Mount Isa Mines Ltd v Pusey
125 CLR 383(Judgment by: BARWICK CJ)
Between: MOUNT ISA MINES LTD
And: PUSEY
Judges:
Barwick CJMcTiernan J
Menzies J
Windeyer J
Walsh J
Subject References:
Negligence
Duty of care
Damage
Nervous shock
Remoteness of damage
Judgment date: 23 December 1970
SYDNEY
Judgment by:
BARWICK CJ
The appellant employed the respondent as an engineer in its powerhouse at Mount Isa. It also employed there two electricians, by name Kuskopf and Docherty. On a day when the respondent was working in the powerhouse the two electricians carried out a test on a switchboard in the powerhouse using for that purpose a multi-meter. Because of their mishandling of this instrument a short circuit of high tension current was caused with the result that the two electricians were severely burned by an intense electric arc. The short circuit caused a loud noise which was heard by the respondent as an explosion where he was working on the floor below that where the switchboard was located. The respondent who was carrying out the duties of an assistant charge engineer hastened to the scene and found Kuskopf, with whom he was unacquainted, naked and, as he put it, "just burnt up". He went to his aid supporting and assisting him down through the building to ground level where he was placed in an ambulance. The respondent did not see Docherty but later heard that Docherty had died the day following the incident. Kuskopf lived about nine days and thereafter the respondent learnt of his death. The respondent went about his work in the appellant's employ for some four weeks or so succeeding the incident without any apparent consequence to himself or to his health. But after that time he developed symptoms which indicated that he was suffering from a serious mental disturbance. According to the medical evidence produced at the trial he developed a profound psychiatric disability broadly comprehended in the term "schizophrenia". This according to that evidence is a "severe type of mental disturbance including disturbance of thought, disturbance of mood and disturbance of behaviour and personality".
In an action in the Supreme Court of Queensland against the appellant for breach of a duty of care owed by the appellant to the respondent, the respondent was awarded damages for his mental injuries. An appeal against that judgment to the Full Court of the Supreme Court of Queensland was unsuccessful. [F1] The appellant on appeal to this Court now seeks to reverse the judgment for the respondent.
In carefully expressed reasons for judgment the learned trial judge found that Kuskopf and Docherty were careless in the manner in which they used the multi-meter and that the appellant was in breach of its duty as an employer towards its employees in failing to instruct Kuskopf and Docherty in the proper way to use the multi-meter. He found that the respondent suffered a psychological disturbance manifesting itself in a form of schizophrenia as a direct result of seeing and assisting Kuskopf. He was of opinion that this disturbance came from a form of "shock or nervous shock". He found that a reasonable employer ought in the circumstances to have foreseen that a short circuit in high tension current caused by the misuse of the multi-meter would create a considerable electric arc and that the employees using that instrument might be so seriously injured that employees nearby including those who might go to their rescue might in so doing themselves sustain injury. He thought that injuries which the employer ought to have foreseen could result from the employees' misuse of the multi-meter could include what he described as "gruesome burning injuries". The trial judge further found that a reasonable employer in the circumstances ought to have foreseen that a fellow employee seeing another employee suffering from such gruesome burning injuries might well suffer some psychological reaction of more than a transient kind. He did not find that the specific psychological reaction which as he thought was the direct result of the respondent having seen Kuskopf's injuries was foreseeable by the appellant. However, he took the view that to establish liability it was enough that the employer ought to have foreseen the possibility of an employee suffering an injury within the broad category of injury of which the respondent's condition was a particular manifestation.
The primary challenge of the appellant to the judgment of the primary judge is that he ought to have found that the precise mental condition from which the respondent suffers was not foreseeable as a possible consequence of the appellant's lack of care for the safety of its employees. But the appellant also submitted that it ought not to have been held that any kind of psychological reaction or disturbance was reasonably foreseeable as such a possibility.
The third submission was that it ought not to have been found that the respondent's mental condition manifesting itself some weeks after the incident was causally related to the effect on the respondent of his view of, or contact with, Kuskopf. It was said that whatever that effect was, it was but transient and itself not compensable. The ultimate disturbance of the respondent's mental condition on this submission was due to his own subsequent, and as it were, autogenous brooding on the "incident". There was no physical or ostensible injury, so it was said, sustained at the time of the incident and none subsequently caused by it.
These are the only matters raised for our consideration in this appeal. The appellant relied on expressions in the advice of the Privy Council in Overseas Tankship (U.K.) Ltd v Morts Dock & Engineering Co Ltd (The "Wagon Mound" (No. 1)) [F2] in submitting that unless the injuries to the respondent were foreseeable no liability attached to the appellant either for its want of care in failing to instruct the electricians in the use of the multi-meter or for any want of care by the electricians in their use of the multi-meter. It was not contended nor, in my opinion, could it be contended, that the respondent's mental condition if it in fact resulted from the "shock"-if that be a sufficiently precise description-of seeing his fellow employee "alight" was not an injury for which damages could be given. Nor was it contended, as I understand the appellant's argument, that if the respondent in supporting Kuskopf had himself been physically burned, he could not have recovered from the appellant damages for such an injury. In any case it might be observed that the respondent came to the scene in the course of his employment and that he should do so in the circumstances might well be thought to be within the area of foreseeability to be attributed to the appellant, his employer.
I therefore find no need to discuss the development of the law with respect to the award of damages for what is called "nervous shock": nor do I find any need to discuss the implication of the decision in The "Wagon Mound" (No. 1), [F3] nor the difficulties which an attempt to solve all questions of duty and damages by the single test of foreseeability will raise.
Accepting for the purposes of this case that liability is all one question depending solely on foreseeability, I turn to consider the very limited submissions made in this case. I have set out the relevant facts and circumstances. Basically they are that an owner-operator of a powerhouse uses conductors carrying electricity at a high voltage: it employs persons whose duties include the taking of readings by means of a multi-meter. I cannot doubt that it could properly be held that as an employer such an owner-operator could and ought to foresee that misuse of such an instrument in connection with a high tension current of electricity might, through an intense electric arc, cause an employee in proximity to the conductors carrying such current to be severely burnt. I think it could be held that such an employer could and ought to foresee that the sight of a burning or recently burnt human might mentally disturb an employee whose proximity to the injured fellow employee ought to be foreseen. So much I think is within the ordinary experience of people who work with electric current, particularly electric current at a high voltage. No special medical or psychiatric knowledge is required in my opinion to foresee the possibility of injury by way of mental disturbance in such circumstances.
But the appellant points to evidence of medical practitioners in the case which says that the particular injury of the respondent was a rare consequence or reaction to follow emotional excitement or stress. Indeed an experienced psychiatrist had seen only one other like case to that of the respondent in his eighteen years of practice as a specialist. However, that practitioner insisted that, though unusual, a reaction such as that of the respondent to such an experience as he had had, was not "unexpected".
But the rarity of such an injury in the circumstances does not in my opinion deny the foreseeability of an injury of the class of which it forms one. That it is sufficient that the class of injury as distinct from the particular injury ought to be foreseen as a possible consequence of particular conduct in order to establish liability for damages for the particular injury is well established. (See e.g., Chapman v Hearse [F4] .)
Therefore, in my opinion, there is no reason to disturb the primary judge's finding that a mental disturbance of some kind was, in the circumstances, foreseeable as a possible consequence of a want of care in the handling of the electrical apparatus: or his conclusion that such a finding was sufficient to render the appellant liable for the particular mental disturbance suffered by the respondent.
There remains the submission that that mental disturbance ought not to be held to be causally related to the incident. The primary judge clearly found that, though delayed in its manifestation, the schizophrenic condition of the respondent was directly related to the effect the view of, and contact with, the burning man had had upon him. It seems to me that the appellant's submission amounts in reality to no more than saying that the particular make-up of the respondent contributed to the resulting mental disturbance and that such an experience as he had had would not have caused a person of a different disposition to have become similarly disturbed. But that is clearly no answer to the respondent's claim for damages. In my opinion, the primary judge's conclusion as to the causal relationship between the incident and the respondent's schizophrenia ought not to be disturb.
For these reasons, in my opinion the appeal should be dismissed.