cause a person who perceives it to suffer a psychiatric illness depends in part upon the distressing aspects of the phenomenon which are manifest to be perceived by anybody and in part upon any special significance which the phenomenon may have for the person who perceives it. Thus a runaway lorry rushing around a bend has a special significance for a mother who knows her children to be there; she is more likely than another bystander to be shocked by the sight of the runaway lorry: see Hambrook v. Stokes Bros. [1925] 1 KB 141 . Of course a psychiatric illness may be induced by shock when a distressing phenomenon is perceived by a plaintiff for whom it has no special significance. Thus in Dulieu v. White & Sons. [1901] 2 KB 669 , where it was held that a plaintiff could recover for "a severe shock" if she proved that it was caused by the negligent driving of a pair-horse van into her husband's public house where she was behind the bar, it was not thought necessary that the plaintiff should allege and prove that she was more susceptible than other occupants of the public house to the sight of the entry of the pair-horse van. No doubt it is true to say that the more distressing and dramatic an event, the more likely it is to cause shock to those who perceive it. The scene of a road accident where an injured victim is to be seen is usually more distressing and dramatic, more inherently shocking, than the scene in a hospital ward where the victim is recovering from his injuries. There is, however, no legal principle which precludes a plaintiff from relying on phenomena other than the scene of an accident or, as in Hambrook v. Stokes Bros., the scene of a potential accident. A temporal extension beyond the actual occurrence of an accident was accepted by Lush J. in Benson v. Lee (1972) VR 879, who allowed a claim based upon "direct perception of some of the events which go to make up the accident as an entire event, and this includes ... the immediate aftermath ..." (at p 880). But I know of no principle which precludes a plaintiff from relying on any phenomenon which is a reasonably foreseeable result of the defendant's carelessness. It is a question of fact whether it is reasonably foreseeable that the sudden perception of that phenomenon might induce psychiatric illness.

Nowadays it is accepted by the community and by the courts that the sudden perception of a distressing phenomenon might induce psychiatric illness in some people, although the mechanics of the causal relationship involved is not fully understood even by those in whose field of expertise that subject lies. It is not surprising that there is great scope for differences of opinion as to the foreseeability of the inducing of a psychiatric illness by the sudden perception of a distressing phenomenon. Moreover, it is generally recognized that what will induce a psychiatric illness in one person may leave another unaffected. Some people are naturally more robust - or less sensitive - than others. Yet reasonable foreseeability is an objective criterion of duty, and a general standard of susceptibility must be postulated. At least to that extent it is possible to confine consideration of the question whether it is reasonably foreseeable that the perception of a particular phenomenon might induce in the plaintiff a psychiatric illness. Some general guidelines apply. The first guideline is this: the question "whether there is duty owing to members of the public who come within the ambit of the act, must generally depend on a normal standard of susceptibility" (per Lord Wright in Bourhill v. Young, at p 110). Unless a plaintiff's extraordinary susceptibility to psychiatric illness induced by shock is known to the defendant, the existence of a duty of care owed to the plaintiff is to be determined upon the assumption that he is of a normal standard of susceptibility. Secondly, if it is reasonably foreseeable that the phenomenon might be perceived by a person or class of persons for whom it has a special significance - for example, the parent of a child injured in a road accident who comes upon the scene - the question whether it is reasonably foreseeable that the perception of the phenomenon by that person or a member of that class might induce a psychiatric illness must be decided in the light of the heightened susceptibility which the special significance of the phenomenon would be expected to produce.

Plaintiffs who have been present at the scene of an accident have recovered, especially where the injured third person is a spouse, child or sibling of the plaintiff: see Dulieu v. White & Sons., where the plaintiff was shocked by the event itself; Storm v. Geeves (1965) Tas SR 252, where the victim's brother and sister were at the scene; and Hinz v. Berry, where Mrs Hinz looked immediately at the scene of disaster when a car ran into her husband and children, injuring them all and fatally injuring her husband. Rescuers have recovered when they come to the scene of an accident to render assistance to the injured, for it was foreseeable that they would come to the scene and their arrival there was treated as being a result of the defendant's careless conduct: see Mount Isa Mines Ltd. v. Pusey; Chadwick v. British Railways Board (1967) 1 WLR 912 . The law treats a rescuer's response to the victim's injury as the natural and probable consequence of the conduct which causes the injury:

"The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences"

(per Cardozo J. in Wagner v. International Ry. Co. (1921) 232 NY 176, at p 180). Similarly, parents who have been quickly summoned to the scene of a child's accident have recovered: for example, the mothers in Storm v. Geeves and Benson v. Lee, and a father in Boardman v. Sanderson (Keel and Block Third Party) (1964) 1 WLR 1317 . If rescuers' and parents' responses are so commonplace and expected that their attendance at the scene may properly be found to be the reasonably foreseeable result of inflicting an injury on the original victim, the response of one spouse in coming immediately to the other spouse in his or her distress must be similarly regarded. There is no difference in principle between the compassionate and immediate response of a rescuer, a parent or a spouse to a victim's cry of distress. The defendant's infliction of injury upon the victim is the summons to the rescuer, parent or spouse to attend the victim, and that attendance can properly be found to be the result, and the reasonably foreseeable result, of the defendant's conduct. The range of foreseeability in the case of rescuers is well stated by Evatt J. in the second of the "subsidiary principles" set out in Chester v. Waverley Corporation (at p 44):

"The secondary duty is cast upon A because a reasonable person in his position would have foreseen the probability of injury being sustained (a) by those who are already present at or in the immediate vicinity of the scene of the actual or apprehended casualty, and (b) by those who will also be brought to the scene for the purpose either of preventing the casualty altogether, or of minimizing its injurious consequences, or in the course of a search to discover and rescue or aid any person who is feared on reasonable grounds to have been injured in the casualty."

It would be an exceptional case if it could be found that the attendance of other persons at the scene of an accident is the result of the defendant's negligence. However foreseeable it may be that passers-by will stop or that morbid curiosity will bring others to the scene, it is difficult to envisage a case where their attendance at the scene and their perception of it could fairly be regarded as the result of the defendant's conduct. Unless their attendance at and perception of the scene is shown to be a result, and a reasonably foreseeable result, of the defendant's conduct, they are not entitled to recover damages for psychiatric illness induced by sudden perception of it. That is, however, a question of fact.

When the scene of an accident is left behind, and the perception of some later phenomenon induces a psychiatric illness in a plaintiff, the factual difficulties in the way of establishing negligence occasioning nervous shock are greatly increased though the principles are unchanged. The occurrence or existence of the later phenomenon, its sudden perception by the plaintiff and the inducing of the plaintiff's psychiatric illness must be proved to be the results, and the reasonably foreseeable results, of the defendant's conduct. But the separation in time and distance of the later phenomenon from the immediate consequences of the defendant's conduct may make it difficult to prove the elements of causation and reasonable foreseeability as they apply in cases of nervous shock. The cry of distress which summons a rescuer, spouse or parent to the scene of an accident may lose some of its urgency as time passes after the initial injury; later visits by a spouse or parent to the injured person in hospital may not be so distressing as to induce psychiatric illness in a spouse or parent of a normal standard of susceptibility - especially if the injured person's condition and treatment proceed without dramatic fluctuations. It may not be reasonably foreseeable that the perception of the injured spouse or child in hospital might induce a psychiatric illness. Of course, what is too remote to be treated as a consequence in one case may be clearly within the chain of causation in another; what is not reasonably foreseeable in one case may be reasonably foreseeable in another.

These are all questions of fact, but they are questions of impression and degree which cannot be directly proved by evidence of what is too remote and what is not, of what is reasonably foreseeable and what is not. They are matters of judgment for the jury or, where there is no jury, for the judge. Hence Lord Wright, in Bourhill v. Young, in answer to the question where the thing is to stop, replied (at p 110) that "it should stop where in the particular case the good sense of the jury or of the judge decides".

The stopping point is not to be defined as a proposition of law, nor are new principles to be invented to stop the thing going too far. In McLoughlin v. O'Brian, the House of Lords was much exercised by the scope of the cause of action, some of their Lordships asserting that limits should be placed judicially upon it (see per Lord Wilberforce at p 421; Lord Edmund-Davies at pp 426-428). Others of their Lordships denied the propriety of curtailing a cause of action to satisfy judicial policy (see per Lord Scarman at p 430; Lord Bridge of Harwich at pp 441-443), while Lord Russell of Killowen did not deny that notions of judicial policy could be relevant in an appropriate case but found that the facts of the case did not raise any issue of judicial policy (at p 429). In my opinion, the exigencies of proof of the elements of the cause of action impose the appropriate limits upon the scope of the remedy. Those limits are likely to be at once more flexible and more stringent than limits imposed by legal rules which might be devised to give effect to a judicial policy of restraining the remedy within what are thought to be acceptable bounds.

In McLoughlin v. O'Brian (at p 422) Lord Wilberforce thought that the existing law recognizes the claims of parent and child or husband and wife but denies the claims of the ordinary bystander. His Lordship suggested that cases "involving less close relationships" should be carefully scrutinized and the claim judged in the light of other factors. The criteria of causation and reasonable foreseeability based on normal standards of susceptibility are more easily satisfied in the case of parent and child or husband and wife. Those criteria also furnish the framework of principle within which the courts determine whether a particular claim by a bystander or by a plaintiff in "a less close relationship" with a physically injured victim is to be allowed. In Australia, the categories of claimants are not closed. In the present case, it is unnecessary to do more than recall what Windeyer J. said in Pusey's Case, at p 404:

"There seems to be no sound ground of policy, and there certainly is no sound reason in logic, for putting some persons who suffer mental damage from seeing or hearing the happening of an accident in a different category from others who suffer similar damage in the same way from the same occurrence. The supposed rule that only relatives can be heard to complain is apparently a transposition of what was originally a humane and ameliorating exception to the general denial that damages could be had for nervous shock. Close relatives were put in an exceptional class. ... What began as an exception in favour of relatives to a doctrine now largely abandoned has now been seen as a restriction, seemingly illogical, of the class of persons who can today have damages for mental ills caused by careless conduct."

In McLoughlin v. O'Brian Lord Wilberforce acknowledged that, although close proximity to the accident in time and space is necessary, a plaintiff might recover when he comes from nearby and very soon upon the scene. I would regard those considerations to be relevant to the finding of facts, but not to be principles limiting liability. The question whether a plaintiff comes to the scene of an accident as rescuer (and may recover) or out of mere curiosity (so that he may properly be regarded as the author of his own shock) can be decided by reference to the currently accepted principles. Persons "of whom it could be said that one could expect nothing else than that he or she would come immediately to the scene - normally a parent or a spouse" (persons whom Lord Wilberforce would hold to be entitled to recover) are accommodated within those principles. I do not find it desirable as a matter of policy or permissible as a technique of judicial development of the law to create new criteria of limitation upon the scope of the cause of action in negligence causing psychiatric illness. The thing will stop where good sense in the finding of facts stops it. In each case where causation is established, the question of fact is whether it was reasonably foreseeable by the defendant that his conduct might bring about a phenomenon the sudden perception of which by the plaintiff or by a class of which the plaintiff is a member might induce a psychiatric illness, assuming the plaintiff or the members of that class to be of a normal standard of susceptibility. Of course, the room for judgment is manifest as it always is in the evaluation of facts, but that provides no warrant for introducing new criteria to limit liability. I would agree, with respect with Burbury C.J. who said in Storm v. Geeves, at pp 261-262:

"It can now I think be taken to be clear 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."

If authority established that there are restrictive criteria of liability in addition to causation and reasonable foreseeability, the scope of the cause of action would have to be more narrowly stated. In McLoughlin v. O'Brian Lord Wilberforce said, at p 420, that "foreseeability does not of itself, and automatically, lead to a duty of care". And Lord Edmund-Davies said that he could not accept the approach that reasonable foreseeability is the sole test of liability. He added, at p 426:

"It is true that no decision was cited to your Lordships in which the contrary has been held, but that is not to say that reasonable foreseeability is the only test of the validity of a claim brought in negligence."

Both of their Lordships referred to what Lord Reid had said in McKew v. Holland & Hannen & Cubitts and to what Lord Wilberforce had said in Anns v. Merton London Borough [1978] AC 728 , at p 752. Lord Reid's speech, however, was not concerned with reasonable foreseeability as the criterion of a duty of care; he was pointing out, as this Court pointed out in Chapman v. Hearse, that liability in negligence does not extend to consequences that are not caused, in the eye of the law, by the defendant's act or omission. The context makes that clear (at p 1623):

"His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability. I do not think that foreseeability comes into this. A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other novus actus interveniens as being quite likely."

Lord Wilberforce's speech in Anns, however, was concerned with the criterion of reasonable foreseeability in torts which have developed from the general conception expressed by Lord Atkin in Donoghue v. Stevenson [1932] AC 562 . In Anns, Lord Wilberforce said (at pp 751-752):

"Through the trilogy of cases in this House - Donoghue v. Stevenson [1932] AC 562 , Hedley Byrne & Co Ltd. v. Heller & Partners Ltd. [1964] AC 465 , and Dorset Yacht Co Ltd. v. Home Office [1970] AC 1004 , the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise: see Dorset Yacht case (1970) A.C.1004, per Lord Reid at p 1027. Examples of this are Hedley Byrne's case (1964) A.C.465 where the class of potential relied upon the correctness of statements made, and Weller & Co. v. Foot and Mouth Disease Research Institute [1966] 1 QB 569 ; and (I cite these merely as illustrations, without discussion) cases about 'economic loss' where, a duty having been held to exist, the nature of the recoverable damages was limited: see SCM. (United Kingdom) Ltd v W J Whittall & Son Ltd (1971) 1 Q.B.337 and Spartan Steel & Alloys Ltd. v. Martin & Co.(Contractors) Ltd. (1973) QB 27."

The "sufficient relationship of proximity or neighbourhood" to which his Lordship refers in the first stage of the approach is Lord Atkin's well-known neighbour principle, as Lord Devlin explained in Hedley Byrne, at p 524:

"What Lord Atkin called ((1932) A.C.562, at p 580) a 'general conception of relations giving rise to a duty of care' is now often referred to as the principle of proximity. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. In the eyes of the law your neighbour is a person who is so closely and directly affected by your act that you ought reasonably to have him in contemplation as being so affected when you are directing your mind to the acts or omissions which are called in question."

The second stage of the approach is derived from cases all of which, except for Dorset Yacht, are cases of economic loss. In Dorset Yacht, in the passage of Lord Reid's speech to which Lord Wilberforce refers, his Lordship distinguished negligence causing economic loss from negligence causing property damage: "causing economic loss is a different matter." It is erroneous, of course, to treat all cases of negligence causing economic loss as a sub-species of a general tort of negligence the elements of which are common to all torts involving negligence. Lord Atkin's general conception of relations giving rise to a duty of care has informed the development of various branches of the law but the elements of the several categories of negligence are not identical. In truth, as Lord Reid observed, "where negligence is involved the tendency has been to apply principles analogous to those stated by Lord Atkin" in Donoghue v. Stevenson (emphasis added). The evolution of new categories of negligence was explained by Lord Devlin in Hedley Byrne, at pp 524-525:

"What Lord Atkin did was to use his general conception to open up a category of cases giving rise to a special duty. It was already clear that the law recognised the existence of such a duty in the category of articles that were dangerous in themselves. What Donoghue v. Stevenson (1932) A.C.562 did may be described either as the widening of an old category or as the creation of a new and similar one. The general conception can be used to produce other categories in the same way. An existing category grows as instances of its application multiply until the time comes when the cell divides."

As new categories of negligence grow out of the general conception, they are found to contain one or more different elements from other categories grown from the common stock. When negligent misrepresentation causing economic loss was recognized as a category of negligence in Hedley Byrne, reasonable foreseeability of economic loss was held not to be enough to establish a duty of care: a further special relationship between the parties was required. When the category of negligent conduct causing economic loss was recognized in Caltex Oil (Australia) Pty. Ltd. v. The Dredge "Willemstad" (1976) 136 CLR 529 , reasonable foreseeability that a particular person would be likely to suffer economic loss as a consequence of negligence was required. What will suffice to establish a duty of care in one category of negligence is not necessarily enough in another. Lord Atkin's general conception of relations giving rise to a duty of care, the neighbour principle, cannot be taken as a universal statement of the criterion of duties of care in the several categories of negligence where different kinds of damage are in issue. In Dorset Yacht, Lord Diplock, after citing the well-known passage from Lord Atkin's speech, cautioned against treating Lord Atkin's general conception as a universal proposition (at p 1060):

"Used as a guide to characteristics which will be found to exist in conduct and relationships which give rise to a legal duty of care this aphorism marks a milestone in the modern development of the law of negligence. But misused as a universal it is manifestly false.

The branch of English law which deals with civil wrongs abounds with instances of acts and, more particularly, of omissions which give rise to no legal liability in the doer or omitter for loss or damage sustained by others as a consequence of the act or omission, however reasonably or probably that loss or damage might have been anticipated."

In Anns, Lord Wilberforce's approach "in two stages" to the establishing of a duty of care takes, as its first stage, Lord Atkin's general conception; the second stage takes those further elements which are appropriate to the particular category of negligence and which confine the duty of care within narrower limits than those which would be defined by an unqualified application of the neighbour principle. And so, in Shirt's Case, where an ambiguous sign misled a water skier about the depth of water in part of a lake and the water skier suffered personal injury by falling in the shallows, Mason J. thought it appropriate to adopt the two stage approach, saying (at p 44):

"According to Lord Atkin's statement of principle in Donoghue v. Stevenson ( [1932] AC 562 , at p 580), as it has been refined in later decisions, prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant's position would foresee that carelessness on his part may be likely to cause damage to the plaintiff (Home Office v. Dorset Yacht Co Ltd ((1970) A.C.1004, at pp 1027, 1034,1054,1060); Anns v. Merton London Borough Council ( [1978] AC 728 , at pp 751-752). It has not been suggested that there were present in the instant case any considerations which negated the duty."

A similar approach to the general conception as the first of two stages was taken by Lord Roskill in Junior Books Ltd. v. Veitchi Ltd. [1983] 1 AC 520 , at pp 545-547. If proximity is understood as no more than the neighbour principle, the question in the present case is whether there are any considerations which, on moving to Lord Wilberforce's second stage , negate the duty of care which would arise by application of the criterion of reasonable foreseeability. There are none. In Caltex Oil Stephen J. said, at p 572:

"Reasonable foreseeability on its own, while no doubt providing adequate limitation of liability in the general run of duty situations in negligence, has been recognized as inadequate in certain specific duty situations; for instance in nervous shock the recognized test, that of reasonable foreseeability of injury by nervous shock, introduces a further control in that the precise kind of damage suffered must have been foreseeable."

Apart from the elements of nervous shock, which distinguish this category of negligence from other categories of negligence causing personal injury, no special element restricting the cause of action has been hitherto admitted in this Court. The limitations suggested by Lord Wilberforce in McLoughlin v. O'Brian, in my respectful opinion, are appropriately taken into account by the general principles of causation and reasonable foreseeability. There are no other elements which might preclude a duty of care arising where the kind of damage caused by a defendant's conduct is shock-induced psychiatric illness and that kind of damage is reasonably foreseeable. I would regard the contrary view expressed in Pratt & Goldsmith v. Pratt (1975) VR 378, at p 386, as erroneous.

It remains to apply these principles to the facts as found in the present case. Mrs Coffey's psychiatric illness was caused by seeing her husband in the Royal Adelaide Hospital some time after the accident, not by seeing him on the roadway immediately after the accident. No special principle governs the cases where the relevant phenomenon is set in a hospital rather than on a roadway, nor is there a special principle applicable when the relevant phenomenon is perceived hours rather than minutes after the careless act or omission produced its first consequences. Allan's movement by ambulance to the hospital and the lapse of time before Mrs Coffey saw him might have provided an opportunity for other people to intervene so that his appearance in the hospital would not fairly be regarded as the result of the defendant's carelessness or the reasonably foreseeable result of it. But Allan was taken from the scene of the accident directly to a hospital for treatment of his injuries, Mrs Coffey was quickly summoned to him there, and nothing untoward was shown to have intervened to exacerbate Allan's distressing appearance. In those circumstances, there is no reason why the resolution of the case should be governed by considerations different from those which would apply if she had been summoned to the scene of the accident. Liability cannot rationally be made to depend upon a race between a spouse and an ambulance; it must depend upon what the spouse perceives, its effect upon her, and whether her perceptions and their effect are the reasonably foreseeable results of the defendant's careless conduct. It was certain that Allan would have to be taken to hospital and treated there for his injuries. His treatment is not shown to be out of the ordinary for the injuries he sustained. Mrs Coffey's presence at the hospital was the result of the defendant's infliction of injuries on her husband. It was reasonably foreseeable that Mrs Coffey would be at the hospital to observe Allan and what happened to him that night. On the assumption that Mrs Coffey was of a normal standard of susceptibility ("of normal fortitude", as Bollen J. put it), was it reasonably foreseeable that what she might see and hear that night would be such an affront or insult to her mind that she might suffer a psychiatric illness? Bollen J. answered that question in Mrs Coffey's favour. It is a question of fact and, although an affirmative answer to that question was not beyond argument, the answer given by Bollen J. makes good sense and I do not think it should be disturbed.

The appeal should be dismissed.