Reinforcing historic distinctions between mental and physical injury: The impact of the civil liability reforms

Christine Forster and Jeni Engel*

Mental injury has been differentiated from physical injury since its entry into Australian tort law, with mental injury consistently subject to the most onerous regime. In 2002 in its Review of the Law of Negligence, the Ipp Panel supported the historic distinction between physical and mental injury and recommended further (restrictive) changes to the common law rules in relation to mental injury. This article considers and evaluates the reforms which were introduced into six Australian jurisdictions in relation to mental injury in the tort of negligence in response to the Ipp Panels recommendations arguing that the rationale for differentiating pure mental injury from physical injury and consequential mental injury is nebulous. It argues that the reforms operate to reinforce and magnify historic distinctions between physical and mental harm despite increasing recognition in the medical literature of the interrelationship between physical and psychiatric injury; despite the recognition of the professional ability of psychiatrists and psychologists to accurately pinpoint and diagnose mental injury; despite extensive documentation of the far-reaching and devastating impact that psychiatric injury has on victims, families and the community; and despite evidence that early and adequate treatment of mental injury can prevent a raft of damaging and costly personal and societal consequences.

INTRODUCTION
Since its entry into Australian tort law, mental injury has been differentiated from physical injury, with different legal regimes applying to each. While the legal rules applicable to physical and mental injury have differed throughout the 20th century, it is mental injury that has consistently been subject to the most onerous regime.1 The considerable expansion of the tort of negligence subsequent to the landmark case of Donoghue v Stevenson [1932] AC 5622 also saw the expansion of the situations in which injured plaintiffs could recover for mental injury, culminating in the High Court case of Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317. In 2002, in response to a perception that the judiciary was nding new areas of liability, creating new bodies of law, and awarding damages that the community simply will not tolerate,3 and a perceived public indemnity crisis, the Commonwealth Government appointed the Ipp Panel to make recommendations on how to reform the common law of negligence. The main objective of the inquiry was to establish methods to limit liability and quantum of damages arising from personal injury and death.4 In the ensuing
*

Christine Forster, LLB (Otago), BA (Massey), MA (Carleton), PhD (USyd), Postgraduate Diploma in Legislative Drafting (University of South Pacic), Senior Lecturer, Faculty of Law, University of New South Wales; and Jeni Engel, BA (Hons), DipEd, LLB (UNSW), Adjunct Lecturer; Coordinator and Teacher LLB Indigenous Support Programs, Faculty of Law, University of New South Wales. Correspondence to: Dr Christine Forster and Ms Jeni Engel, Faculty of Law, University of New South Wales, Sydney, NSW 2052, Australia; email: c.forster@unsw.edu.au; j.engel@unsw.edu.au.

Handsley E, Mental Injury Occasioned by Harm to Another: A Feminist Critique (1996) 14 Law and Inequality 391; Vines P, San Roque M and Rumble E, Is Nervous Shock Still a Feminist Issue? The Duty of Care and Psychiatric Injury in Australia (2010) 18 Tort L Rev 9. See also Underwood P, Is Ms Donoghues Snail in Mortal Peril (2004) 12 Torts LJ 1 at 10. New South Wales Parliamentary Debates (13 November 2003) p 4980 (Hon R Carr MP). Ipp D, Cane P and MacIntosh I, Review of the Law of Negligence (Commonwealth of Australia, Canberra, 2002) p ix (Ipp

2 3 4

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report, Review of the Law of Negligence (the Ipp Report), the Ipp Panel recommended a raft of changes to common law negligence, including the law relating to mental injuries, and recommended that the changes be reected within a single statute to be enacted in each jurisdiction.5 The Ipp Panel supported the historic distinction between physical and mental injury and recommended further (restrictive) changes to the common law rules in relation to mental injury on the basis of three rationales:
(a) the existence and extent of mental harm may be difficult to diagnose objectively and to prove for legal purposes; (b) the number of people who may suffer pure mental harm as a result of a single act of negligence may be greater and less easy to foresee than the number of people who may suffer physical harm as a result of a single act of negligence; and (c) because resources are limited, it is more important to compensate people for physical harm than for pure mental harm.6

This article considers and evaluates the reforms which were introduced into six Australian jurisdictions in relation to mental injury in the tort of negligence in response to the Ipp Panels recommendations.7 This article argues that the rationale for differentiating pure mental injury from physical injury and consequential mental injury is nebulous. Indeed, the new reforms operate to reinforce and magnify historic distinctions between physical and mental harm despite increasing recognition in the medical literature of the interrelationship between physical and psychiatric injury;8 the recognition of the professional ability of psychiatrists and psychologists to accurately pinpoint and diagnose mental injury;9 extensive documentation of the far-reaching and devastating impact that psychiatric injury has on victims, families and the community;10 and evidence that early and adequate treatment of mental injury can prevent a raft of damaging and costly personal and societal consequences.11 The next part of the article traces the common law rules that have governed recovery for mental injuries in the tort of negligence in Australia until the recent civil liability reforms. This is followed by an overview of the statutory changes to claims for mental injury in the tort of negligence introduced in six Australian jurisdictions following the Ipp Report. The premise that mental injury is hard to objectively diagnose and easy to fabricate is then challenged; the argument that different legal responses to claims arising out of mental and physical injuries are justied because it is less easy to foresee the number of persons who might suffer mental injury is examined; and the view that it is less important to compensate mental injury than physical injury is disputed. The conclusion suggests that reinforcing historic distinctions between physical and mental injury will not only hinder the early treatment of mental injury but also lead to augmented costs for individuals and society.

A BRIEF

HISTORY OF COMMON LAW MENTAL INJURY IN

AUSTRALIA

The tort of negligence, which emerged to supplement the trespass torts by providing a means of compensating persons injured by the indirect, rather than direct, careless actions of others, was a
Report), http://www.revofneg.treasury.gov.au/content/review2.asp viewed 8 February 2012.
5 6 7

See Ipp Report, n 4, p 1. See Ipp Report, n 4, p 135.

Civil Liability Act 2002 (NSW); Civil Liability Act 1936 (SA); Civil Liability Act 2003 (Tas); Civil Liability Act 2002 (WA); Wrongs Act 1958 (Vic); Civil Wrongs Act 2002 (ACT). Large M, Relationship Between Compensation Claims for Psychiatric Injury and Severity of Physical Injuries from Motor Vehicle Accidents (2001) 175(3) MJA 129. Malhi G, Professionalizing Psychiatry: From Amateur Psychiatry to a Mature Profession (2008) 118(4) Acta Psychiatrica Scandinavica 255; Bhugra D, Professionalism and Psychiatry: Past, Present, Future (2009) 17(5) Australasian Psychiatry 357.

10

Jorm A, Jacomb P and Christensen H, Attitudes Towards People with a Mental Disorder: A Survey of the Australian Public and Health Professionals (1999) 33 Australian and New Zealand Journal of Psychiatry 77; Holden L, Psychological Distress is Associated with a Range of High Priority Health Conditions Affecting Working Australians (2010) 34(3) Australian and New Zealand Journal of Public Health 304 at 304. McGorry P, Every Me and Every You: Responding to the Hidden Challenge of Mental Illness in Australia (2005) 13 Australasian Psychiatry 3.

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response to the dramatic societal, economic and technological changes of the industrial revolution.12 Awarding damages for physical injuries was largely uncontroversial and easily accommodated within the emerging tort of negligence. Although the development and rapid growth of the discipline of psychiatry at the turn of the 20th century placed mental injuries (historically labelled nervous shock in law) into the tort law arena, its entry was marked with suspicion and it was differentiated from physical injury.13 In Australia, the clear demarcation of physical injury from mental injury began with Victorian Railways Commissioners v Coultas (1888) LR 13 App Cas 222 at 225, an action brought in response to injuries suffered by Mary Coultas who was riding in a buggy that was negligently ushered by an attendant gatekeeper onto railway tracks in front of an approaching train. The train did not hit the buggy but as a result of the near miss, the plaintiff, Mary Coultas, suffered a miscarriage and was ill for several months. The injury was indirect as the immediate cause of the nervous shock was the fast-approaching train, rather than the negligent act of ushering the buggy across the tracks. Consequently, the action was framed within the emerging tort of negligence rather than the tort of assault. The medical evidence at trial was contradictory, with one of the witnesses attesting that Coultas was suffering from profound impression on the nervous system, nervous shock, and the shock from which she suffered would be a natural consequence of that fright (at 225). Another witness saw it differently, arguing that Mary Coultas had not suffered any physical damage and that her symptoms were wholly attributable to nervous shock (at 225). On appeal in the Privy Council, the judges reasoned (at 226) that mere sudden terror (surely a contradiction in terms) without physical harm could not sustain an action for damages since a nervous or mental shock, cannot be considered a consequence which, in the ordinary course of things, would ow from the negligence of the gate-keeper (at 226). Additionally, the judges expressed the now familiar oodgates fears at the prospect of extending the tort of negligence to recognise liability in these circumstances, in particular because of a fear of fraudulent claims, and declined to do so (at 226). Despite the unsuccessful claim in Coultas, mental injury was gradually accepted in Australia as a valid category of recovery in the tort of negligence in particular circumstances; however, it was surrounded with a plethora of extra rules distinguishing it from physical injury.14 Although these rules changed throughout the 20th century, they consistently operated to restrict claims for mental injuries. Generally (at least until the civil liability reforms), if the mental injury was consequential on a physical injury it was not subject to any extra tests or controls and in this context therefore was treated equally with physical injuries. However, if the mental injury was the only injury suffered and categorised accordingly as pure mental injury, then extra rules applied.15 During the early to mid 20th century, three rules emerged determining the circumstances when claims for pure mental injury could succeed: the physical impact rule, the zone of danger rule and the bystander rule.16 The physical impact rule allowed recovery for mental injury only if a plaintiff suffered some form of physical contact.17 In some instances, perhaps to circumvent the rigidity of the rule, even the most minimal contact could suffice.18 The physical impact rule was, however, soon complemented by the zone of danger rule that allowed recovery without physical impact if the plaintiff feared imminent harm to her or his person. In Dulieu v White [1901] 2 KB 669, 12 years after Coultas, the pregnant publican was tending bar when a coachman negligently drove his horses and carriage into the public house. As a result, the plaintiff was severely shocked, became ill and some weeks later, she gave birth
12 13

Friedman L, Law in America: A Short History (Modern Library, New York, 2002) p 207.

Mendelson D, The Interfaces of Medicine and Law. The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate, Aldershot, 1998) p 92. See Chamallas M and Kerber L, Women, Mothers and the Law of Fright: A History (1990) 88 Mich L Rev 814. See Mullany N and Handford P, Tort Liability for Psychiatric Damage (The Law Book Co, Sydney, 1993) p 11. See Mendelson, n 13, for a detailed overview of the development of the three rules. Rea v Balmain New Ferry Co (1986) 17 LR (NSW) 92 at 98 (Darley CJ).

14 15 16 17 18

In Kenney v Wong Len 128 A 343 (1925) it was held to be sufficient impact when a mouse hair in a spoonful of stew touched the roof of the plaintiffs mouth.

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to a mentally disabled premature baby. Although, as in Coultas, her injuries were characterised as emotional (and not physical), the judge held that the emotional injuries resulting from a fear of imminent physical danger to the plaintiff herself sufficed and he awarded damages. The third rule, the bystander rule, extended recovery to a bystander who feared for the safety of a loved one, typically a mother, who suffered mental injury after she witnessed the death or injury of her child.19 In Mount Isa Mines v Pusey (1970) 125 CLR 383 at 394-395 (Windeyer J) the category of bystander was extended to include a rescuer who developed acute schizophrenia after he attempted to assist co-workers badly injured as a result of an industrial accident. In Australia, two High Court cases, the rst, Jaensch v Coffey (1984) 155 CLR 549 in 1984 and the second, Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 in 2002, while nonetheless determining that claims for pure mental injury should be treated more rigorously than for physical injury, reduced and dismissed some of the previous rules as unnecessary and arbitrary.20 In Jaensch, the High Court articulated the rules for an award of damages due to a pure mental injury as: rst, the plaintiff must be the recipient of a shock, dened as meaning a 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 plaintiffs mind and causes a recognizable psychiatric illness (at 567, Brennan J); secondly, the mental injury must result either from fear of injury to oneself21 or fear of injury to a loved one;22 and thirdly, the plaintiff must either directly perceive the event causing the injury or arrive at its immediate aftermath (at 604, Deane J). While prior to Jaensch the meaning of immediate aftermath was conned to the scene of the accident, the plaintiff, who went straight to the hospital after her husband was knocked from his motorcycle and spent several weeks not knowing whether her husband would live or die, successfully recovered for her mental injury. The court recognised, therefore, the articiality and arbitrariness of conning the concept of immediate aftermath to the scene of the accident and removed the requirement of physical proximity between the plaintiff and the original site of injury, thereby extending the scope of what could be considered to fall within the immediate aftermath of an accident. Finally, the High Court conrmed that the plaintiff must suffer a recognisable psychiatric injury excluding normal reactions to shock and trauma such as grief, sorrow and distress.23 Although physical injury also had to be established by expert evidence, this requirement excluded minor emotional harm while (until the civil liability reforms) minor physical injury was not excluded.24 The second High Court case, Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, was more dramatic in the changes it brought to the Australian legal landscape in relation to pure mental injury. The decision in the two claims (brought together) ameliorated the rules surrounding pure mental injury on the basis that they were arbitrary and unprincipled in several ways. First, several preconditions for recovery, namely the requirement for a sudden sensory perception, the requirement to either witness the shocking event or its immediate aftermath and the requirement to be in a proximate relationship with the primary victim, were held to no longer be determinative of a successful claim. Instead, these factors were regarded as relevant, but not determinative, to deciding whether the defendant should have reasonably foreseen the likelihood of
19

See Hambrook v Stokes Bros [1925] 1 KB 141. In this case a mother witnessed a runaway lorry racing out of control toward her child. As a result of the incident, the pregnant mother haemorrhaged and miscarried. See also Chamallas and Kerber, n 14 at 817.

20

See Dietrich J, Nervous Shock: Tame v New South Wales and Annetts v Australian Stations Pty Ltd (2003) 11 Torts LJ 11; Handford P, Psychiatric Injury: Duty to Employees Children in Notes (2003) 11 Tort L Rev 127; Davies D, Pure Psychiatric Injury: Recovery for Compensation (2003) 23(8) Proctor 24. The decision in Dulieu v White [1901] 2 KB 669 was affirmed in Jaensch v Coffey (1984) 155 CLR 549 at 567 (Brennan J). The decision in Hambrook v Stokes Bros [1925] 1 KB 141 was affirmed in Jaensch v Coffey (1984) 155 CLR 549 at 594 (Deane J). McLoughlin v OBrian [1983] 1 AC 410 at 431. Luntz H, Assessment of Damages for Personal Injury and Death (4th ed, Butterworths, Sydney, 2002) p 7.

21 22

23 24

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mental injury to the class of persons to which the plaintiff belongs (at [15]). Additionally, the requirement for the plaintiff to experience a sudden shock was adapted to include circumstances such as in Annetts where the two plaintiffs gradually became aware that their 16-year-old son had perished in the Australian outback and, secondly, the requirement that the plaintiff directly perceive the shocking event or its immediate aftermath was extended to incorporate other means of communication such as the telephone, since in Annetts, the plaintiffs learnt of their sons disappearance and death primarily through telephone conversations (at [10]).25 The High Court judges also stated that the relationship between the plaintiffs and the defendant was relevant in determining reasonable foreseeability, such as in the case of Annetts where a relationship of trust and responsibility existed between the defendant, who employed the 16-year-old boy, and the plaintiffs. That relationship made it more likely that the defendant should have foreseen the subsequent mental injury to the plaintiffs (at [357]). Finally, the High Court claried the relevance of normal fortitude. This requirement does not automatically exclude the vulnerable plaintiff, since the issue is not the subjective fortitude of the actual plaintiff but rather the fortitude, evaluated objectively, of the average person in the position of the plaintiff (at [25], [30]). In Australia, therefore, until the civil liability reforms that followed the release of the Ipp Report, as discussed in the next section, a gradual trend in favour of treating mental injury on a similar basis to physical injury is clearly discernible. While the Ipp Reports claim that, post Annetts, Australian law has now reached the point where the basic principles governing liability for mental harm are essentially the same as those governing liability for physical harm26 is not completely accurate, it is apparent that the treatment of physical and mental injury had moved substantially closer together. Undoubtedly, this shift was attributable in part to the changing societal attitudes to mental injury, but also to the increasing recognition of the sound scientic foundations of psychiatry and psychology, and the recognition of the real and tangible harms that psychiatric injuries cause.
CIVIL LIABILITY LAW REFORMS The catalyst for statutory tort law reforms in Australia was twofold. First, a series of high-prole cases in the tort of negligence were documented extensively in the Australian media throughout the late 1990s.27 Fuelled by allegations that the law was moving too far and too fast in compensating victims of personal injury in new situations, the judiciary was criticised for nding new areas of liability, creating new bodies of law, and awarding damages that the community simply will not tolerate.28 Secondly, during the same period, there were dramatic increases in professional insurance premiums and reports that various professional and community groups were having difficulties in obtaining liability insurance or nding that the costs had risen so steeply that their activities were threatened.29 The Ipp Panel was formed and instructed to determine a method for the reform of the common law with the objective of limiting liability and quantum of damages arising from personal injury and death.30 Subsequently, the Ipp Panel made a series of recommendations for the reform of the common law in relation to the tort of negligence.31 In relation to mental injury, the Ipp Panel stated that the law has historically made it harder for people to recover damages for negligently caused pure mental harm than for negligently caused physical harm (and consequential mental harm) based on three rationales. The rst rationale was that
25 26 27

THE

See Dietrich, n 20; Handford, n 20; Davies, n 20. See Ipp Report, n 4, p 140.

Callinan R, Medical Negligence and Professional Indemnity Insurance Background Paper No 2/2001 (NSW Parliament, Sydney 2001) p 1, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/ResearchBp20012 viewed 8 February 2012.
28 29

New South Wales Parliamentary Debates (13 November 2003) p 4980 (Hon R Carr MP).

Handford P, Psychiatric Injury Law in England and Australia Drawing Closer Together? in Legal Issues (2007) 15 JLM 176 at 188. See Ipp Report, n 4, p ix. See Ipp Report, n 4, p 1.

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the existence and extent of mental harm may be difficult to diagnose objectively and to prove for legal purposes. The second rationale was that the number of people who may suffer pure mental harm as a result of a single act of negligence may be greater and less easy to foresee than the number of people who may suffer physical harm as a result of a single act of negligence. The third and nal rationale was that because resources are limited, it is more important to compensate people for physical harm than for pure mental harm.32 Six of the eight Australian jurisdictions subsequently introduced legislative changes in relation to mental injury in the tort of negligence which largely reinforce the historic divisions between physical and psychiatric injury. While some of the reforms mirror to some extent the common law position articulated in Annetts, many of the reforms introduce more stringent requirements. This is particularly so in New South Wales, Victoria, South Australia and Tasmania, as discussed below. All six jurisdictions differentiate consequential mental injury from pure mental injury and require extra controls if the injury is pure. However, all six jurisdictions also provide that no duty of care is owed in relation to mental injury, whether pure or consequential, if the defendant should have foreseen mental injury to a person of normal fortitude in the plaintiffs position, thereby introducing new controls on consequential mental injury.33 All six jurisdictions require proof of a recognised psychiatric illness rather than the common law standard of a recognisable psychiatric illness.34 All six jurisdictions detail the requirements for establishing a duty of care and while the requirements are to some extent modelled on Annetts, in all jurisdictions the result is a regime that is more restrictive than under the common law. New South Wales, South Australia, the Australian Capital Territory, Western Australia and Victoria identify four factors which should be considered by the judiciary in determining whether in the circumstances the defendant should have foreseen pure mental injury to the plaintiff. The four factors are: whether the mental injury was suffered as a result of a sudden shock;35 whether the plaintiff witnessed at the scene a person being killed, injured or put in peril;36 the nature of the relationship between the plaintiff and any person killed, injured or put in peril;37 and whether there was a pre-existing relationship between the plaintiff and the defendant.38 Tasmania requires the consideration of only two factors: whether the mental injury was suffered as a result of a sudden shock; and whether there was a pre-existing relationship between the plaintiff and the defendant.39 In New South Wales, Victoria, South Australia and Tasmania, even if a duty of care is established, liability will be denied unless additional requirements are satised. Victoria requires that the plaintiff either witness at the scene the victim being killed, injured or put in peril or that the plaintiff be in a close relationship with the victim but does not dene close relationship.40 Tasmania requires that
32 33

See Ipp Report, n 4, p 135.

Civil Liability Act 2002 (NSW), s 32(1); Civil Liability Act 1936 (SA), s 33(1); Civil Liability Act 2003 (Tas), s 34(1); Civil Liability Act 2002 (WA), s 5S; Wrongs Act 1958 (Vic), s 74; Civil Wrongs Act 2002 (ACT), s 34(1). Civil Liability Act 2002 (NSW), s 31; Civil Liability Act 1936 (SA), s 53(2); Civil Liability Act 2003 (Tas), s 33; Civil Liability Act 2002 (WA), s 5T; Wrongs Act 1958 (Vic), s 75; Civil Wrongs Act 2002 (ACT), s 35. Civil Liability Act 2002 (NSW), s 32(2)(a); Civil Liability Act 1936 (SA), s 33(2)(a)(i); Civil Liability Act 2003 (Tas), s 34(2)(a); Civil Liability Act 2002 (WA), s 5S(2)(a); Wrongs Act 1958 (Vic), s 72(2)(a); Civil Wrongs Act 2002 (ACT), s 34(2)(a). Civil Liability Act 2002 (NSW), s 32(2)(a)(ii); Civil Liability Act 1936 (SA), s 33(2)(a)(ii); Civil Liability Act 2002 (WA), s 5S(2)(b); Wrongs Act 1958 (Vic), s 72(2)(b); Civil Wrongs Act 2002 (ACT), s 34(2)(b).

34

35

36

37

Civil Liability Act 2002 (NSW), s 32(2)(a)(iii); Civil Liability Act 1936 (SA), s 33(2)(a)(iii); Civil Liability Act 2002 (WA), s 5S(2)(c); Wrongs Act 1958 (Vic), s 72(2)(c); Civil Wrongs Act 2002 (ACT), s 34(2)(c).
38

Civil Liability Act 2002 (NSW), s 32(2)(a)(iv); Civil Liability Act 1936 (SA), s 33(2)(a)(iv); Civil Liability Act 2002 (WA), s 5S(2)(d); Wrongs Act 1958 (Vic), s 72(2)(d); Civil Wrongs Act 2002 (ACT), s 34(2)(c). Civil Liability Act 2003 (Tas), s 34(2)(a)-(b). Wrongs Act 1958 (Vic), s 73(2).

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that the plaintiff either witness at the scene the victim being killed, injured or put in peril or the immediate aftermath of the victim being killed or injured or that the plaintiff be a close member of the family of the victim.41 New South Wales requires that the plaintiff either witness at the scene the victim being killed, injured or put in peril or that the plaintiff be a close family member of the primary victim.42 In both Tasmania and New South Wales, close family member is dened as including only the following persons: the parent of the victim or other person with parental responsibility for the victim; the spouse of the victim (including de facto); a child or stepchild of the victim or any other person for whom the victim has parental responsibility; or a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.43 In South Australia, liability will be denied unless the plaintiff is either physically injured in the accident or present at the scene of the accident when the accident occurred; or is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident.44

OBJECTIVE

DIAGNOSIS AND LEGAL PROOF

Proof of mental injury

The rst of three reasons posited by the Ipp Report for a legal approach that subjects mental injury to more rigorous controls than physical injury is that the existence and extent of mental harm may be difficult to diagnose objectively and to prove for legal purposes.45 This rationale has underscored the different treatment of pure mental injuries in the tort of negligence since its emergence, beginning with Lord Wensleydales 1861 ruling in the House of Lords: Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.46 The Privy Council in Coultas noted that mental injury created the potential for opening a wide eld of imaginary claims (at 225-226) and other commentators have suggested that mental injuries can easily be faked and that, in any event, those who are suffering such injury should be able to pull themselves together (at 225-226). The adoption of a requirement for a recognised psychiatric illness in all civil liability legislation before an award for damages can be made is reective of that rationale. It is, however, out of step with current research and expert opinion which has seen marked and rapid improvements in medical science and psychiatric techniques.47 Since the second half of the 20th century, the eld of psychiatry has expanded signicantly and has established itself as a recognised professional discipline. In recognition of the professionalism of psychiatry in 1948, the World Health Organisation included for the rst time a section dening mental disorders in the sixth revision of the International Classication of Diseases (ICD-6). The 10th and latest edition of the ICD was published in 1993. Additionally, in the United States, the American Psychiatric Association Committee on Nomenclature and Statistics developed and published in 1952 the rst edition of the Diagnostic and Statistical Manual: Mental Disorders (DSM-I), the latest edition of which is the fourth, published in 2000. The Ipp Panel noted that the lack of suitable forensic criteria of mental illness is a serious cause of dissatisfaction with the current law amongst various interested groups and recommended that a panel of experts including experts in forensic psychiatry and psychology, be appointed to develop a set of guidelines, for use in legal contexts, for assessing whether a person has suffered a recognised psychiatric illness.48 However, medical science can, with an acceptable degree of certainty, establish
41 42 43 44 45 46 47 48

Civil Liability Act 2003 (Tas), s 32(2). Civil Liability Act 2002 (NSW), s 30(2). Civil Liability Act 2002 (Tas), s 32(3); Civil Liability Act 2002 (NSW), s 30(2). Civil Liability Act 1936 (SA), s 53. See Ipp Report, n 4, p 135. Lynch v Knight (1861) 9 HLC 577 at 598; 11 ER 854. Butler D, Identifying the Compensable Damage in Nervous Shock Cases (1997) 5 Torts LJ 67 at 73. See Ipp Report, n 4, p 136.

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the existence of the various types of mental illnesses and, in many instances, isolate their causes.49 Indeed, the diagnostic criteria of mental disorders have become more specic and detailed, and many structured approaches have been developed to measure the symptoms that comprise psychiatric disorders.50 For example, the most common (and likely) mental injury to afflict those who experience a traumatic event is post-traumatic stress disorder (PTSD). The DSM-IV describes the causative trauma of PTSD as involving experiencing, witnessing, or being confronted with event(s) which involve actual or threatened death or serious injury or threat to physical integrity (Criterion A1). It may result from fear of imminent harm to oneself, through direct perception of the event which endangers others or through learning of the event through a third party. The specic identied symptoms (persistent re-experiencing of the traumatic event (Criterion B), persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (Criterion C), and persistent symptoms of increased arousal (Criterion D)) must be present for more than one month (Criterion E), and the disturbance must cause clinically signicant distress or impairment in social, occupational, or other important areas of functioning (Criterion F). DSM-IV also subdivides PTSD into acute (duration of symptoms less than three months) and chronic (duration of symptoms more than three months). The diagnosis of PTSD will rely on the information provided to the practitioner but this is not dissimilar to the method adopted for the diagnosis of many physical injuries whereby patients relay symptoms to their medical practitioner. Some physical injuries such as back pain or muscle pain can be diagnosed entirely on the basis of information provided by the patient while other physical illnesses may be diagnosed in part through observation and examination and in part through information provided to the practitioner by the patient. The law does not baulk at compensating other intangible harms such as pain and suffering, loss of enjoyment of life and loss of reputation without requiring a recognised psychiatric illness. In the tort of defamation, eg, the purposes of an award of damages include compensation for factors such as hurt, anxiety, loss of self-esteem, sense of indignity and outrage.51 The Victorian Court of Appeal held in a 2008 case that the defendants disclosure of a videotape to third parties that depicted sexual activity between the plaintiff and the defendant constituted breach of condence, and compensated the plaintiff for the mental distress and embarrassment caused by the videotapes. The court, citing with approval a recent line of English authority, held that, in an action for breach of condence, damages can be awarded to a plaintiff for mental distress falling short of a recognisable psychiatric injury caused by that breach of condence.52

Recognised versus recognisable

The legislation uniformly enables recovery of damages for mental injury that amounts to recognised psychiatric illness rather than, as in the common law, a recognisable psychiatric illness (emphasis added). Some commentators doubt whether this difference is signicant.53 Recognised and recognisable are not, however, semantically identical. According to the Macquarie Dictionary, recognised means known to be as specied.54 Although the Ipp Report notes that the catalogue of mental illnesses is not closed,55 the perspective is backward-looking and implies a condition that
49 50 51

See Mullany and Handford, n 15, p 42. Pilgrim D, The Survival of Psychiatric Diagnosis (2007) 65(3) Social Science and Medicine 536.

Watson P, Remedies for Novel Torts: Invasion of Privacy (2008) 1 Journal of the Australasian Law Teachers Association 339. Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236.

52 53

Luntz H, Recovery of Damages for Negligently Inicted Psychiatric Injury: Where Are We Now? (2005) 79(12) Law Inst J 48 at 50; Seeto N, Shock Rebounds: Tort Reform and Negligently Inicted Psychiatric Injury (2004) 26 Syd LR 239 at 295.

54

See Macquarie Dictionary online, http://www.macquariedictionary.com.au/149.171.0.0.16@929FF934643685/-/p/dict/article_ display.html?type=title&rst=1&mid=3&last=3&current=1&result=1&DatabaseList=dictbigmac&query= recognised&searchType=ndrank viewed 21 June 2011.
55

See Ipp Report, n 4, p 136.

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has been identied and classied by an authoritative and specialist body.56 According to the Oxford English Dictionary, recognisable means capable of being recognised or possible to recognise.57 Hence, its perspective is forward-looking and requires merely that an illness is diagnosable by a professional as a psychiatric injury. There is arguably greater scope at common law therefore than under the civil liability regimes for a court to acknowledge the existence of a psychiatric illness, whether or not it has formal medical recognition. For example, it has only been since 1980 that PTSD has been recognised as a psychiatric illness in DSM-IV. However, it has long been recognisable under different names such as shell shock or combat fatigue and is now diagnosed in highly traumatic contexts other than war, such as rape, domestic violence or incest. Is it necessary or desirable for the law to wait for psychiatry to catalogue a form of mental harm before it will provide compensation or should the law be able to take the lead and compensate emerging forms of mental harm? There has not been appellate consideration of whether a recognised psychiatric illness creates a higher standard of proof than the common law recognisable psychiatric illness. In Whayman v Motor Accidents Insurance Board [2003] TASSC 149 the issue was whether or not the plaintiffs have established that they have suffered compensable nervous shock (at 149, Cox CJ) which was dened in the relevant legislation as a recognisable psychiatric illness (at 149). In that case, the plaintiffs claimed damages for a depressive illness which had persisted for over four years after the death of their youngest son, Matthew, in a car accident. The forward-looking approach of Cox CJ is apparent in his nding that although the illnesses suffered by the plaintiffs did not fall within any of the DSM-IV criteria for diagnosis as a mental disease, both plaintiffs were experiencing intense grief and their inability to adjust to that grief was so unusual that it indicated an abnormality of their minds such as can fairly be described as indicative of disease (at 27, Cox CJ). Such a nding might be unsustainable under the backward-looking standard of recognised.

UNFORESEEABLE

PLAINTIFFS The Ipp Panels second rationale for the retention of stricter rules for pure mental injury than for physical injury is that the number of people who may suffer pure mental harm as a result of a single act of negligence may be greater and less easy to foresee than the number of people who may suffer physical harm as a result of a single act of negligence.58 Opening the oodgates is perceived to have detrimental effects on the administration of justice, including the overtaxing of judicial resources, the imposition of disproportionate liability and impediments to the functioning of society with wide liability discouraging parties from engaging in particular conduct that may involve the risk of inciting emotional responses.59 Indeed, it can be cogently argued that, rst, a defendant should know what is expected of her or him so therefore only foreseeable injuries should attract liability; secondly, that the likely number of claimants should be nite and identiable; and, nally, that there should be proportionality between the blameworthiness of the act of negligence and the amount of damages payable. If the injuries are not readily or easily foreseeable, then the culpability of the act is arguably lessened since the risk of injury from the negligent act is lower. It seems reasonable, therefore, that injuries, physical and mental, that are not foreseeable to the defendant should not be recoverable. Indeed, this is the rationale that underscores the neighbour principle adopted in the landmark case of Donoghue v Stevenson [1932] AC 562 and continues to be the benchmark for establishing a duty of care when a negligent act causes physical injury.

Foreseeability of mental Injury

Are more stringent requirements for mental injury than for physical injuries justied on the basis that, rst, there is a genuine likelihood that a single act of negligence has the potential to cause mental injury to a much larger number of victims than physical injury and, secondly, in many situations, it
56 57

Mendelson D, The New Law of Torts (Oxford University Press, Melbourne, 2007) p 434.

Oxford English Dictionary online, http://www.dictionary.oed.com/cgi/entry/50199326?single=1&query_type= word&queryword=recognized&rst=1&max_to_show=10 viewed 24 May 2011.

58 59

See Ipp Report, n 4, p 1. See Butler, n 47 at 74.

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will be more difficult for a negligent person to foresee the potential class of victims, even though it may still be reasonably foreseeable? While the industrial revolution is held responsible for creating the conditions for much larger numbers of physical injuries than previously possible, the conditions for mass psychiatric injuries suffered by those witnessing or experiencing traumatic and shocking events through, eg, the media and the internet, can be attributed to the modern era. The potential for large groups of persons being injured in this way is graphically illustrated by the events on 11 September 2001 at the World Trade Center and the Pentagon, since it could include not just those who were present in the vicinity and experienced or witnessed the catastrophe, but also the television viewers who saw the events unfold live. Indeed, a national survey in the United States assessing the immediate mental health effects of the terrorist attacks found 44% of adults who witnessed the event reporting one or more substantial symptoms of stress.60 Another classic example, which led to an unsuccessful tort case in Britain, was an action by the relatives of some of the people killed in the Hillsborough football stadium disaster, who claimed they suffered mental injury as a result of the negligence of police officers in mismanaging the crowds. After the police allowed some spectators to be conned in the pens of the terraces, they were crushed following an inux of many thousands of fans through a narrow tunnel at the rear of the terrace. The claimants included those who had been present at the match and witnessed the events unfold and also those who had witnessed the televised scenes, both live and on news bulletins subsequently transmitted.61 However, although it is evident that there is potential for large and possibly indeterminate numbers of persons who witness traumatic events caused by the negligence of another to suffer mental injuries, it is not clear that this can be differentiated from the potential for mass physical injuries due to other catastrophic events. Consider, eg, the effects of toxic byproducts of industry or pharmaceutical products which have caused physical injuries to a large and sometimes indeterminate number of persons.62 For example, Agent Orange is a herbicide and defoliant used by the United States military in its herbicidal warfare program during the Vietnam War. More than 21,000,000 gallons of Agent Orange were sprayed across South Vietnam resulting in 400,000 deaths and disabilities, and 500,000 children born with birth defects.63 Another example is the industrial disaster that took place at a Union Carbide pesticide plant in the Indian city of Bhopal, Madhya Pradesh, in 1984. The plant released 42 tonnes of toxic methyl isocyanate gas, exposing more than 500,000 people to toxic gases. It is estimated that 8,000 to 10,000 people died within 72 hours, and that 25,000 have since died from gas-related diseases.64 A third example is the pharmaceutical drug Thalidomide, sold in a number of countries across the world from 1957 until 1961, to relieve morning sickness. Thousands of pregnant women took the drug to relieve their symptoms and more than 10,000 children in 46 countries were born with deformities.65 All of these catastrophes led to protracted court actions resulting in huge damages payouts. For example, the United Kingdom manufacturers of Thalidomide, Distillers
60

Schuster M, Stein B and Jaycox L, A National Survey of Stress Reactions After the September 11, 2001, Terrorist Attacks (2001) 345 NEJM 1507; Galea1 S, Vlahov D, Resnick H, Ahern J, Susser E, Gold J, Bucuvalas M and Kilpatrick D, Trends of Probable Post-traumatic Stress Disorder in New York City After the September 11 Terrorist Attacks (2003) 158(6) American Journal of Epidemiology 514; DiGrande L, Neria Y, Brackbill R, Pulliam P and Galea S, Long-term Posttraumatic Stress Symptoms Among 3,271 Civilian Survivors of the September 11, 2001, Terrorist Attacks on the World Trade Center (2010) American Journal of Epidemiology, http://www.aje.oxfordjournals.org/content/early/2010/12/28/aje.kwq372.full.pdf+html viewed 8 February 2012.
61 62 63

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 392-395. Ellis N, Introduction in Rudlin A (ed), Toxic Tort Litigation (American Bar Association, Washington, 2007) p 3.

Ngo A, Taylor R, Roberts C and Nguyen T, Association Between Agent Orange and Birth Defects: Systematic Review and Meta-Analysis (2006) 35(5) Int J Epidemiol 1220; Schecter A and Constable J, Commentary: Agent Orange and Birth Defects in Vietnam (2006) 35(5) Int J Epidemiol 1230.

64

Broughton E, The Bhopal Disaster and Its Aftermath: A Review (2005) 4 Environmental Health, http://www.ehjournal.net/ content/4/1/6/about viewed 8 February 2012.
65

Strmland K, Philipson E and Andersson G, Offspring of Male and Female Parents with Thalidomide Embryopathy: Birth Defects and Functional Anomalies (2002) 66 Teratology 115.

602

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Biochemicals, paid approximately 28 million in damages to the Thalidomide Trust in the 1970s;66 Dow and other manufacturers of Agent Orange reached an out-of-court settlement of US$180 million in 1984;67 and in 1989 Union Carbide reached a settlement of US$470 million.68 The potential for mass physical injuries in the modern era seems as credible, therefore, as the potential for mass psychiatric injury and while both raise questions of oodgates and the ability of the tort system to accommodate a large volume of claims, differentiating one from the other seems questionable.

Placing justiable and fair controls on mental injury

If it is genuinely more difficult for an actor to foresee potential mental injuries and therefore to curtail their negligent acts and, as a consequence, extra controls upon pure mental injury are required, then they should be founded on sound, justiable and fair bases. Any arbitrary demarcation in liability that results in persons in similar circumstances being treated differently may be seen as producing incongruous and indefensible results.69 An examination of the controls placed on mental injury, both consequential and pure, by the civil liability reforms reveals, however, that, while some controls appear to be grounded in credible rationales, others appear arbitrary. In all six jurisdictions, a duty of care arises only if the defendant should have foreseen mental injury to a person of normal fortitude in the plaintiffs position.70 This applies for both pure mental injury and consequential mental injury.71 An inquiry into the reaction of a normal person, however, is not required in relation to physical injuries where an injury to a person in a foreseeable class of persons is recoverable regardless of whether it is an ordinary response. Indeed, the eggshell skull rule specically requires the defendant to restore the plaintiff to their pre-injury state, regardless of whether any unknown and particular vulnerability of the plaintiff generates an unusual response. Recent situations in which plaintiffs have not recovered for their mental injuries on the basis they were not of normal fortitude include the following: While repulsive, it was not reasonably foreseeable that a cleaner at a police station would develop post-traumatic stress disorder, manifesting with a xation that she was infected with AIDS or some similar disease and depression, as a result of being splashed in the face by water contaminated by faeces.72 It was not foreseeable that horse owners would develop PTSD and depression after contaminated feed purchased from the defendant led to the death of their favourite horse, Topsy. Hoeben J held the plaintiffs were not of normal fortitude since horses do become ill and die suddenly from a number of natural causes and owners are expected to have a certain level of resilience.73 In a third example, the plaintiff developed a depressive reaction with a range of reactive symptoms, anxiety and depressed mood after the faulty insertion of a contraceptive implant.74 Hulme J, in holding that her injuries were unforeseeable, referred to the evidence of the plaintiffs psychiatrist that the injury suffered by the plaintiff was complex and unusual and beyond the reaction which might normally be expected.75
66

Chodock R, Yolkut D and Connolly D, Insuring the Continued Solvency of Pharmaceutical Companies in the Face of Product Liability Class Actions (2005) 40(3) Tort Trial Insurance Practice Law Journal 997. Sand R, How Much is Enough? Observations in Light of the Agent Orange Settlement (1985) 9 Harvard Environmental Law Review 283. Engel S and Martin B, Union Carbide and James Hardie: Lessons in Politics and Power (2006) 20(4) Global Society 475. See Butler, n 47 at 69.

67

68 69 70

Civil Liability Act 2002 (NSW), s 32(1); Civil Liability Act 1936 (SA), s 33(1); Civil Liability Act 2003 (Tas), s 34(1); Civil Liability Act 2002 (WA), s 5S(1); Wrongs Act 1958 (Vic), s 72(1); Civil Wrongs Act 2002 (ACT), s 34. Hollier v Sutcliffe [2010] NSWSC 279.

71 72

Tomisevic v Menzies Wagga Southern Pty Ltd [2005] NSWCA 178 at [39] (Beazley JA) (Mason P and Pearlman AJA agreeing).
73 74 75

Crump v Equine Nutrition Systems Pty Ltd t/as Horsepower [2006] NSWSC 512 at [257] (Hoeben J). Hollier v Sutcliffe [2010] NSWSC 279. See Hollier v Sutcliffe [2010] NSWSC 279 at [233].

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Additionally, the judiciary must consider extra factors (described previously) in determining whether a duty of care arises in the circumstances in instances of pure mental injury. These factors are not considered in instances of physical injury or consequential mental injury. The rst factor is whether or not the mental harm was suffered as the result of a sudden shock. In Annetts the plaintiffs became aware of their sons disappearance, and then his death, at a distance, and over a period of time in a way that was agonisingly protracted rather than sudden. Gleeson CJ stated that a rigid distinction between psychiatric injury suffered by parents in those circumstances, and similar injury suffered by parents who see their son being run down by a motor car, is indefensible (at [36]). As well as noting the capricious nature of such a distinction, the court held that in any case, a shock, either sudden or gradual, should not be determinative of a duty of care. While the civil liability legislation does not designate this factor as determinative of a duty, the use of the word sudden implies that in situations where the shock is gradual and protracted, a duty is unlikely to arise. This represents a shift to the pre-Jaensch legal position and one roundly criticised by the Australian High Court judges in Annetts as indefensible. The second factor (in all jurisdictions except Tasmania) is whether the plaintiff witnessed at the scene a person being killed, injured or put in peril. In New South Wales, Victoria, South Australia and Tasmania, this factor additionally forms the basis of a separate prescriptive requirement which, if unsatised, will deny liability unless the primary victim is a close family member of the plaintiff.76 The judicial interpretation of this factor is narrow, requiring actual perception and excluding the aftermath (except in Tasmania where it is explicitly included in the legislation). In Burke v New South Wales [2004] NSWSC 725 the plaintiff heard the noise of a landslide which buried a ski lodge he had left ve minutes earlier. He realised shortly afterwards that it had been destroyed and went back to his hotel to see if his best friend had returned there. In nding him absent, he went to the scene of the buried lodge where he heard no voices and it was deadly silent (at [76]). He realised at that moment that his best friend was likely to have been buried in the landslide. The court held he did not satisfy the statutory requirements because he did not see or hear any person and did not witness at the scene the alleged victim being killed, injured or put in peril since by the time he reached the scene all the victims were buried (at [81]). Subsequently, in the New South Wales case of Wicks v State Rail Authority (NSW); Sheehan v State Rail Authority (NSW) (2010) 241 CLR 60 the court again considered the meaning of the phrase whether the plaintiff witnessed at the scene a person being killed, injured or put in peril. In this case, a passenger train operated by State Rail derailed at high speed. Seven out of 50 passengers died and many others were injured. The two plaintiff police officers were called to the scene. When they arrived soon after the accident, they forced their way into damaged carriages and attempted to relieve the suffering of injured persons and remove them to a safe place. The High Court held that the phrase must be construed as a whole and that the event did not nish when the train came to rest as a twisted collection of carriages (at [37], [45]). Instead, the plaintiffs were exposed to a series of shocking experiences during the period they were at the scene (at [37]). Although the High Court judgment in Wicks presents a more generous interpretation of the legislation than Burke (and the lower courts), the outcome still requires that the plaintiff directly perceive the person being killed, injured or put in peril. In Wicks, this was established because people were still at risk, still dying and still in need of rescue. Such an interpretation may not have assisted the plaintiff in Burke where the primary victims perished immediately and were buried under a pile of mud, invisible to the observer. It is, however, arbitrary to distinguish between the two scenarios: in both cases the negligence of a third party was the direct cause of the mental injury to the plaintiffs who were placed in shocking and traumatic situations. As the High Court has stated in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 (prior to the civil liability reforms), the lack of direct perception by the plaintiff children of the death of their father should not be fatal to their action and that it was perfectly reasonable for an employer to have in contemplation the children of an employee. The relaxation of a requirement for the plaintiff to directly perceive the shocking
76 Civil Liability Act 2002 (NSW), s 30; Civil Liability Act 1936 (SA), s 53; Civil Liability Act 2003 (Tas), s 32; Wrongs Act 1958 (Vic), s 73.

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event to include witnessing the aftermath of the event was on the basis that there was no apparent rationale for distinguishing between the plaintiff who is at the scene of the accident and the plaintiff who rushes to the hospital and sees their injured loved one not knowing if they will live or die, as occurred in Jaensch. In Annetts, the majority judges went further and discarded the requirement to perceive the shocking event or its aftermath as a precondition of liability, stating that while distance in time and space from a distressing phenomenon, and means of communication or acquisition of knowledge concerning that phenomenon may be relevant in assessing reasonable foreseeability they are not themselves decisive of liability (at [225], Gummow J). Modern communication devices such as mobile telephones may bring shocking news as immediate to the senses as actual sight and sound of the catastrophe: This is the reality of the world in which the law of nervous shock must now operate.77 The third factor to be considered in determining whether a duty of care arises (in all jurisdictions except Tasmania) is the nature of the relationship between the plaintiff and any person killed, injured or put in peril. In the common law, the requirement that there be a relationship between the primary victim and the plaintiff, while initially restricted to categories such as parent and child or between spouses, was extended by Brennan J in Jaensch to a close constructive and loving relationship with that person (at 457). The use of the wording nature of the relationship in the civil liability statutes is therefore reective of the common law, although it is potentially more exible in its wording. Apart from family members, it might also include close (affectionate) friendships, collegiate relationships and co-workers as well as rescuers.78 As a factor to be considered in determining whether there is a duty of care, it seems justiable to suggest that a negligent actor should be able to reasonably foresee mental injury to a person with a close relationship of some kind to the primary victim while it might be much less foreseeable that a person who does not have any kind of relationship to the primary victim would suffer a mental injury. McHugh J observed in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [48] that the determining factor in reasonable foreseeability of psychiatric injury, and hence the duty of care, should be the closeness and affection of the relationship rather than the legal status of the relationship. In New South Wales, Victoria, South Australia and Tasmania, if the plaintiff did not witness at the scene a person being killed, injured or put in peril, the plaintiff must be a close family member of the primary victim.79 Victoria does not dene a close family member, leaving to the court the discretion to interpret the phrase. However, in New South Wales, South Australia and Tasmania, a close family member is dened in the legislation with a prescriptive list of persons, mirroring Anglo-Celtic notions of the nuclear family. The narrowing of the meaning of close family member in this way does not reect the recognition of broader concepts of family in other contexts, including legislation,80 appropriate to a multicultural Australia. While the nuclear family of mother, father and children remains statistically prominent in Australia, it is slowly declining, and increasing numbers of people are being raised in family structures quite different from this model. This variety originates in the cultural diversity of Australias indigenous and immigrant populations from diverse regions such as Western Europe, Southern Europe, the Middle East and many groups from East and Southeast Asia, which bring with them different modes of family and household composition.81 Aboriginal immediate families, eg, include horizontal groups of classicatory kin such as mothers sisters, classied as mothers, and mothers sisters children, classied as brothers and sisters and a number of other
77 78

Coates v Government Insurance Offce (NSW) (1995) 36 NSWLR 1 at 11 (Kirby P).

Mendelson D, The Modern Australian Law of Mental Harm: Parochialism Triumphant in Legal Issues (2005) 13 JLM 164.

79 Civil Liability Act 2002 (NSW), s 30; Civil Liability Act 1936 (SA), s 53; Civil Liability Act 2003 (Tas), s 32; Wrongs Act 1958 (Vic), s 73. 80

For example, see the Domestic and Family Violence Act 2007 (NT), s 10, which includes in the denition of relative someone who, according to Aboriginal tradition or contemporary social practice is a relative of the person. Baker M, Families, Labour and Love. Family Diversity in a Changing World (Allen & Unwin, Sydney, 2001).

81

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relatives who would be considered distant relations in the context of the nuclear family.82 In other cultural groups, such as the Chinese, Vietnamese and Lebanese, extended family members commonly live together in one household. For example, in traditional Chinese families, it is common to have three generations living together.83 Another variation of this pattern exists among Filipino families, where extended family members live in different households but maintain extensive involvement in shared family life.84 Many members of these extended family groupings are excluded from the denition of close family member, reinforcing a nuclear family paradigm, an approach that could be considered discriminatory. Ultimately, the prescriptive denition will deny recovery to persons of diverse ethnic backgrounds who may suffer a mental injury as a result of injury to a (legislatively unrecognised) close family member. The fourth and nal factor in determining whether there is a duty of care in all jurisdictions is whether there was a pre-existing relationship between the plaintiff and the defendant. This factor appears justiable on the basis that it will likely point to the reasonableness of the defendant being able to foresee a mental injury to the plaintiff, as in the situation of Annetts itself where the promises by the employer defendant to look after the plaintiffs son provided evidence that the plaintiffs were in the reasonable contemplation of the defendant.

IS

MENTAL INJURY

LESS

SERIOUS THAN PHYSICAL INJURY?

The Ipp Panels third rationale for the retention of stricter rules for pure mental injury than for physical injuries is that, because resources are limited, it is more important to compensate people for physical harm than for pure mental harm.85 Physical injuries, acknowledged as a worldwide public health concern, are associated with signicant mortality and morbidity and cause devastating harms to individuals, families and communities.86 Physical injuries are expensive in terms of the direct medical and non-medical costs to individuals and to state health care systems. Such expenditure includes hospital costs (inpatient and emergency department), medical costs (general and specialist services) and rehabilitation costs (rehabilitation services, aids and equipment).87 Indirect costs are also signicant. Physical injuries, whether minor, moderate or severe, often result in a predictable mix of ongoing functional limitations, lifestyle disruptions, and psychological distress reactions.88 This can impact on the injured persons ability to engage in the employment market with resulting losses, personal and societal, in work productivity and income-earning power. The impact and costs of mental injuries are, however, also wide-reaching, long-lasting and extremely costly to society. Indeed, medical experts working in the eld consistently document the life-shattering impact of mental injury and maintain that, in many instances, it can be more debilitating than physical injuries.89 The long- and short-term personal effects of PTSD, eg, include ashbacks or nightmares, sleep disorders including difficulty falling or staying asleep and post-traumatic nightmares,90 severe distress, symptoms of dissociation, post-traumatic stress depression, anxiety,
82 83

Batrouney T and Soriano G, Parenting in the Torres Strait Islands (2001) 59 Family Matters Issue 48.

Mak A and Chan H (eds), Chinese Family Values in Australia in Families and Cultural Diversity in Australia (Allen & Unwin, Sydney, 1995).
84

Saggers S and Simms M, Diversity: Beyond the Nuclear Family in Poole M (ed), Family (Allen & Unwin, Sydney, 2004) p 66. See Ipp Report, n 4, p 1. Krug EG, Sharma GK and Lozano R, The Global Burden of Injuries (2000) 90(4) American Journal of Public Health 523.

85 86 87

Mathers C, Vos ET, Stevenson C and Begg S, The Burden of Disease and Injury in Australia (2001) 79 Bulletin of the World Health Organization 1076.
88

Lax M and Klein R, More Than Meets the Eye: Social, Economic, and Emotional Impacts of Work-related Injury and Illness (2008) 18(3) Journal of Environmental and Occupational Health Policy 343. Kessler R, Aguilar-Gaxiola S, Alonso J, Chatterji S, Lee S, Ormet J. Ustun T and Wong P, The Global Burden of Mental Disorders: An Update from the WHO World Mental Health Surveys (2009) 18(1) Epidemiology Psychiatr Soc 23 at 30. Spoormaker V and Montgomery P, Disturbed Sleep in Post-traumatic Stress Disorder: Secondary Symptom or Core Feature? (2008) 12 Sleep Medicine Reviews 169.

89

90

606

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anger, intense physical reactions (eg pounding heart, rapid breathing, nausea, muscle tension, sweating), to reminders of the event; loss of interest in activities and life in general, irritability or outbursts of anger, depression, suicidal thoughts and substance abuse.92 Post-traumatic stress disorder is also associated with poor physical health and a greater utilisation of health care services for physical health problems.93 The costs of mental injuries are high as, unlike many physical injuries, they often require long-term and ongoing professional consultation and medication. In fact, mental illness accounts for a large proportion of the disease burden in many countries. In Australia, expenditure on mental illness ranks third behind cancer and cardiovascular disease,94 with costs projected to increase to 12 billion by 2033.95 This estimate excludes other societal costs such as lost productivity, carer/family costs, welfare, housing and the courts96 which have been extensively researched in the United States with staggering ndings.97 Depression, eg, described by the World Health Organisation as an unseen burden, ranks fourth in terms of disease burden in Australia, and rst in terms of years of life lost due to disability.98 In fact, research has found that those who suffer depressive disorders experience disability and diminished physical and mental functioning similar to patients with chronic diseases such as arthritis and diabetes99 and a greater reduction in quality of life than more common medical disorders such as hypertension and cardiac disease.100 Those suffering from major depression make greater use of health services, are more likely to be living in areas of socio-economic disadvantage, and have a markedly diminished level of physical and mental functioning and quality of life.101 Low socio-economic status, particularly when assessed by indices of material standard of living, is consistently associated with a higher prevalence of depression in cross-sectional studies.102

91

91

Nilsson D, Gustafsson P and Svedin C, Self-reported Potentially Traumatic Life Events and Symptoms of Post-traumatic Stress and Dissociation (2010) 64 Nord J Psychiatry 19. Duckworth M and Iezzi T, Physical Injuries, Pain, and Psychological Trauma: Pathways to Disability (2010) 3 Psychol Inj and Law 241. ODonnell M, Creamer M, Elliott P and Atkin C, Health Costs Following Motor Vehicle Accidents: The Role of Posttraumatic Stress Disorder (2005) 18(5) Journal of Traumatic Stress 557 at 559.

92

93

94

Begg S, Vos T, Barker B, Stevenson C, Stanley L and Lopez A, The Burden of Disease and Injury in Australia in 2003 (Australian Institute of Health and Welfare, Canberra, 2007).
95

Goss J, Projection of Australian Health Care Expenditure by Disease, 2003 to 2033 (Australia Institute of Health and Welfare, Canberra, 2008) p 17.

96

Mihalopoulos C, The Economic Analysis of Prevention in Mental Health Programs (2011) 7 Annual Review of Clinical Psychology 169.
97

Greenberg P and Birnbaum H, The Economic Burden of Depression in the US: Societal and Patient Perspectives (2005) 6 Expert Opinion on Pharmacotherapy 369.

98

Mathers C, Vos T and Stevenson C, The Burden of Disease and Injury in Australia Summary Report (Australian Institute of Health and Welfare, Canberra, 1999); Hawthorne G, Cheok F, Goldney R and Fisher L, The Excess Cost of Depression in South Australia: A Population-based Study (2003) 37(3) Australian and New Zealand Journal of Psychiatry 1440.
99

Hays R, Wells K, Sherbourne C, Rogers W and Spritzer K, Functioning and Well-being Outcomes of Patients with Depression Compared with Chronic General Medical Illnesses (1995) 52(11) Archives of General Psychiatry 19.

100

Wells K, Stewart A, Hays R et al, The Functioning and Well-being of Depressed Patients: Results from the Medical Outcomes Study (1989) 262 JAMA 914 at 919.
101

Goldney R, Fisher L, Wilson D and Cheok F, Major Depression and Its Associated Morbidity and Quality of Life in a Random, Representative Australian Community Sample (2000) 34(6) Australian and New Zealand Journal of Psychiatry 1022 at 1028.
102

Lorant V, Croux C, Weich S, Delieg D, Mackenbach J and Ansseau M, Depression and Socio-economic Risk Factors: 7-Year Longitudinal Population Study (2007) 190(4) British Journal of Psychiatry 293; Draine J, Salzer M, Culhane D and Hadley T, Role of Social Disadvantage in Crime, Joblessness, and Homelessness Among Persons With Serious Mental Illness (2002) 53 Psychiatric Serv 565.

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The indirect costs of mental injury are also signicant, including unemployment and reduced employment prospects for sufferers.103 Mental injuries also have costs for employers, including high rates of sporadic absenteeism and disability-related work leave as well as low levels of on-the-job work performance.104 Employment is an important stepping-stone to recovery for those suffering from mental injuries as it is a normalising factor that provides daily structure and routine, meaningful goals, improves self-esteem and self-image, increases nances, alleviates poverty, provides opportunities to make friendships and obtain social support, enriches quality of life and decreases disability.105 However, people with a mental illness are susceptible to direct discrimination because of prejudicial attitudes from employers and workmates and indirect discrimination owing to historical patterns of disadvantage, structural disincentives against competitive employment and generalised policy neglect.106 The failure of the civil liability legislation to afford mental injuries the same recognition given to physical injuries is therefore costly, personally and nancially, to victims themselves and to society. Given that research suggests that early identication and effective treatment of mental injuries has a major preventative impact107 and that effective therapies do exist that reduce mental anguish, an effective compensatory framework could reduce the direct and indirect impacts and costs of mental injury. Indeed, research by World Mental Health indicates that untreated early onset mental disorders will typically lead to a wide range of physical disorders and other adverse life outcomes such as reduced educational attainment, marital instability and low occupational and nancial status.108 Employment-related research, eg, has found that the detection and early treatment of workers mental disorder is a signicant human capital investment opportunity for employers because it leads to higher job retention and more hours worked.109 Thus, by employers providing only partial compensation for direct losses and little recognition or compensation for the indirect effects of mental injuries, many sufferers will not receive treatment for their injuries.110

CONCLUSION
This article has considered the statutory reforms to mental injury in the tort of negligence which were introduced into six Australian jurisdictions in response to a perceived public indemnity crisis and a blow-out in negligence damages payouts. It has concluded that these reforms have reinforced and magnied historic distinctions between physical and mental harm despite increasing recognition in the medical literature of the interrelationship between physical and mental injury, the recognition of the professional ability of psychiatrists and psychologists to pinpoint and diagnose mental injury with accuracy, and extensive documentation of the far-reaching and devastating impact that psychiatric injury has on victims, families and the community. In particular, and signicantly, the limitations on
103

Crisp A, Gelder M, Rix S, Meltzer H and Rowlands O, Stigmatisation of People with Mental Illnesses (2000) 177 British Journal of Psychiatry 4; Jorm A, Jacomb P and Christensen H, Attitudes Towards People with a Mental Disorder: A Survey of the Australian Public and Health Professionals (1999) 33 Australian and New Zealand Journal of Psychiatry 77. Marcotte D and Wilcox-Gk V, Estimating the Employment and Earnings Costs of Mental Illness: Recent Developments in the United States (2001) 53(1) Social Science and Medicine 21; Holden L, Psychological Distress is Associated with a Range of High Priority Health Conditions Affecting Working Australians (2010) 34(3) Australian and New Zealand Journal of Public Health 304 at 304.
105 106 104

Corrigan P, How Stigma Interferes with Mental Health Care (2004) 59(7) American Psychologist 614.

Lehman A, Goldberg R, Dixon L, McNary S, Postrado L, Hackman A and McDonnell K, Improving Employment Outcomes for Persons with Severe Mental Illnesses (2002) 59 Arch Gen Psychiatry 165.
107

Allen N, Hetrick S, Simmons J and Hickie IB, Early Intervention for Depressive Disorders in Young People: The Opportunity and the (Lack of) Evidence (2007) 187 MJA 15.
108 109

Kessler et al, n 89 at 30.

Wang P, Simon G, Avorn J, Azocar F, Ludman E, McCulloch J, Petukhova M and Kessler R, Telephone Screening, Outreach and Care Management for Depressed Workers and Impact on Clinical and Work Productivity Outcomes: A Randomized Controlled Trial (2007) 298(12) JAMA 1401.
110

Chan A, Air T and McFarlane A, Posttraumatic Stress Disorder and Its Impact on the Economic and Health Costs of Motor Vehicle Accidents in South Australia (2003) 64(2) Journal of Clinical Psychiatry 175 at 180.

608

(2012) 19 JLM 593

Reinforcing historic distinctions between mental and physical injury

compensation for mental injuries introduced by the reforms will hinder the early treatment of mental injuries which evidence suggests is likely to lead to a raft of damaging and costly personal and societal consequences.

(2012) 19 JLM 593

609