Tame v New South Wales; Annetts v Australian Stations Pty Ltd

Facts

In Tame, a police officer incorrectly recorded the plaintiff's blood alcohol reading following a traffic accident, and the plaintiff suffered a recognised psychiatric illness upon learning of the error. In Annetts, the parents of a 16-year-old jackaroo suffered psychiatric illness after being assured their son would be supervised, only to learn he had died alone in the outback. Both cases raised the question whether a defendant owes a duty of care to avoid causing pure mental harm where the plaintiff did not witness a sudden shocking event.

Issues

1. Whether liability for negligently inflicted pure mental harm requires that the plaintiff witnessed a sudden shocking event. 2. Whether liability requires that a person of normal fortitude would have suffered mental harm in the plaintiff's circumstances. 3. The correct test for determining when a duty of care to avoid pure mental harm arises.

Holding

The High Court held, by majority, that there is no rigid rule requiring a sudden shocking event or that the plaintiff must be a person of normal fortitude as a threshold condition for the existence of a duty of care; the ordinary Donoghue v Stevenson principles of foreseeability and proximity govern whether a duty arises in any given case.

Ratio decidendi

A duty of care to avoid causing pure mental harm is not subject to any fixed rule requiring sudden shock or normal fortitude; liability turns on whether psychiatric injury to the particular plaintiff was reasonably foreseeable in all the circumstances, assessed by reference to the general principles governing the existence of a duty of care.

Obiter dicta

Several justices expressed the view that the concept of 'recognisable psychiatric illness' remains a necessary threshold requirement to distinguish compensable mental harm from mere grief or distress, and that the circumstances of a plaintiff's relationship with the defendant remain highly relevant to the foreseeability inquiry. Gleeson CJ noted that normal fortitude may remain relevant to the remoteness of damage even if not a threshold duty question.

Significance

Tame and Annetts authoritatively dismantled the rigid 'sudden shock' and 'normal fortitude' preconditions that had previously constrained recovery for pure mental harm in Australia, establishing that the ordinary principles of negligence govern such claims; the decision directly informed the legislative reforms to pure mental harm in the Civil Liability Acts enacted across Australian jurisdictions from 2002 onwards.

Key authorities

• Donoghue v Stevenson Donoghue v Stevenson [1932] AC 562applied
• Jaensch v Coffey Jaensch v Coffey (1984) 155 CLR 549considered
• Perre v Apand Pty Ltd Perre v Apand Pty Ltd (1999) 198 CLR 180applied
• Harriton v Stephens Harriton v Stephens (2006) 226 CLR 52cited
• Mount Isa Mines Ltd v Pusey Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383considered
• Bourhill v Young Bourhill v Young [1943] AC 92distinguished
• McLoughlin v O'Brian McLoughlin v O'Brian [1983] 1 AC 410considered