Jaensch v Coffey

155 CLR 549
54 ALR 417

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(Judgment by: DEANE 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:
DEANE J

It is an incident of human society that action or inaction by one person may have a direct or indirect effect on another. Unless there be more involved than mere cause and effect however, the common law remains indifferent. A person's action or inaction may be a cause of another's injury or discomfort; unless there be some particular relationship, personal or proprietary right or other added element, the common law imposes no liability to make payment of compensation or other damages. In a society where material success, commonly measured in comparative terms, is accepted as a legitimate objective and the preservation of individual freedom of action or speech is acknowledged as a legitimate goal, the law must be so restrained if it is to be attuned to social standards and reality. If material success were to be accompanied by legal liability to all who have suffered emotional chagrin or physical or material damage as a consequence or along the way, it would be largely self-destructive. In that regard, the common law has neither recognized fault in the conduct of the feasting Dives nor embraced the embarrassing moral perception that he who has failed to feed the man dying from hunger has truly killed him.

The closest that the common law has come to providing a general remedy in respect of injurious conduct is the modern law of negligence with its hypothetical "neighbour" and associated test of "reasonable foreseeability". The common law duty to a "neighbour" has, however, scant in common with its New Testament equivalent; both priest and Levite ensured performance of any common law duty of care to the stricken traveller when, by crossing to the other side of the road, they avoided any risk of throwing up dust in his wounds (cf. Dorset Yacht Co. Ltd. v. Home Office (197O) AC 1004, at p 1060). In Donoghue v. Stevenson [1932] AC 562 , at p 58O, the common law duty of care was defined, for the purposes of the law of negligence, as the duty to take reasonable care when it can be reasonably foreseen that one's "acts or omissions" are likely to injure one's "neighbour". A "neighbour" was identified as being, in the view of the common law, a person who is "so closely and directly affected by my act that I ought reasonably to have (him or her) in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question" (at p 58O). The significance of the requirement contained in the words "so closely and directly affected ... that" is that they constitute a control upon the test of reasonable foreseeability of injury. Lord Atkin was at pains to stress (at pp 580-582) that the formulation of a duty of care merely in the general terms of reasonable foreseeability would be too wide unless it were "limited by the notion of proximity" which was embodied in the restriction of the duty of care to one's "neighbour". He traced that notion of proximity to the judgments of Lord Esher M.R. and A.L. Smith L.J. in Le Lievre v. Gould [1893] 1 QB 491 , at pp 497,504 but added an important explanation or qualification. The references to "proximity" in Le Lievre v. Gould had been couched in terms of physical proximity. Lord Atkin pointed out that physical proximity was but one facet of the proximity requirement that constituted an overriding control of the test of reasonable foreseeability in the law of negligence: the notion of proximity should "be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person" (at p 581 and see per Lord Macmillan, at p 619).

The notions of reasonable foreseeability and of proximity of relationship which were enunciated in Lord Atkin's speech in Donoghue v. Stevenson are related. The fact that an act of one person can be reasonably foreseen as "likely to injure" another is an indication, and, as will be seen, sometimes an adequate indication, that the requirement of "proximity" is satisfied. At the same time, the overall proximity of the relationship between the person or property of the plaintiff and that of the defendant or between the allegedly negligent act and its effect may be relevant on the question whether injury to the plaintiff was reasonably foreseeable. Lord Atkin's "restricted reply" to the common lawyer's question "who is my neighbour?" was not, however, couched in the unqualified terms of reasonable foreseeability which would, in the context, have served merely to provide a diversionary circuity of reasoning. The "neighbour" requirement ("this necessary qualification": at p 582) was a substantive and independent one which was deliberately and expressly introduced to limit or control the test of reasonable foreseeability. As explained and expanded in terms of "proximity" ("the relation being so close that the duty arises" and "so close as to create a duty": at pp 582 and 599, underlining added), it differed in nature from the test of reasonable foreseeability in that it involved both an evaluation of the closeness of the relationship and a judgment of the legal consequences of that evaluation. The proposition to be found in the writings of some eminent jurists that Lord Atkin's "neighbour" or "proximity" requirement was an exercise in tautology (see, e.g., Professor Stone, The Province and Function of Law, (1946), pp.181-182; Professor Morison, "A Re-examination of the Duty of Care", Modern Law Review, vol. 11 (1948), 9, at pp.12-13 and 33 and Professor Winfield, Select Legal Essays (1952), pp 70ff. and cf. per Windeyer J., Hargrave v. Goldman (1963) 110 CLR 40 , at p 63 and per Mahoney J.A., Minister for Environmental Planning v. San Sebastian Pty. Ltd. (1983) 2 NSWLR 268, at pp 326-327) is, as Professor Morison points out, based on the premise that Lord Atkin's overriding requirement of proximity involved no more than the notion of reasonable foreseeability. As I have indicated, that is a premise which I am quite unable to accept.

The more than fifty years which have passed since the decision in Donoghue v. Stevenson have been marked by an apparent general ascendancy of the test of reasonable foreseeability in the law of negligence, at least in cases involving physical damage to person or property. Other restraints and requirements have tended to be eclipsed or overshadowed. Not without some disagreement (see, e.g., Caterson v. Commissioner of Railways (1973) 128 CLR 99 , at pp 101-102), the requirement that it be reasonably foreseeable that injury was "likely" has been discarded and reasonable foreseeability of a mere (but "real") risk of injury to another, regardless of its likelihood, has been accepted as the appropriate foreseeability test (see C. Czarnikow Ltd. v. Koufos [1969] 1 AC 350 , at pp 385-386, 389; The Wagon Mound (No. 2) [1967] 1 AC 617 , at pp 642-643). "Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful" (per Mason J., Wyong Shire Council v. Shirt (1980) 146 CLR 40 , at p 47). Reasonable foreseeability has also displaced "directness" as the "effective test" for determining questions of the extent of recoverable damage (The Wagon Mound (No. 1) [1961] A.C. 388 , at p 426; Mount Isa Mines Ltd. v. Pusey (1970) 125 CLR 383 , at p 397). In the context of the conclusion in The Wagon Mound (No. 1) that the damage was not reasonably foreseeable, more prominence was understandably given in their Lordships' reasons to the restrictive effect of the decision, namely, the imposition of the requirement that compensation be limited to damage which was reasonably foreseeable. The expansive effect of the decision was, however, of at least equal importance from the viewpoint of principle in that it removed the requirement of "directness" as an independent overriding control of recoverable damages for foreseeable injury. Overall, one cannot but be conscious of the emergence of a common, although mistaken, tendency to see the test of reasonable foreseeability as a panacea and, what is of more importance for present purposes, to refer to it as if it were, from the viewpoint of principle, the sole determinant of the existence of a duty of care.

Given the circumstances of a particular case, the question whether a common law duty of care exists is a question of law. It is inevitable that, in cases falling within some closely settled areas of the law of negligence such as cases involving ordinary physical injury to an employee in an accident at his place of work or to one user of a public road involved in a collision with another, it will have been established in previous cases that the relationship between the parties necessarily possesses the requisite degree of proximity. In at least most other cases involving ordinary physical injury to a person or his property as a consequence of the direct impact of an act of the other party, it will have been established in previous cases that if the risk of injury was reasonably foreseeable, any proximity requirement is satisfied (cf. per Jacobs J., Caltex Oil (Australia) Pty. Ltd. v. The Dredge "Willemstad" (1976) 136 CLR 529 , at p 597). The result has been that, in cases involving direct physical damage to person or property, separate reference to any notion of proximity has come to be commonly regarded as either unnecessary or as being appropriately formulated in terms of being satisfied if the physical injury sustained was of a kind which was reasonably foreseeable. This approach is unobjectionable provided that one does not lose sight of the fact that reasonable foreseeability of injury was propounded by Lord Atkin in Donoghue v. Stevenson as constituting, on its own, no more than an incomplete determinant of a common law duty of care in the sense that such a duty of care will not be owed to a particular plaintiff unless the requirement of proximity in the relationship between plaintiff and defendant with respect to the relevant act and injury is satisfied. The fact that, as a practical matter, any separate requirement of proximity is commonly disregarded in cases where no issue is raised about it does not establish that it has been discarded as a matter of principle. All that that fact establishes is that, in such cases, the requirement of proximity is not a subject of dispute. Even in such cases however, one tends to find a deliberate qualification in more carefully worded judgments of any equation between reasonable foreseeability and a duty of care. Thus, in Wyong Shire Council v. Shirt (at p 44), Mason J., in a judgment with which Stephen and Aickin JJ. expressed full agreement, described the duty of care which "arises on the part of a defendant to a plaintiff" when the test of reasonable foreseeability is satisfied as but a "prima facie" one. It would seem clear enough that his Honour's description of the "duty of care" as "prima facie" indicated acceptance of the existence of requirements or limitations whose operation may preclude the existence of a duty of care (see his Honour's judgment in The Dredge "Willemstad" Case, at pp.590-593 and that of Stephen J. at pp.573-576). What can properly be read from Mason J's remarks is that, to adapt and qualify words used by Lord Reid in the Dorset Yacht Co. Case (at p 1027), the time has come when an equation between reasonable foreseeability of injury and a duty of care under the law of negligence can be accepted in cases involving ordinary physical injury unless there be "some justification or valid explanation for its exclusion". That approach corresponds generally with that adopted by Lord Wilberforce in the oft-cited passage from his judgment in Anns v. Merton London Borough [1978] AC 728 , at pp 751-752. Upon analysis, it reflects an acceptance, rather than a denial, of the existence of overriding limitations upon the test of reasonable foreseeability.

It is not and never has been the common law that the reasonable foreseeability of risk of injury to another automatically means that there is a duty to take reasonable care with regard to that risk of injury (cf. per du Parcq L.J., Deyong v. Shenburn (1946) KB 227, at p 233; Edwards v. West Herts. Group Hospital Management Committee (1957) 1 WLR 415 , at pp 420, 422; and per Lord Reid, McKew v. Holland and Hannen and Cubitts (Scotland), Ltd. [1969] 3 All ER 1621 , at p 1623). Reasonable foreseeability on its own indicates no more than that such a duty of care will exist if, and to the extent that, it is not precluded or modified by some applicable overriding requirement or limitation. It is to do little more than to state a truism to say that the essential function of such requirements or limitations is to confine the existence of a duty to take reasonable care to avoid reasonably foreseeable injury to the circumstances or classes of case in which it is the policy of the law to admit it. Such overriding requirements or limitations shape the frontiers of the common law of negligence. They may apply to preclude altogether the existence of a duty of care in particular circumstances (see, e.g., Rondel v. Worsley [1969] 1 AC 191 ) or to limit the content of any duty of care or the class of persons to whom it is owed (see, e.g., Hedley Byrne & Co. Ltd. v. Heller and Partners Ltd. [1964] AC 465 ) or the type of injury to which it extends (see, e.g., Best v. Samuel Fox & Co. Ltd. [1952] AC 716 and, generally, the discussions in the judgments in The Dredge "Willemstad" Case and L. Shaddock & Associates Pty. Ltd. v. Parramatta City Council (1981) 55 ALJR 713).

One searches in vain in the cases for an authoritative statement abrogating Lord Atkin's requirement of "proximity" of relationship. To the contrary, one finds, in cases in the comparatively uncharted areas of the law of negligence, repeated reference to proximity as a touchstone for determining the existence and content of any common law duty of care to avoid reasonably foreseeable injury of the type sustained (see, e.g., The Dredge "Willemstad", at pp.574-575 and 592-593; Hedley Byrne v. Heller, at pp 524-525; Dorset Yacht Co. Ltd. v. Home Office, at pp 1054-1055; Scott Group Ltd. v. McFarlane (1978) 1 NZLR 553, at pp 574, 584; Junior Books Ltd. v. Veitchi Co. Ltd. [1983] 1 AC 520 , at pp 533, 539ff., 545-547). The requirement of a relationship of "proximity" in that broad sense should, in my view, be accepted as a continuing general limitation or control of the test of reasonable foreseeability as the determinant of a duty of care. The outcome of the present appeal largely turns upon the extent to which that requirement operates to preclude a common law duty of care arising in cases involving injury in the form of nervous shock sustained by a person by reason of actual or apprehended physical injury to another. That question must be approached in the context of what is involved in the notion of a relationship of "proximity".

While use of the term "proximity" has been properly criticized as "apt to mislead" (see Grant v. Australian Knitting Mills, Ltd. [1936] AC 85 , at p 104), it has been too widespread in judgments of authority in the law of negligence for it to be practicable to avoid it altogether. One must, however, remain conscious of the fact that the terms "proximity" and "relationship of proximity" have been used in such judgments to convey a variety of different meanings and of the need to distinguish between: their use to designate no more than a consideration relevant to whether there was a reasonably foreseeable risk of injury or a breach of any duty of care; their use, particularly in modern judgments (see, e.g., Anns v. Merton London Borough Council, at p 751; Wyong Shire Council v. Shirt, at p 44), to refer merely to the circumstance that there is a reasonable foreseeability of injury to another; and their use in the broader sense in which Lord Atkin used them, namely, as designating a separate and general limitation upon the test of reasonable foreseeability in the form of relationships which must exist between plaintiff and defendant before a relevant duty of care will arise. It is in the last-mentioned sense that the terms are ordinarily used in this judgment.

Lord Atkin did not seek to identify the precise content of the requirement of the relationship of "proximity" which he identified as a limitation upon the test of reasonable foreseeability. It was left as a broad and flexible touchstone of the circumstances in which the common law would admit the existence of a relevant duty of care to avoid reasonably foreseeable injury to another. It is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act of one person and the resulting injury sustained by the other. It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and causal proximity in the sense of the closeness or directness of the relationship between the particular act or cause of action and the injury sustained (cf. the "signposts or guidelines or relevant considerations" referred to by Cooke J. in Rutherford v. Attorney-General (1976) 1 NZLR 403, at p 411). The identity and relative importance of the considerations relevant to an issue of proximity will obviously vary in different classes of case and the question whether the relationship is "so" close "that" the common law should recognize a duty of care in a new area or class of case is, as Lord Atkin foresaw, likely to be "difficult" of resolution in that it may involve value judgments on matters of policy and degree.

This does not mean that there is scope for decision in a particular case by reference to what Jacobs J. called (H.C. Sleigh Ltd. v. South Australia (1977) 136 CLR 475 , at p 514) "individual predilections ungoverned by authority" or that it is a proper or sensible approach to the requirement of proximity for it to be treated as a question of fact to be resolved merely by reference to the particular relationship between a plaintiff and defendant in the circumstances of a particular case. The requirement of a "relationship of proximity" is a touchstone and a control of the categories of case in which the common law will admit the existence of a duty of care and, given the general circumstances of a case in a new or developing area of the law of negligence, the question whether the relationship between plaintiff and defendant with reference to the allegedly negligent act possessed the requisite degree of proximity is a question of law to be resolved by the processes of legal reasoning by induction and deduction. The identification of the content of the criteria or rules which reflect that requirement in developing areas of the law should not, however, be either ostensibly or actually divorced from the considerations of public policy which underlie and enlighten it. "What Lord Atkin did was to use his general conception to open up a category of cases giving rise to a special duty. ... 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" (per Lord Devlin, Hedley Byrne v. Heller, at pp 524-525 and see, e.g., per Nield J., Sharpe v. E.T. Sweeting & Son Ltd. (1963) 1 WLR 665 , at pp 670-676).

The general framework of common law negligence was expounded in Donoghue v. Stevenson in the context of a case involving physical injury in the form of personal illness (gastro-enteritis aggravated by shock). As explained by Lord Atkin, the components of an action in negligence in such a case are a duty of care, determined by reference to the related tests of reasonable foreseeability and proximity, breach of that duty of care and damage. In the context of subsequent development and refinement, those components can be stated, in a form appropriate to the circumstances of the present case, as being: (i) a relevant duty owed by the defendant to the plaintiff to take reasonable care resulting from the combination of: (a) reasonable foreseeability of a real risk that injury of the kind sustained by the plaintiff would be sustained either by the plaintiff, as an identified individual, or by a member of a class which included the plaintiff, (b) existence of the requisite element of proximity in the relationship between the parties with respect to the relevant act or omission and the injury sustained, and (c) absence of any statutory provision or other common law rule (e.g., that relating to hazards inherent in a joint illegal enterprise) which operates to preclude the implication of such a duty of care to the plaintiff in the circumstances of the case; (ii) a breach of that duty of care in that the doing of the relevant act or the doing of it in the manner in which it was done was, in the light of all relevant factors, inconsistent with what a reasonable man would do by way of response to the foreseeable risk (see Wyong Shire Council v. Shirt, at pp 47-48; The Wagon Mound (No. 2), at pp 641-643 and Schiller v. Mulgrave Shire Council (1972) 129 CLR 116 , at pp 131-132); and (iii) injury (of a kind which the law recognizes as sounding in damages) which was caused by the defendant's carelessness and which was within the limits of reasonable foreseeability.

This generalized formulation of the ingredients of a cause of action in negligence is obviously a superficial one and fails to take account of serious difficulties and uncertainties such as those that are liable to arise in the case of a mere omission or in a case involving multiple or successive causes of injury or intervening acts (see, e.g., the discussion in Hoffmueller v. Commonwealth (1981) 54 FLR 48 , at pp 60ff). In confining it to cases involving physical injury, I have left to another day the question whether all actions in negligence, including actions involving purely economic injury (cf. Junior Books Ltd; The Dredge "Willemstad" Case and L. Shaddock & Associates Pty. Ltd. v. Parramatta City Council), can properly be accommodated in that or some other framework structured on the test of reasonable foreseeability (see Johns Period Furniture Pty. Ltd. v. Commonwealth Savings Bank (1980) 24 SASR 224, at pp 228ff.). It may be that, in any such comprehensive framework, the requisite "proximity" of relationship, under that or some more appropriate name such as the phrase "the requisite duty relationship" which is used on some occasions in this judgment, should be seen as an anterior general requirement which must be satisfied before any duty of care to avoid reasonably foreseeable injury will arise. The above formulation is, however, adequate for the purposes of the present case where the carelessness took the form of a positive act, where any intervening acts were clearly foreseeable as at least likely (cf. Dorset Yacht Co. Case, at pp.1027ff.) and where the injury sustained was injury of a type which the courts have, after an initial denial, accepted as sounding in damages.

In Victorian Railways Commissioners v. Coultas (l888) 13 App Cas 222, it was held by the Judicial Committee of the Privy Council that liability in negligence did not extend to injury consequent upon nervous or mental shock which was unaccompanied by "actual physical injury". That decision must, however, be viewed in the context of the limited knowledge of mental illness in l888. It was rejected even by contemporary authority (see, e.g., per Palles C.B., Bell v. The Great Northern Railway Co. of Ireland (1890) 26 LR Ir 428, at pp 439-442; Sir Frederick Pollock, Law of Torts, 4th ed. (1895), at pp 46-47; Wilkinson v. Downton [1897] 2 QB 57 , at pp 60-61; Dulieu v. White & Sons [1901] 2 KB 669 , at pp 676-678; but cf. Mitchell v. Rochester Ry. Co. (1896) 45 NE 354) and has not been good law for many years. As Windeyer J. pointed out in Mount Isa Mines Ltd. v. Pusey (at p 395), it has "been regularly by-passed by courts" (see, also, Storm v. Geeves (1965) Tas SR 252, at pp 254-256). It is now the settled law in this country that there is a distinction, for the purposes of the law of negligence, between mere grief or sorrow which does not sound in damages and forms of psychoneurosis and mental illness (which lawyers have imprecisely termed "nervous shock") which may (see, e.g., Bunyan v. Jordan (1937) 57 CLR 1 , at p 16; Chester v. Waverley Corporation (1939) 62 CLR 1 , at pp 8-9, 11, 13 and 21 and, generally, Mount Isa Mines Ltd. v. Pusey). Any doubt in that regard would, in any event, have been removed for the purposes of the present case by the provisions of s 28(1) of the Wrongs Act 1936-1975 (SA) which provides that, in any action for injury to the person, the plaintiff shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock.

In issue in the present appeal is the liability of the appellant, Mr. Jaensch, to the respondent, Mrs. Coffey, for psychiatric injury which she suffered consequent upon her husband being involved in a motor vehicle accident. Mrs. Coffey obtained an order for damages from the learned trial judge (Bollen J.) in the Supreme Court of South Australia. That order was confirmed on appeal to the Full Court ((1983) 33 S.A.S.R. 254)). The present appeal is from the judgment and orders of the Full Court in that regard.

The accident in which Mrs. Coffey's husband was injured occurred in the early evening and involved a collision between a car being driven by Mr. Jaensch and a motor cycle which Mr. Coffey, who was a traffic constable on duty, was riding. It is common ground that the accident was caused by the appellant's negligence. Mr. Coffey was severely injured. Mrs. Coffey did not attend the scene of the accident but was taken, shortly afterwards, to the hospital where she saw her husband in obvious pain both before and between no less than three occasions when he was taken to the operating theatre that night. Among the injuries sustained by Mr. Coffey was a tear in the liver. When the respondent left the hospital late on the night of the accident, it was with the knowledge that her husband was "pretty bad". The following morning, at 5.3O a.m., the respondent was informed by telephone that her husband was in intensive care. At 8.3O a.m., she was advised that he had "had a change for the worse" and requested to "get up to the hospital as quickly as possible". Mr. Coffey had acute kidney problems as well as the damaged liver. The respondent stayed at the hospital all day not knowing whether her husband would survive. Mr. Coffey's condition did, however, gradually improve over the following weeks. He was discharged from hospital between six and seven weeks after the accident.

For a few days Mrs. Coffey coped well. Some six days after the accident however, the first symptoms of an anxiety depressant state began to emerge. Serious psychiatric illness, involving admission on one occasion to a psychiatric ward at Royal Adelaide Hospital, followed. Mrs. Coffey's relationship with her husband and their four month's old child was affected. More than a year later, she experienced internal pain and uterine bleeding which eventually led to a hysterectomy. This was diagnosed as being caused by stress and anxiety. The appellant does not contest the learned trial judge's finding that the things seen and heard by Mrs. Coffey on the day of the accident, and on the next day, caused her psychiatric illness and the later internal pain and bleeding.

The judgments in the courts below contain helpful analyses of the authorities relating to the question of liability in negligence for nervous shock. Both the learned trial judge and the members of the Full Court approached the case in accordance with the ordinary principles of the law of negligence and recognized that the primary question for the trial judge was to be posed in terms of reasonable foreseeability. They reached the conclusion that it was reasonably foreseeable by someone in the appellant's situation that the wife of a person seriously injured in an accident caused by his negligent driving might be called to the hospital and might suffer injury by nervous shock. They held that Mrs. Coffey was prima facie entitled to a verdict against the appellant and that there was nothing in either principle or the particular facts which altered that prima facie position. As they frankly acknowledged however, the path which led them to their conclusion was obscured by the shadows cast by a number of previous decisions including the decision of this Court in Chester v. Waverley Corporation.

In Chester's Case, the Court held, by majority, that the respondent local council was not liable in negligence for nervous shock suffered by a mother as a result of seeing the body of her seven year old son being recovered from a water-filled trench which the council had excavated in a public street and negligently failed to fence or otherwise render safe. The case was decided after cases such as Hambrook v. Stokes [1925] 1 KB 141 and Owens v. Liverpool Corporation (l939) 1 KB 394 had recognized that psychiatric illness resulting from shock was an injury capable of sounding in damages for the purposes of the law of negligence. The decision in Chester was expressed to turn on the question of reasonable foreseeability. It was held by the majority (Latham C.J., Rich and Starke JJ.) that, on the facts of the case, a finding was not open that harm to the plaintiff of the kind suffered was reasonably foreseeable:

"it cannot be said that such damage (that is, nervous shock) resulting from a mother seeing the dead body of her child should be regarded as 'within the reasonable anticipation of the defendant'. 'A reasonable person would not foresee' that the negligence of the defendant towards the child would 'so affect' a mother" (per Latham C.J., at p 10, using phraseology taken from Donoghue v. Stevenson and Re Polemis).

Examination of the majority judgments discloses, however, that Latham C.J. and Rich J. were openly influenced in their decision by policy considerations, particularly a "floodgates" fear of countless actions (see at pp 7-8 (Latham C.J.) and p 11 (Rich J: "the law must fix a point where its remedies s short of complete reparation for the world at large, which might appear just to a logician who neglected all the social consequences which ought to be weighed on the other side")). While such considerations may well be relevant to an overriding proximity requirement, they have little bearing on the question whether a risk of injury was reasonably foreseeable. In the only dissenting judgment, Evatt J. rejected the proposition that it was not reasonably foreseeable that a mother seeing the body of her drowned child taken from a water-filled trench might suffer injury in the form of nervous shock. His Honour adverted, however, to considerations of public policy ("the risk of too wide an extension of liability in cases where proof is beset with special difficulties": at p 43) and accepted (at p 44) what can accurately be described as an operative proximity limitation upon the ordinary test of reasonable foreseeability. The relevant duty of care to avoid action which might cause injury by way of nervous shock to those not subjected to risk of direct physical injury was, his Honour said, owed only to those already present at or in the immediate vicinity of the scene of the actual or apprehended casualty and those "who will 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" (underlining added). In other words, the relevant duty of care was seen by Evatt J. as being owed only to those who are already in the vicinity of the accident or who are brought, and could reasonably have been foreseen as being likely to be brought, to the scene of the accident to render comfort, aid or assistance.

The judgments of the majority in Chester's Case have not worn well with time. The proposition upon which those judgments is based is no longer, if it ever was, acceptable. It is simply out of accord with medical knowledge and human experience to deny that it is reasonably foreseeable that the shock suffered by a mother on seeing the body of her infant child, whom she was seeking, raised from the bottom of a water-filled trench might well be such as to cause psychoneurosis or mental illness. It must now be accepted that the conclusion of Evatt J. is, on the facts in Chester, plainly to be preferred to that of the majority. Even if Evatt J.'s judgment is accepted in its entirety however, it affords little comfort to Mrs. Coffey in the present case. Evatt J. limited the relevant duty of care to a duty owed to those who were either in the vicinity of the accident or who subsequently came to the scene of the accident. Mrs. Coffey did not go to the scene of the accident. As would be expected in a modern city with fast ambulance services, she went to the hospital to which her injured husband had been taken. Two questions arise. The first is: does the fact that Mrs. Coffey was not at the scene of the actual accident have the consequence that the risk of injury to her was not reasonably foreseeable? The second is: does the requirement of proximity or some other operative limitation or control upon the ordinary test of reasonable foreseeability preclude recovery by Mrs. Coffey of damages for the injury which she sustained? As has been said, both the learned trial judge and the Full Court of the Supreme Court held that the risk of injury by nervous shock to Mrs. Coffey was reasonably foreseeable. In my view, that finding was correct. It is reasonably foreseeable that the negligent driving of a vehicle on a public road is liable to cause physical injury to another user of the road and mental illness, in the form of nervous shock, to a loving spouse who is caught up in the immediate consequences of the accident and the worry and uncertainty of urgent post-accident medical treatment and surgery. The fact that a husband or wife goes straight to the hospital where his or her injured spouse is being, or has been, taken rather than to the actual scene of the accident cannot rationally be said to have the effect that the relevant risk of injury by way of nervous shock can no longer be regarded as having been reasonably foreseeable. For that matter, it is easy to envisage circumstances, such as an injury to the spinal cord caused in a bloodless accident, in which the shock sustained by involvement in the aftermath of the accident on attendance at the hospital would render insignificant any shock which was or would have been sustained by prior attendance at the scene of the accident. Indeed, the present would appear to be such a case in that the more serious injuries sustained by Mr. Coffey, namely the injuries to his liver and kidneys were only identified after he had been taken to hospital. If the scope of the duty of care of a user of the highway is to be limited as extending only to other users of the highway and those persons who actually attend the scene of an accident, it must be on some basis other than a genuine or realistic consideration of reasonable foreseeability. It follows that the answer to the first of the above questions is that the fact that Mrs. Coffey sustained nervous shock at the hospital rather than at the scene of the accident cannot rationally be seen as having the consequence that the risk of such injury to her was not reasonably foreseeable. I turn to the consideration of the second and more difficult question, namely, whether the requirement of proximity or some other overriding limitation operates to confine the class of persons to whom a duty of care in respect of a reasonably foreseeable risk of injury in the form of nervous shock is owed.

The changes and developments in views about liability for nervous shock which are to be found in cases during the last hundred years are, to a large extent, to be explained by reference to increasing knowledge of the nature of mental injury and illness caused by shock: the law, "marching with medicine but in the rear and limping a little" has "cautious step by cautious step" (per Windeyer J., Mount Isa Mines Ltd. v. Pusey, at pp 395 and 403) come to accept that mental illness occasioned by nervous shock is as much a real injury caused to a person as conventional bodily damage sustained as a result of physical impact. While one can find, in some reported cases, support for the view that reasonable foreseeability of injury by nervous shock necessarily gives rise to a duty of care (see, e.g., the judgment of Burbury C.J., Storm v. Geeves, at pp 262ff.), the actual attempts to identify classes of persons to whom that duty can be owed, which one finds in such cases, indicate the influence of what have been described as "subterranean" restraints. In most cases however, one finds the clear approach that the duty of care in nervous shock cases is restricted by external limitations upon the ordinary test of reasonable foreseeability. If the relevant cases had merely involved decisions of courts of first instance on questions of fact, one could, perhaps, seek to reconcile the actual decisions with the view that "the only rational and satisfactory test is one based on reasonable foreseeability" simpliciter by stressing that each decision must be viewed "in the circumstances of the particular case" (see Professor A.L. Goodhart, "The Shock Cases and Area of Risk", Modern Law Review, vol 16 (1953), 14, at pp.23-24). The critical cases were, however, mainly decisions of appellate courts on a question of law, namely, the question whether the common law recognized a relevant duty of care in ascertained circumstances. Unless one is to mutilate reasonable foreseeability to accord with operative but concealed considerations of policy, it must be acknowledged that the decided cases strongly support the view that the requirement of a relationship of proximity operates to impose particular criteria which must be satisfied by a plaintiff before a duty of care in respect of a reasonably foreseeable injury in the form of nervous shock will be held to have arisen in his or her favour. The requirement does not so operate in cases, such as Donoghue v. Stevenson itself, where mental injury or illness results from, or is associated with, conventional bodily injury caused to the affected person by actual physical impact or ordinary physical reaction. The limiting effect of the requirement is restricted to cases involving what may conveniently be called "mere psychiatric injury", that is to say, psychoneurosis and mental illness which is not the adjunct of ordinary bodily injury to the person affected.

The denial by the Privy Council, in Coultas, of any liability in negligence for mere psychiatric injury was openly based on policy considerations; in particular, a "floodgates" fear of a multitude of imaginary claims. Even on the qualities of sang-froid and fortitude ("the customary phlegm": Hay or Bourhill v. Young [1943] AC 92 , at p 117) which some later members of the Bench have thought are to be expected of ordinary members of the public (see, e.g., per Denning L.J., King v. Phillips [1953] 1 QB 429 , at p 442), it could hardly be seriously suggested that mental injury was not reasonably foreseeable as being liable to be sustained by a person in the predicament of the terrified Mrs. Coultas as she sat trapped in a buggy in the path of the oncoming train. The refusal of the courts in subsequent cases to follow the Privy Council's decision did not, however, involve rejection of the view that the effect of applicable overriding limitations upon the test of reasonable foreseeability was to limit the existence and scope of any duty of care in cases of nervous shock. To the contrary, one finds clear recognition of such limitations in the case which is generally accepted as having established liability in negligence for mere psychiatric injury, Dulieu v. White & Sons.

Mrs. Dulieu was the first of a trio of pregnant women whose misfortunes have played a significant part in the development of liability for negligently caused nervous shock. Her statement of claim alleged that she was behind the bar of her husband's public-house "when the defendants by their servant so negligently drove a pair-horse van as to drive it into the said public-house". It was alleged that Mrs. Dulieu in consequence sustained a severe shock, serious illness and gave premature birth to an abnormal child. The case came before the Kings Bench Division (Kennedy and Phillimore JJ.) on a point of pleading in the nature of a demurrer. It was held that the statement of claim disclosed a good cause of action. As had the Privy Council in Coultas however, Kennedy J . made clear his acceptance of an overriding proximity requirement, based on considerations of public policy, on liability for "nervous shock occasioned by negligence and producing physical injury". The requirement enunciated by Kennedy J. (at p 675) was that the shock must arise "from a reasonable fear of immediate personal injury to oneself". For his part, Phillimore J. found it unnecessary to admit the existence of any general duty of care. He placed particular reliance upon the fact that Mrs. Dulieu had been in "her home, where she had a right, and on some occasions a duty, to be" (at p 685), having already commented that it "may be (I do not say that it is so) that a person venturing into the streets takes his chance of terrors" (at p 684).

In the case involving the second of the pregnant women (Hambrook v. Stokes Bros. [1925] 1 KB 141 ), the English Court of Appeal (Bankes and Atkin L.JJ.; Sargant L.J. dissenting) rejected the limitation propounded by Kennedy J. in Dulieu and accepted that liability in negligence existed even though the shock had been caused by fear of injury to Mrs. Hambrook's children rather than by fear of injury to herself. The duty of care was not, however, identified by reference to an unqualified test of reasonable foreseeability. Overriding proximity criteria were again recognized as requiring to be satisfied. Bankes L.J. confined the decision to "cases where the facts are indistinguishable in principle from the facts of the present case" and where the shock resulted from what the person who sustained the injury "either saw or realized by her own unaided senses, and not from something which someone told her, and that the shock was due to a reasonable fear of immediate personal injury either to herself or to her children" (at p 152). Atkin L.J. envisaged the relevant duty of care as being restricted to one who was in "sight or sound of the accident" (at p 159).

The third of the unfortunate trio was Mrs. Bourhill. She is doomed to celebrity in the pages of the Law Reports, in language thought acceptable in another era, as the pregnant "fishwife". Her action failed because it was held by the House of Lords (Sc.) that the injury in the form of shock which she sustained was not, as a matter of law, within the limits of what was reasonably foreseeable. The circumstances of the case were that Mrs. Bourhill was in the process of being laden with her fish basket within some fifteen metres of the point of impact of a fatal collision and that, according to her evidence which had apparently been accepted by the Lord Ordinary in Scotland, the effect of the sudden noise of the crash was that she was reduced to "a pack of nerves" and did not know whether she was "going to get it or not". The case was, however, conducted in the House of Lords (see at p 97) on the basis that Mrs. Bourhill's injury in the form of nervous shock had not resulted from any fear of physical injury to herself. Be that as it may, examination of the speeches in Bourhill v. Young discloses the continued acceptance of external limitations upon the ordinary test of reasonable foreseeability. In that regard, three things should be mentioned: (i) the judgments of a majority of their Lordships confirmed the rejection in Hambrook v. Stokes Bros. of any rigid overriding rule restricting liability in negligence for pure nervous shock to shock arising from fear for one's own safety (see at pp 99,111 and 118 but cf. at pp 103, 105); (ii) one finds in the judgments an implicit (explicit in the case of Lord Porter, at p 119) acceptance of a refinement of the ordinary test of reasonable foreseeability of injury which has subsequently received general acceptance: in the case of mere psychiatric injury, the requirement of reasonable foreseeability will not be satisfied unless injury in that particular form, as distinct from personal injury generally (cf. per Atkin L.J., Hambrook v. Stokes Bros., at pp 157-158 and per Singleton L.J., King v. Phillips, at p 437), was reasonably foreseeable (see King v. Phillips, at p 441; The Wagon Mound (No 1) at p 426; Mount Isa Mines Ltd. v. Pusey, at p 402); and (iii) the judgments support the view that, at least in the case of mere nervous shock sustained as a result of an accident on the highway, there is an operative proximity requirement restricting any relevant duty of care to a duty to persons within the area within which physical injury might have been sustained: "persons on the highway or in premises adjoining the highway" (per Lord Russell of Killowen (at p 102) and Lord MacMillan (at p 104) both quoting Lord Jamieson in the Scottish Court of Session (1941) S.C. 395, at p 429; and see also per Lord Thankerton and per Lord Porter at pp 98-99 and p 117 respectively). Upon analysis, there is a degree of tension between (ii) and (iii) in that, if the relevant foreseeability requirement in a case involving mere psychiatric injury is a requirement of reasonable foreseeability of injury in that form, it is somewhat difficult to see any rational basis for a proximity requirement limiting liability for such injury to liability to those within the area of possible physical injury in the conventional sense. To the contrary, an inflexible overriding limitation in that particular form would plainly be liable to lead to results that do not, at least in a contemporary context, lie well either with the ordinary processes of legal reasoning or with common sense. It seems to me, with due respect, that that is well illustrated by the case of King v. Phillips.

In King v. Phillips, the English Court of Appeal upheld a finding of the trial judge (McNair J.) that a taxicab driver who had negligently backed his vehicle into a small boy riding his tricycle was not liable in negligence to the child's mother who, on hearing him scream, had suffered injury in the form of nervous shock when she looked out the window of her home and saw the tricycle under the cab. The basis of the decision of both McNair J. and a majority (Singleton and Hodson L.JJ.) of the Court of Appeal was the existence of a proximity requirement which operated to preclude recovery by reason of the fact that the mother's observations had been from the window of her home which was some six houses up a street from the intersection where the accident occurred where she was not within the area of potential physical danger. The rationale of a rule which determines the entitlement of a mother to recover damages for nervous shock, sustained as a result of her observation from the window of her home of an accident involving the possible death of her child according to whether she was herself within the area of potential physical danger remains unexplained in the judgments. The judgment of Denning L.J. demonstrates that an acceptable explanation of the denial of liability in the particular case is not to be found by reference to the ordinary test of reasonable foreseeability simpliciter. His Lordship, in an effort to accommodate that test to what had been said and decided in Hambrook v. Stokes Bros. and Bourhill v. Young, was driven to conclude that it was reasonably foreseeable that a mother would suffer nervous shock on seeing a runaway lorry enter a street in which she thought her children would be whereas it was not foreseeable that a mother would suffer nervous shock when, on hearing her small boy scream, she looked out the window of her home and saw his tricycle under a car and was unable to see any sign of him: the basis of the perceived distinction was, apparently, the difference between "the terrifying descent of the runaway lorry" and "the slow backing of the taxicab" (at p 442).

The reported Australian cases since 1939 when Chester v. Waverley Corporation was decided have tended to isolate that decision by treating it as confined to its particular facts. Reference should first be made to the decision of this Court in Mount Isa Mines Ltd. v. Pusey. That was a case involving mere nervous shock sustained by the plaintiff who went to the aid of a fellow employee who had been horribly burned when testing a switchboard in the premises in which both were employed. The plaintiff had not seen the accident but went to the scene immediately after its occurrence and became involved in its immediate aftermath. He was not related to the injured employee. He was held to be entitled to recover damages from the employer who had negligently failed to take reasonable steps to avoid the reasonably foreseeable occurrence of an incident such as that in which the fellow employee had been burnt. The decision in the case must, however, be understood in the context of the relationship of employer and employee and of the specific issues which had been raised by the notice of appeal: in that context, the case was seen by all members of the Court as turning on the limited issue whether it had been reasonably foreseeable that there was a risk of injury by mere nervous shock to an employee in the position of the plaintiff (see 125 CLR at pp.388-389, 391, 392-393, 401 and 410). While the case may, upon proper analysis, lend support for a general proposition that an employer is liable for damages in respect of nervous shock sustained by an employee at his place of employment in circumstances where the employer has failed to take reasonable steps to avoid a reasonably foreseeable risk of injury in that form, Pusey is not authority for any such unqualified proposition in a case where the proximity involved in the relationship of employer and employee is not to be found. No such special pre-existing relationship between plaintiff and defendant existed in any of the other three Australian cases to which specific reference should be made at this stage. They are Storm v. Geeves, Benson v. Lee (1972) VR 879 and Pratt and Goldsmith v. Pratt (1975) VR 378.

In the Tasmanian case of Storm v. Geeves, Burbury C.J. awarded damages for mere nervous shock to a mother who had not been within any area of physical risk but who had arrived at the scene of the accident in which her child had been mortally injured within seconds of its occurrence. His Honour also found that a duty of care to avoid mere psychiatric injury had existed in favour of a brother of the injured child who had been at the scene of the accident. In Benson v. Lee, Lush J. of the Supreme Court of Victoria found in favour of a mother who had been in her home some 100 metres - more than the distance in King v. Phillips - from the scene of an accident in which her child had been injured and had run to the scene of the accident after being informed of it by another child. In Pratt, a Full Court of the Victorian Supreme Court (Adam, Starke and Crockett JJ.) found against a mother who had sustained injury in the form of nervous shock as a result of observing the pitiable state of her daughter some "substantial" period ("some weeks, if not months") after the occurrence of the accident: it was only after such a period "that there first occurred the events that were causally connected with the mother's subsequent neurasthenic condition" (at p 382). In the course of their joint judgment, Adam and Crockett JJ. indicated what they saw as the then established proximity limitations upon the ordinary test of reasonable foreseeability in cases involving mere psychiatric injury caused by negligent driving of a vehicle on the highway in terms which lie well with what had been said by Evatt J. in his dissenting judgment in Chester's Case (see above). Their Honours said (at p 386):

"In our view, it is still the law that, while reasonable foreseeability is essential to any liability for negligence, such foreseeability by itself does not in all situations impose a duty of care. In the case of the driver of a vehicle on the highway, his duty does not, save in exceptional circumstances, extend beyond road users in the neighbourhood or persons who are themselves on or who have property adjacent to the roadway. Policy and reasons of humanity have extended by way of exceptional cases the primary duty to take care to those injured in the course of rescue attempts or the like: Chapman v. Hearse (1961) 106 CLR 112 ; (1962) ALR 379; Chadwick v. British Railways Board, (1967) 1 WLR 912 ; [1967] 2 All ER 945 ; The Law of Torts 4th ed. (1971) Fleming p 157. Likewise, these considerations have dictated that relatives of an accident victim suffering harm by reason of nervous shock should have a cause of action if their shock not only is foreseeable by the tortfeasor, but also the relative is in sufficient proximity to the tortfeasor's carelessness. ... But beyond this the law has not yet gone nor do we think it is for us to attempt to take it" (underlining added).

The statement, in the last sentence of the above passage, that "beyond this the law has not yet gone" now requires qualification, at least in so far as the law of England is concerned, in the light of the recent case of McLoughlin v. O'Brian [1983] 1 AC 410 where the plaintiff, whose husband and two children had been injured and whose third child had been killed in a road accident, was unanimously held by the House of Lords to be entitled to recover damages from the negligent driver for nervous shock sustained when she went to the hospital some two hours after the accident had occurred and there learned of her child's death and saw her husband and the two other children, injured and covered in mud and oil. The plaintiff had been at her home some two miles from the scene of the accident and had not been told of it until almost two hours after it had occurred.

All of their Lordships in McLoughlin recognized the relevance, at least to foreseeability, of what were called "proximity factors" - presence at the scene, direct observation of the accident and a close relationship with the victim. There was, however, disagreement between them on the question of underlying principle. Lord Scarman and Lord Bridge of Harwich were of the view that liability for mere psychiatric injury falls to be determined by reference to the test of reasonable foreseeability "simpliciter" but refined to require foreseeability of injury in that particular form. Lord Russell of Killowen confined his brief comments largely to the particular facts but appears not to have been prepared to accept any overriding limitation upon the ordinary test of reasonable foreseeability in nervous shock cases involving negligent use of a public road. Lord Wilberforce rejected the proposition that liability falls to be determined by reference to an unfettered test of reasonable foreseeability and acknowledged the existence of applicable proximity limitations, based on policy considerations, which confine the class of persons to whom a duty to avoid mere psychiatric injury is owed. He expressly identified (at p 420) those overriding limitations with Lord Atkin's "neighbour principle in Donoghue v. Stevenson" and commented that that principle was "saying that foreseeability must be accompanied and limited by the law's judgment as to persons who ought, according to its standards of value or justice, to have been in contemplation". Lord Edmund-Davies stated (at p 426) that he did not accept the approach that reasonable foreseeability of injury to the plaintiff through nervous shock was necessarily the sole test of liability but found it unnecessary to go beyond deciding that no overriding limitation based upon considerations of policy operated to exclude liability in the case before the House.

The general approach of Lord Wilberforce in McLoughlin, namely, that liability in negligence for mere psychiatric injury does not fall to be determined by reference merely to a test of reasonable foreseeability, is plainly that which accords with the overwhelming weight of prior authority. In any field of law however, there may arise the rare "landmark" case in which a court, usually a final appellate court, concludes that the circumstances are such as to entitle and oblige it to reassess the content of some rule or set of rules in the context of current social conditions, standards and demands and to change or reverse the direction of the development of the law. In such a case, the judicial function may be seen to impinge, albeit in a subordinate role in that it remains subject to being overridden by legislative action, upon the function of the legislature and it is at least possible that judicial method and ability are liable to be exposed as wanting. The reassessment of the content of the particular rule or rules of law in such a case is, nonetheless, an unavoidable concomitant of the proper performance of the judicial function if the law is not to lose contact with the social needs which justify its existence and which it exists to serve. Even in such a case, however, the distinction between the judicial and legislative functions should never be forgotten and any reassessment of the content of relevant rules should be approached with due regard to existing authority and established principle (see, generally, per Windeyer J. in Pusey, at p 396 and per Lord Edmund-Davies in McLoughlin, at pp.426-428). McLoughlin would appear to have been such a landmark case for the United Kingdom. It is arguable that the present should be seen as such a case for Australia. At the least, the present case requires, in the light of the speeches in McLoughlin, reassessment of the effect of the operation of a proximity requirement or other overriding control to limit liability in negligence for mere psychiatric injury sustained by a person as a result of actual or threatened injury to another in a road accident.

Despite the advances in knowledge of mental illnesses since the majority decision in Chester v. Waverley Corporation, much remains unexplained and uncertain even among experts. Expert opinion is available to support a number of differing (at least as regards matters of emphasis) propositions as to the likely causes of mere psychiatric injury consequent upon an accident involving actual or threatened serious physical injury to another. They include: that the most important explanation of nervous shock resulting from injury to another is the existence of a close, constructive and loving relationship with that person (a "close relative") and that it is largely immaterial whether the close relative is at the scene of the accident or how he or she learns of it (see, e.g., D.J. Leibson, "Recovery of Damages for Emotional Distress Caused by Physical Injury to Another", Journal of Family Law, vol. 15 (1976-77) 163, at p 196); that genuine nervous shock can be caused to a person caught up in a disaster in which neither that person or any one in a pre-existing relationship with him or her is physically injured or threatened (see, e.g., Raphael, Singh and Bradbury, "Disaster: The Helpers' Perspective", Medical Journal of Australia, (1980), 2: pp.445-447); that there is no necessary correlation between psychiatric illness caused by nervous shock and the severity of the "shock" (see, e.g., Parker, "Accident Litigant with Neurotic Systems", Medical Journal of Australia, (1977), 2:3l8, at p 320 but cf. NT Sidley, "Proximate Cause and Traumatic Neurosis", Bulletin of The American Academy of Psychiatry and the Law, vol. 11, (1983), p 197, at pp.200-202). There is continued expert support for the Freudian view which emphasized the importance of the element of sudden fright or surprise in neurosis following trauma (see E.K. Madruga, "Some Legal Aspects of Post-Traumatic Neurosis" in Obilos, Ballus, Monclus, and Pujo (eds.) Biological Psychiatry Today (1979), p 1549). There is also strong expert support for the proposition that there is a real - and foreseeable - risk that psychiatric illness may result from mental stress during the period consequent upon bereavement, particularly conjugal bereavement, or during a period of constant association and care of a badly injured spouse or other close relative independently of any shock sustained at the time of the actual death or injury. While it must now be accepted that any realistic assessment of the reasonably foreseeable consequences of an accident involving actual or threatened serious bodily injury must, in an appropriate case, include the possibility of injury in the form of nervous shock being sustained by a wide range of persons not physically injured in the accident, the outer limits of reasonable foreseeability of mere psychiatric injury cannot be identified in the abstract or in advance. Much may depend upon the nature of the negligent act or omission, on the gravity or apparent gravity of any actual or apprehended injury and on any expert evidence about the nature and explanation of the particular psychiatric injury which the plaintiff has sustained. That being so, it is not possible to define with precision the practical effect of the conscious alteration of the common law which would be involved in acceptance of the proposition that reasonable foreseeability simpliciter should be accepted as the determinant of liability for nervous shock. What is clear, however, is that that conscious alteration of the law would be much more far reaching and less discriminating than that effected by legislation in those Australian jurisdictions where legislative action was taken to overcome the effect of the majority decision in Chester.

Section 4(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) provides:

"The liability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by -

(a)

a parent or the husband or wife of the person so killed, injured or put in peril; or

(b)

any other member of the family of the person so killed, injured or put in peril where such person was killed, injured or put in peril within the sight or hearing of such member of the family."

Similar legislative provision has been made in the Australian Capital Territory (Law Reform (Miscellaneous Provisions) Ordinance 1955 (ACT), s 24) and the Northern Territory (Law Reform (Miscellaneous Provisions) Ordinance 1956 (NT), s 25). Of particular relevance for present purposes is the limited scope of the liability for nervous shock arising from the death, injury or peril of another which those provisions were intended to impose or confirm. Except in the case of a parent or spouse, that liability is limited to a member of the family who was in sight or hearing of the accident. It does not, in any case, extend to cover liability in respect of nervous shock sustained as a consequence of the death, injury or peril of the person whose negligence caused the accident.

If liability in negligence for nervous shock caused by the death, injury or peril of another in a road accident fell to be determined by reference to an unqualified test of reasonable foreseeability, there would be no proper basis for excluding liability on the part of the injured person, his or her estate or his or her compulsory third party insurer for mere psychiatric injury which was sustained by another as a result of the self-inflicted death, injury or peril of the negligent person in circumstances where the risk of such psychiatric injury was reasonably foreseeable (cf. Bourhill v. Young's Executor (1941) SC 395, at p 399). Nor, on an unqualified test of reasonable foreseeability, would there be any rational basis for excluding liability to a close relative or friend who has no contact with the accident or its immediate aftermath but who suffers reasonably foreseeable nervous shock by reason of constant social contact, as loyal nurse or companion, with the injured victim. It is conceivable that, if left to develop by analogy and logical necessity on a case by case basis, the common law in Australia may eventually change to the extent that it comes to recognize liability in some or all of such cases. It has not, however, recognized any such liability up to now. These are but two examples of types of case in which judicial abrogation of the operation of a proximity requirement or any other special control to limit liability for nervous shock would, unless the law were to revert to strict and rigid general notions of causation and remoteness of damage which were discarded in the wake of the Wagon Mound Cases or to the narrow approach to reasonable foreseeability which, apparently, enjoys some lingering support in at least some United States jurisdictions (see, e.g., Dillon v. Legg (1968) 29 ALR (3d) 1316, at p 1326: "excluding the remote and unexpected"; Hathaway v. Superior Court of Fresno County (1981) 169 Cal Rptr 435; Yandrich v. Radic (1981) 433 A 2d 459), involve the peremptory imposition of liability where the law, up to now, has recognized none. What, one is led to ask, is the pressing demand of principle or policy which necessitates the unqualified destruction of any such overriding limitation upon reasonable foreseeability? The answer, for this country, is that there is none. In so far as principle is concerned, both general principle and the general framework of the law of negligence allow, as has been seen, room for the operation of special overriding rules to exclude, in certain areas, the implication of a duty of care by reference to the ordinary test of reasonable foreseeability and recognize the requirement of proximity as a general overriding requirement of the law of negligence which may operate, in an appropriate case, to preclude or confine the prima facie duty to take reasonable care to avoid a reasonably foreseeable risk of injury to another. In so far as policy is concerned, the arguments for and against the removal of any overriding control of the test of reasonable foreseeability in cases of mere psychiatric injury are finely balanced and, as Lord Scarman pointed out in McLoughlin (at pp 430-431), more appropriate for legislative than judicial consideration. While the present case does call for a reassessment of the effect of the operation of the requirement of proximity and any other overriding control upon the test of reasonable foreseeability in cases of mere nervous shock, neither principle nor considerations of public policy require or justify the conclusion that no such requirement or control is operative in such cases. In that regard, it is relevant to note that Lord Scarman and Lord Bridge of Harwich appear, in their speeches in McLoughlin, not to have excluded completely the possibility that some overriding limitation on reasonable foreseeability might be appropriate in addition to the general refinement that, in cases of mere psychiatric injury, risk of injury in that particular form must have been reasonably foreseeable. Lord Scarman (at p 431) confined his statement that "common law principle requires the judges" to apply an "untrammelled" reasonable foreseeability test to "circumstances where it is appropriate." Lord Bridge (at p 441) appears to have restricted his acceptance of an unqualified foreseeability test in cases of mere psychiatric injury to cases where such injury is caused by the death, injury or apprehended injury of someone other than the person whose negligence was responsible for the accident, that is to say, of someone who was, in any event, a "negligent tortfeasor". Once mere psychiatric injury is accepted as sounding in damages for the purposes of the law of negligence and as being, in an appropriate case, reasonably foreseeable in the relevant sense, the duty of care in respect of a foreseeable risk of mere psychiatric injury is an independent and primary duty owed to the person at risk of such injury (see, per Barwick C.J. and Taylor J., Scala v. Mammolitti (1965) 114 CLR 153 , at pp 155-156 and 159, and per Windeyer J., Pusey, at p 408). That being so, the function performed by any rule confining the existence of a duty of care to avoid such injury to the case where there has been some breach of a duty of care owed to some other person to avoid ordinary bodily injury is that of an overriding control of the test of reasonable foreseeability.

The limitations upon the ordinary test of reasonable forseeability in cases of mere psychiatric injury are conveniently stated in negative form. Two of them have already been mentioned. The first of those is that reasonable foreseeability of risk of personal injury generally will not suffice to give rise to a duty of care to avoid psychiatric injury unassociated with conventional physical injury: a duty of care will not arise unless risk of injury in that particular form was reasonably foreseeable. The other is that, on the present state of the law, such a duty of care will not exist unless the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness is alleged to have caused the injury; there is no need to consider here whether this limitation should be more widely stated as excluding such a duty of care unless the carelessness was in any event wrongful in the sense that it involved a breach of a duty of care owed to the person who suffered or was at risk of physical injury (cf., e.g. a case where a defence of volenti non fit injuria is available against that person and see, generally, Scala v. Mammolitti, at pp 158-159). Both are satisfied in the present case and it is unnecessary to determine whether each or either of them is properly to be seen as part of the requirement of proximity of relationship or as constituting some other and special controlling rule based on policy considerations. As at present advised, I am inclined to see them as necessary criteria of the existence of the requisite proximity of relationship in the sense that, for policy reasons, the relationship will not be adjudged as being "so" close "as" to give rise to a duty of care unless they be satisfied. What is of critical importance for the purposes of the present appeal is the identification of the content of any further criteria included in the general line of demarcation which can, in the light of the cases, properly be drawn "between what is and is not a sufficient degree of proximity" in cases of mere psychiatric injury (cf. per Stephen J., The Dredge "Willemstad", at p 576). I turn to that question of identification.

The decisions involving mere psychiatric injury are obviously not all reconcilable. Some, such as Chester v. Waverley Corporation and King v. Phillips, are best seen as out of accord with preferable authority and as no longer acceptable even in relation to their own facts. The three more recent Australian decisions to which particular reference has been made - Storm v. Geeves, Benson v. Lee and Pratt - fall readily into an overall perspective and, with the guidance of what has been said and decided in other cases and in other jurisdictions, enable the identification of the area in which the boundary lies between what will and what will not satisfy the overriding requirement of proximity at least in cases involving mere psychiatric injury sustained as a result of carelessness in the use of a public road. The decided cases have been largely confined to circumstances where the psychiatric injury resulted from direct sensory observation at the scene of the apprehended or actual injury. The successful plaintiffs in cases involving those circumstances have included persons who have suffered psychiatric injury as a result of apprehended physical injury to themselves (see, e.g., Bell v. The Great Northern Railway Co; Dulieu v. White) and persons who have suffered such injury as a result of apprehended or actual physical injury to a son or daughter (see, e.g., Hambrook v. Stokes Bros.; Benson v. Lee), to some other close relative such as a brother (Storm v. Geeves), or to a stranger (Chadwick v. British Railways Board (1967) 1 WLR 912 ). While the relationship of the plaintiff with the threatened or injured person (e.g. that of spouse, parent, relative, rescuer or uninvolved stranger) may well be of critical importance on the question whether risk of mere psychiatric injury was reasonably foreseeable in the particular case, the preferable view would seem to be that a person who has suffered reasonably foreseeable psychiatric injury as the result of contemporaneous observation at the scene of the accident is within the area in which the common law accepts that the requirement of proximity is satisfied (cf. per Atkin L.J., Hambrook v. Stokes Bros., at pp 158-159) regardless of his particular relationship with the injured person. There was, as has been seen, at one time strong judicial support in the United Kingdom for the view that the requirement of proximity in a case involving mere psychiatric injury could not be satisfied unless the plaintiff was within the "area of physical risk" (see King v. Phillips). Such a restrictive view is not, in my view, supported by considerations of principle, fairness or policy. It has not been, and should not be, accepted in this country (see Benson v. Lee; Storm v. Geeves). Indeed, it has now been emphatically rejected in the United Kingdom (see McLoughlin v. O'Brian). Nor do the cases support the approach that the requirement can only be satisfied by a plaintiff who saw or heard the actual accident: both common sense and authority support the conclusion that the requirement of proximity of relationship may be satisfied by a plaintiff who has suffered psychiatric injury as a result of what he or she saw or heard in the aftermath of the accident at the scene (Benson v. Lee, esp. at p 880; Storm v. Geeves; Chadwick v. British Railways Board).

On the other hand, it would seem reasonably clear that the requisite duty relationship will not, on the present state of the law, exist in a case where mere psychiatric injury results from subsequent contact, away from the scene of the accident and its aftermath, with a person suffering from the effects of the accident. An example of psychiatric injury suffered as a result of such post-accident contact is that which may result from the contact involved in the nursing or care of a close relative during a period subsequent to immediate post-accident treatment (see, e.g., Pratt).

There are at least two possible rationales of the distinction, for the purposes of the requisite duty relationship, between cases where psychiatric injury was sustained as a result of direct observation at the scene of the accident and its aftermath and cases where the psychiatric injury was sustained from subsequent contact, away from the scene of the accident and its aftermath, with a person suffering from the effects of the accident. One such rationale lies in considerations of physical proximity, in the sense of space and time, between the accident and its immediate aftermath on the one hand and the injury on the other. The other lies in considerations of causal proximity in that in the one class of case the psychiatric injury results from the impact of matters which themselves formed part of the accident and its aftermath, such as the actual occurrence of death or injury in the course of it, whereas, in the other class of case, the psychiatric injury has resulted from contact with more remote consequences such as the subsequent effect of the accident upon an injured person. The choice between one or other or a combination of these two distinct rationales may obviously be of importance in the more precise identification of any essential criteria of the existence of the requisite duty relationship. On balance, I have come to the conclusion that the second, which justifies the line of demarcation by reference to considerations of causal proximity, is to be preferred as being the less arbitrary and the better attuned both to legal principle and considerations of public policy. It has been said in many cases that the general underlying notion of liability in negligence is "a general public sentiment of moral wrongdoing for which the offender must pay" (see, e.g., Donoghue v. Stevenson, at p 580; The Dorset Yacht Co. Case, at p 1038; The Dredge "Willemstad" Case, at p 575). A requirement based upon logical or causal proximity between the act of carelessness and the resulting injury is plainly better adapted to reflect notions of fairness and common sense in the context of the need to balance competing and legitimate social interests and claims than is a requirement based merely upon mechanical considerations of geographical or temporal proximity.

Two factors arguably militate against including the present case within the area in which the requisite duty relationship exists. The first factor is that Mrs. Coffey sustained psychiatric injury at the hospital and not at the scene of the collision. The second is that she sustained it as a result of the combined effect of what she there saw and heard.

It has already been seen that the requirement of proximity in a case of mere psychiatric injury is satisfied where injury was sustained as a result of observation of matters involved in the aftermath of a road accident at the actual place of collision. The facts constituting a road accident and its aftermath are not, however, necessarily confined to the immediate point of impact. They may extend to wherever sound may carry and to wherever flying debris may land. The aftermath of an accident encompasses events at the scene after its occurrence, including the extraction and treatment of the injured. In a modern society, the aftermath also extends to the ambulance taking an injured person to hospital for treatment and to the hospital itself during the period of immediate post-accident treatment. It would, in my view, be both arbitrary and out of accord with common sense to draw the borderline between liability and no liability according to whether the plaintiff encountered the aftermath of the accident at the actual scene or at the hospital to which the injured person had been quickly taken. Indeed, as has been mentioned, in some cases the true impact of the facts of the accident itself can only occur subsequently at the hospital where they are known. In the present case, as in McLoughlin, the aftermath of the accident extended to the hospital to which the injured person was taken and persisted for so long as he remained in the state produced by the accident up to and including immediate post-accident treatment. Mrs. Coffey sustained her psychiatric injury by reason of what she saw and heard at the hospital while her husband was under such treatment. Her psychiatric injuries were the result of the impact upon her of the facts of the accident itself and its aftermath while she was present at the aftermath of the accident at the hospital. That being so, she was not, in my view, precluded from recovering damages for those injuries by reason of the fact that she did not attend at the actual scene of the collision. What, then, is the effect of the fact that her nervous shock was caused by what she was told, as well as by what she observed, at the hospital? One can point to a number of judicial statements to the effect that a person "who suffers shock on being told of an accident to a loved one cannot recover damages from the negligent party on that account" (per Denning L.J., King v. Phillips (at p 441) and see Hambrook v. Stokes Bros., at pp 152 and 159). A requirement that the plaintiff must have perceived the peril or injury by his or her "own unaided senses" (Hambrook, at p 152) has not, however, enjoyed unqualified support either in the United Kingdom or Australia (see, e.g., Schneider v. Eisovitch [1960] 2 QB 43 O; Andrews v. Williams (1967) VR 831) and the question whether the requirement of proximity precludes recovery in a case where reasonably foreseeable psychiatric injury is sustained as a consequence of being told about the death or accident, remains, in my view, an open one. It is somewhat difficult to discern an acceptable reason why a rule based on public policy should preclude recovery for psychiatric injury sustained by a wife and mother who is so devastated by being told on the telephone that her husband and children have all just been killed that she is unable to attend at the scene while permitting recovery for the reasonably, but perhaps less readily, foreseeable psychiatric injury sustained by a wife who attends at the scene of the accident or at its aftermath at the hospital when her husband has suffered serious but not fatal injuries. It is unnecessary to pursue the question here however since the authorities plainly indicate that the overriding limitation upon the test of reasonable foreseeability does not preclude recovery in a case, such as the present, where the psychiatric injury was sustained as a result of the combined effect of what a plaintiff himself or herself observed and what he or she was told while at the scene of the accident or its aftermath. Thus, in Hambrook v. Stokes Bros. (at p 159), Atkin L.J. indicated that Mrs. Hambrook would be precluded from recovering damages only if it appeared that her psychiatric injury had been "in no way caused" by her own observation but "solely (by) the report of the injury" made to her by a third person and it is apparent that the plaintiff's psychiatric injuries in each of Benson v. Lee and Storm v. Geeves resulted from the combined effect of the report of the accident and their own subsequent observations of its aftermath. Indeed, while the question was not raised in argument and it is unnecessary to express a concluded view upon it, the position would appear to be that, provided that psychiatric injury resulted from what was seen or heard at the scene of the accident or its aftermath, the fact that the injury was subsequently, and reasonably foreseeably, aggravated as a result of being told of the deterioration or death of the person injured will neither preclude recovery nor require apportionment between different causes (see, per Wineyer J., Pusey, at p. 407 and note the helpful discussion in the article by P.G. Heffey, "The Negligent Infliction of Nervous Shock In Road and Industrial Accidents" in The Australian Law Journal, vol 48 (1974) 196, at pp.204-211). It follows that neither the requirement of proximity of relationship nor any other control upon the test of reasonable foreseeability operated, in the circumstances of the present case, to preclude the existence of a common law duty of care owed to Mrs. Coffey in respect of the psychiatric injury which she sustained.

There remains to be considered a separate submission that the verdict in Mrs. Coffey's favour should be set aside on the ground that the injury she sustained, while caused by what she saw and heard at the hospital, can be explained only by reference to an abnormal susceptibility on her part to such injury. This submission was rejected by both the learned trial judge and the Full Court. It can be shortly disposed of for the reason that the factual basis for it is not to be found either in the evidence or in the findings of the courts below. By reason of previous events in her life, Mrs. Coffey was more than usually dependant on both her husband and the stability of her marriage with the consequence that she was more than usually predisposed "to neurotic upset, anxiety and depression". That dependence and resulting predisposition were not however sufficient to prevent the finding, which was made, that she was "a person of normal fortitude" or to warrant a conclusion that the injury by nervous shock which she sustained was either beyond the limits of reasonable foreseeability or was other than the reasonably foreseeable result of Mr. Jaensch's breach of the duty of care which he owed her. The fact that such injury may have been more likely or more severe in Mrs. Coffey's case than in the case of a person of a different disposition does not absolve the defendant of liability in negligence in respect of it (see, generally, Storm v. Geeves, at pp 268-269; Pusey, at pp 390, 406; Benson v. Lee, at p 881; Brice v. Brown [1984] 1 All ER 997 and note the discussion by White J. in Donjerkovic v. Adelaide Steamship Industries Pty. Ltd. (1980) 24 SASR 347, at p 358).

It should be stressed, at the risk of undue repetition, that the fact that the requisite duty relationship in a case of mere psychiatric injury may be satisfied by a plaintiff who is not a close relative of the injured person should not be seen as indicating that the relationship between the plaintiff and the injured person will be unimportant on the prior question of reasonable foreseeability of injury in that form. In many, if not most, cases of mere psychiatric injury, the major difficulty in the path of the plaintiff is that of showing that there was, as a matter of law, a reasonable foreseeability of injury in that form to a class of persons of which he or she was a member. The factors which will be relevant on that question cannot be precisely identified in the abstract since much will depend on the nature of the particular act or omission or on the gravity or apparent gravity of the particular accident and its aftermath. It would, however, require unusual circumstances for a finding to be open that psychiatric injury sustained by a plaintiff by reason of mere uninvolved observation of apprehended or actual injury to a person who was not a close relative came within the range of reasonable foreseeability in the sense that the plaintiff came within the class of person to whom injury of that kind could reasonably have been foreseen (see Chapman v. Hearse (1961) 106 CLR 112 , at p 121). The position may, of course, be quite different in the case of a stranger who is actively and foreseeably involved in an accident or its aftermath in a role such as that of a rescuer (see Chadwick v. British Railways Board).

Brief mention should be made of two other matters. First, what has been written above in relation to the class of case in which the common law recognizes a relevant duty of care on the part of a user of a public road to avoid mere psychiatric injury by use of the road for conventional purposes may prove to be inapplicable to, or may require modification in its application to, other situations in which a more or less extensive duty of care may be recognized (cf. Mount Isa Mines Ltd. v. Pusey; Brown and Another v. The Mount Barker Soldiers' Hospital Incorporated (1934) SASR 128; Wilkinson v. Downton; Bunyan v. Jordan). Second, there is no provision in the statute law of South Australia corresponding to s 4(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) (see above) and it is unnecessary to consider the question whether such legislative provisions, where they are to be found, should be construed as being intended to have a limiting, as well as an ameliorating, effect on the common law (cf. Scala v. Mammolitti, at pp 158-160; Pusey, at p 408).

The appeal should be dismissed.