Supreme Court of New South Wales

Part 3

Mental harm

27 - Definitions

In this Part:

“consequential mental harm” means mental harm that is a consequence of a personal injury of any other kind.

“mental harm” means impairment of a person’s mental condition.

“negligence” means failure to exercise reasonable care and skill.

“personal injury” includes:

(a) pre-natal injury, and

(b) impairment of a person’s physical or mental condition, and

(c) disease.

“pure mental harm” means mental harm other than consequential mental harm.


28 - Application of Part

(1) This Part (except section 29) applies to any claim for damages for mental harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

(2) Section 29 applies to a claim for damages in any civil proceedings.

(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.


29 - Personal injury arising from mental or nervous shock

In any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock.


30 - Limitation on recovery for pure mental harm arising from shock

(1) This section applies to the liability of a person (“the defendant”) for pure mental harm to a person (“the plaintiff”) arising wholly or partly from mental or nervous shock in connection with another person (“the victim”) being killed, injured or put in peril by the act or omission of the defendant.

(2) The plaintiff is not entitled to recover damages for pure mental harm unless:

(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or

(b) the plaintiff is a close member of the family of the victim.

(3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.

(4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.

(5) In this section:

“close member of the family” of a victim means:

(a) a parent of the victim or other person with parental responsibility for the victim, or

(b) the spouse or partner of the victim, or

(c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or

(d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.

“spouse or partner” means:

(a) the person to whom the victim is legally married (including the husband or wife of the victim), or

(b) a de facto partner, but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify.


Sdrolias v Power Distribution Services Pty Limited [2021] NSWSC 321

Ms Sdriolas was employed as a traffic controller on a site where subsurface electrical cables were being installed. Two employees of a subcontractor (‘Superior Civil’) of the first defendant were cutting

a hole in the wall of a conduit with a metal reciprocating saw when the blade struck a live cable, causing an electrical explosion. Ms Sdriolas was in the vicinity of the pit when the explosion occurred and witnessed the injured employees immediately after they sustained their injuries.

She alleged that the defendants owed her, as a person working in the vicinity of their activities, a duty to exercise reasonable care not to cause her mental harm, and that that duty was breached by failure to implement a system of work reasonably adapted to preventing the unauthorised use of a powered reciprocating saw to cut through conduit into live high-voltage cable in a way that would injure a worker and create a traumatising spectacle for persons nearby. In its defence Superior Civil invoked both s 32 and s 30 of the Civil Liability Act.

 

On s 30: Superior Civil invoked s 30 in relation to the vicarious liability that would attach to it for the negligence of the injured workers. For the purpose of s 30, the injured workers are “the victim” and Superior Civil “the defendant”. If the section applied, Ms Sdriolas would be unable to recover damages for pure mental harm on the basis that neither worker could prove any negligent breach of the duty of care owed to them by Superior Civil as their employer, thus engaging s 30(4). However, by force of s 30(1), the provision does not apply because the victims were not injured “by the act or omission of the defendant” but by their own acts carried out in disregard of Superior Civil’s instructions: [58]-[61].

 

Parkes Shire Council v South West Helicopters Pty Limited [2019] HCA 14; 367 ALR 1

Parkes Shire Council engaged South West

Helicopters Pty Limited (‘SWH’) to conduct a low- level aerial noxious weed survey. In early February 2006, a helicopter conducting that spraying crashed, killing all three passengers, including Ian Stephenson. The spouse and children of Mr Stephenson brought claims against the Council and SWH in respect of negligently inflicted psychiatric injury resulting from Mr Stephenson’s death. The Stephensons succeeded against the Council at first instance. The Council obtained contribution from SWH. SWH successfully appealed to the NSWCA. The Council was granted special leave to appeal to the High Court. In the High Court, the key question for present purposes was whether the terms of s 35 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) operated to exclude civil liability on any basis other than under the Act. That issue mattered because the Stephensons had commenced proceedings under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) out of time; if s 35 excluded other possible claims (like a claim for psychiatric injury under the CLA), then the Stephensons would have no claim. The High Court dismissed the appeal, holding that the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) operated to exclude civil liability on any other relevant basis.

 

On s 30: Gordon J noted that even if the CLA did not contain s 30(4), s 35 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) would have operated to preclude recovery for pure mental harm arising from psychiatric injury: [122].



31 - Pure mental harm—liability only for recognised psychiatric illness

There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.


32 - Mental harm—duty of care

(1) A person (“the defendant”) does not owe a duty of care to another person (“the plaintiff”) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

(a) whether or not the mental harm was suffered as the result of a sudden shock,

(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,

(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.


(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

Sdrolias v Power Distribution Services Pty Limited [2021] NSWSC 321

Ms Sdriolas was employed as a traffic controller on a site where subsurface electrical cables were being installed. Two employees of a subcontractor (‘Superior Civil’) of the first defendant were cutting a hole in the wall of a conduit with a metal reciprocating saw when the blade struck a live cable, causing an electrical explosion. Ms Sdriolas was in the vicinity of the pit when the explosion occurred and witnessed the injured employees immediately after they sustained their injuries.

She alleged that the defendants owed her, as a person working in the vicinity of their activities, a duty to exercise reasonable care not to cause her mental harm, and that that duty was breached by failure to implement a system of work reasonably adapted to preventing the unauthorised use of a powered reciprocating saw to cut through conduit into live high-voltage cable in a way that would injure a worker and create a traumatising spectacle for persons nearby. In its defence Superior Civil invoked both s 32 and s 30 of the Civil Liability Act.

 

On s 32: the relevant principles for the application of s 32 are set out by Gleeson JA in Optus Administration Pty Limited v Glenn Wright [2017] NSWCA 21 at [206]-[212]. Applying those principles, one of the “circumstances of the case”, for the purposes of s 32(1), than an electrical sub- contractor would appreciate is that if reasonable care were not taken in its work on the conduits, so that a high voltage live cable might be cut with a metal tool, the result might be a powerful electric

 

arc, which would generate heat explosively and likely cause serious burns to the workmen involved. Such a subcontractor would also appreciate that the sudden appearance of those injuries, to which the attention of a bystander would be attracted by the noise and by their distress, would have all the characteristics of “a sudden shock” (see s 32(2)(a)). Thus Superior Civil ought to have foreseen that a person working in proximity to it might witness workmen being injured or at least put in peril by such an electrical explosion: [39].

 

Post-traumatic stress disorder is a “recognised psychiatric illness” within the meaning of s 32(1) that, as a matter of common knowledge, may be induced in a person confronted, in the immediate aftermath of an accident, with the sight of severe injuries sustained by another. It is also widely known that persons of normal fortitude are liable to acquire such a disorder in those circumstances. Thus such an outcome was foreseeable to Superior Civil for the purposes of s 32(1) notwithstanding the absence of any relevant relationship between Ms Sdriolas and the injured workers for the purposes of pars (c) and (d) of s 32(2): [40]. This conclusion on foreseeability is supported by the decision in Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383: [41]. The negative

control in s 32 is therefore not engaged and Superior Civil owed a duty of care to Ms Sdriolas.

Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre [2020] NSWCA 354

Mr Capar was employed as a security guard at Lidcombe Power Centre. In March 2010 an intruder entered the premises by climbing through a gap above an external roller door and up the fire stairs.

 

In February 2010 an intruder had accessed the premises in the same way. Mr Capar, having seen the intruder outside the premises on CCTV and subsequently lost sight of him, left the control room to investigate. The intruder, when found, was carrying an axe and approached Mr Capar threatening to kill him. Mr Capar returned safely to the control room, but subsequently suffered psychiatric harm as a result of the incident. The primary judge dismissed Mr Capar’s claims against the owner of the premises, the company providing security services to the premises and his own employer on the basis that Mr Capar, by leaving the safety of the control room, had voluntarily assumed the risk in question.

 

On s 32: the enquiry demanded by s 32 is not whether the circumstances themselves are reasonably foreseeable, but whether, in the circumstances that have arisen, it was reasonably foreseeable that a person of normal fortitude might suffer psychiatric injury: [91]-[92]. It must be recalled that the test is whether a person of normal fortitude “might” suffer a psychiatric illness in the circumstances of the case; cross- examination as to whether a shock was “inevitable” thus effectively conceded that the test was satisfied: [96]. The question of whether the plaintiff is a person of normal fortitude is irrelevant to the s 32 inquiry: [97]. Though in principle the question as to what might be expected of a person of normal fortitude in certain circumstances could be the subject of expert evidence, such evidence is unlikely to be particularly helpful: [94]-[95].

Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21

Mr Wright suffered PTSD after an attempt by Mr

George to kill Mr Wright by throwing him off the roof of an Optus office building while both were attending a training course on those premises. Mr George and Mr Wright were not Optus employees. Mr Wright did not suffer compensable physical injury, but brought an action against Optus in negligence occasioning pure mental harm.

 

The issue on appeal was whether Optus was liable in negligence for Mr Wright’s psychological injury. This raised a question whether Optus or Optus’ staff owed Mr Wright a duty of care in respect of pure mental harm.

 

The Court held that s 32 requires a separate inquiry into the existence of a duty of care with respect to mental harm, such that the existence of a general duty of care is of limited relevance:

[35]-[39], [207]. In conducting this separate inquiry, it may be necessary to specify the critical event with a degree of precision: [54]. It is necessary to formulate the duty of care prospectively: [96], [255]. In this case, it was necessary to ask: was it reasonably foreseeable that one call-centre trainee might assault another in a manner which, although it caused no physical injury, might nevertheless be so serious as to lead to a psychiatric illness in a person of normal fortitude?: [62].

 

High Court cases considered:

Modbury Triangle Shopping Centre Pty Ltd v Anzil

(2000) 205 CLR 254; [2000] HCA 61

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22

 



33 - Liability for economic loss for consequential mental harm

A court cannot make an award of damages for economic loss for consequential mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

Last updated:

11 Nov 2024

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