Mount Isa Mines Ltd v Pusey
125 CLR 383(Judgment by: WINDEYER J)
Between: MOUNT ISA MINES LTD
And: PUSEY
Judges:
Barwick CJ
McTiernan J
Menzies J
Windeyer JWalsh J
Subject References:
Negligence
Duty of care
Damage
Nervous shock
Remoteness of damage
Judgment date: 23 December 1970
SYDNEY
Judgment by:
WINDEYER J
This case is the result of a "nervous shock" which the respondent, whom I shall call the plaintiff, suffered in April 1966. He was then employed by the appellant company as an engineer in the powerhouse at its Mount Isa mine. On the day in question two electricians, servants of the company, were working in the powerhouse on the floor above where the plaintiff was working. In the course of their duty in testing the electrical circuit and installations, they negligently misplaced on a switchboard the leads of an instrument they were using. The result was a short circuit of high-powered current. This caused two loud reports, described as explosions, and an electric arc of intense heat. The two electricians were horribly burnt. One of them died next day: the other, a man named Kuskopf, eight days later. The plaintiff when he heard the noise went at once to the upper floor to see what had happened there. In the smoke and confusion he saw Kuskopf. His clothes were burnt off: his skin was peeling: obviously he was grievously hurt. The plaintiff supported him and helped in getting him to the ground floor and to an ambulance. The plaintiff was distressed. After some days the shock of the event with the added knowledge that both men had died began to tell. He became depressed and suffered a severe schizophrenic reaction, with acute depression and an acute anxiety state. He became unable to do the skilled work on which he had been employed and was put by the appellant to routine tasks. He was away from work for considerable periods and under psychiatric treatment.
There have been, in recent times, so many cases about nervous shock, and they have led to so much academic commentary, critical, learned and discerning, but not all harmonious, that the topic has now a special place in books on the law of torts, indeed in some it is virtually a rubric. But the term itself can be misleading, unless its meaning for law be defined and confined.
Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover damages for a "shock", however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening. It is, however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the result of a tortious act, damages may be had. It is in that consequential sense that the term "nervous shock" has come into the law. In the last reported case on this topic in England-Hinz v Berry [F8] - Lord Denning M.R. said: [F9] "Damages are ... recoverable for nervous shock, or, to put it in medical terms, for any recognizable psychiatric illness caused by the breach of duty by the defendant." His Lordship was speaking of the breach of a duty of care founding an action for negligence. In Bunyan v Jordan, [F10] Dixon J. (as he then was) said, of the facts of that case:
"On the medical evidence, the jury might find that the defendant's actions threw the plaintiff into a sufficiently emotional condition to lead to a neurasthenic breakdown amounting to an illness.
I have no doubt that such an illness without more is a form of harm or damage sufficient for the purpose of any action on the case in which damage is the gist of the action, that is, supposing that the other ingredients of the cause of action are present. But I do think that upon facts like those I have stated it is impossible to formulate any cause of action in which the reasonable likelihood of harm of some such nature resulting from the act done does not form an essential element."
This passage is noteworthy: first, as an anticipation of the present-day rule that a cause of action for nervous shock depends on foreseeability of harm "of some such nature" as that which actually occurred. Secondly, it emphasizes that nervous shock cases are not a new tort: they turn simply on the circumstances in which damages are recoverable for a particular kind of harm caused by a tort. Law, marching with medicine but in the rear and limping a little, has today come a long way since the decision in Victorian Railways Commissioners v Coultas, [F11] which in recent times has been regularly by-passed by courts. An illness of the mind set off by shock is not the less an injury because it is functional, not organic, and its progress is psychogenic. I need say no more on that aspect. I merely venture to refer to what, in a different connection, I wrote in Federal Broom Co Pty Ltd v Semlitch, [F12] about mental ailments. The plaintiff has suffered harm of a kind that can sound in damages in some cases. Is this case one? That depends on whether the appellant was in breach of a duty to the plaintiff of care, extending to care lest he should suffer a nervous shock.
In the latest (8th, 1967) edition of Winfield on Tort the learned authors (Mr. J. A. Jolowicz and Dr. T. Ellis Lewis) say (at p. 125) of nervous shock:
"It is obvious then, that the authorities are in a state of confusion, and the confusion is only slightly reduced by the preponderance of modern opinion in Bourhill v Young [F13] and King v Phillips [F14] that the problem in cases of nervous shock is one of duty and not of remoteness. Duty, it is agreed, depends upon foreseeability, but foreseeability, a vague concept at the best of times, is of quite exceptional vagueness when nervous shock is in issue."
I put alongside that a reference to Professor Fleming's remarks on nervous shock in his Law of Torts, 3rd ed. (1965), pp. 154-161, and quote one sentence:
"Evidently, the foresight test, whatever lip-service be paid to it, is incapable of providing either an adequate explanation of past decisions or a basis of reasonable prediction for the future."
In the latest edition of Salmond on Torts by Professor Heuston (14th ed. (1965), p. 289), after a reference to the facts and decision in Bourhill v Young, [F15] it is said:
"But this decision is no more than an application of the principle of reasonable foresight to the facts of the particular case. The position of the plaintiff is a relevant (but not decisive) factor in determining whether the defendant ought reasonably to have foreseen the risk of emotional distress.
The final result is not unsatisfactory: yet the mass of confusing dicta which the cases contain is in truth due to a failure to appreciate the fundamental fact that the question cannot be answered solely by logic and that an issue of policy is involved for which the concept of reasonable foreseeability is by itself incapable of providing a solution."
I agree, but with a caveat to myself that it is not for an individual judge to determine the policy of the law according to his own view of what social interests dictate. The field is one in which the common law is still in course of development. Courts must therefore act in company and not alone. Analogies in other courts, and persuasive precedents as well as authoritative pronouncements, must be regarded. But I have not thought it necessary to gather together all the decided cases about nervous shock, or to try to reconcile all the dicta , or to pick and choose among all the commentaries. I am absolved from any obligation to do that for two reasons. One is that, although the argument for the appellant ranged widely and some aspects of it demand consideration and comment, the critical issue in the present case can, I think, be ultimately narrowed. The other is that the careful, learned and thoughtful judgments of the learned trial judge, Skerman J., and in the Full Court make it unnecessary for me to traverse all the ground that they cover, or to discuss all the cases there cited. I would, however, particularly acknowledge assistance I got from the comprehensive survey by Burbury C.J. in Storm v Geeves. [F16]
Since the judgment of the Privy Council in The "Wagon Mound" (No. 1), [F17] reasonable foreseeability of consequences has become the foundation on which the whole law of negligence is raised. It is implicit in Baron Alderson's time-honoured statement in Blyth v Birmingham Waterworks Co: [F18]
"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."
It is a risk of harm to the plaintiff, or to anyone of a class of persons of which he is one, that creates a duty of care and makes him a neighbour in Lord Atkin's sense. So much was generally accepted before the decision in The "Wagon Mound" (No. 1). [F19] Foreseeability of harm imposed a duty to take reasonable care to avoid harm: it was thus a criterion of liability for negligence. But the extent of the harm for which damages might be recovered for breach of that duty of care was not then limited by harm that was foreseen or foreseeable. Lord Sumner had put the distinction succinctly when he said:
"What a defendant ought to have anticipated as a reasonable man is material when the question is, whether or not he was guilty of negligence, that is of want of due care according to the circumstances. This, however, goes to culpability, not to compensation":
Weld-Blundell v Stephens. [F20] But Lord Simonds, delivering the judgment of the Privy Council in The "Wagon Mound", said: [F21]
"Their Lordships are constrained to say that this dictum (for such it was) perpetuated an error which has introduced much confusion into the law":
and In re Polemis and Furness, Withy & Co Ltd [F22] seen as the pinnacle of confusion was overruled by their Lordships. So that now we have the blessed, and sometimes overworked, word "foreseeability" as a single test for both the existence of liability in negligence and the extent of recoverable damage.
Foreseeability here predicates the foresight of a reasonable man. The reasonable man is not here anyone on the Clapham omnibus. He is a man who notionally stood in the shoes of the defendant and had such knowledge, and capacity for care and foresight, as that defendant actually had and in addition such as a reasonable man in that position is expected to have. He is, in the words of Lord Wright in Bourhill v Young, [F23] "a reasonable hypothetical observer". He is not a seer who can foretell future occurrences that are quite unlikely according to the natural and ordinary couse of events. Happenings that were fortuitous, in the sense that no reasonable man would have thought of them as within the range of possible consequences, cannot be said to have been reasonably foreseeable. And knowledge after the event, when it is easy to be wise, cannot shew that the event was foreseeable. Fullagar J. spoke of this in Rae v Broken Hill Pty Co Ltd: [F24]
"The fact of the happening of the accident is, of course, itself a relevant consideration, but, in considering whether it ought to have been foreseen, it is wrong to take as the standard of comparison a person of `infinite-resource-and-sagacity'."
What I have said may seem trite to persons learned in the law of torts today. But I have said it because counsel for the appellant pressed us with passages in judgments about "foreseeable risks". I do not think that these carried him far, but they do raise some linguistic difficulties. The sense that the word "foreseeable" has acquired for lawyers may cause misgivings for philologists. Dixon J. in the passage I have quoted from Bunyan v Jordan, [F25] spoke of "reasonable likelihood". He preferred that expression. In Chapman v Hearse, [F26] he is reported as intervening in the argument to say so. However, the unanimous judgment of the Court in that case contained the following statement: [F27]
"Whether characterization after the event of its consequences as `reasonable and probable' precisely marks the full range of consequences which, before the event, were `reasonably foreseeable' may be, and no doubt will continue to be, the subject of much debate. But one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant's carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence."
The word "risk", adjectively qualified as "real", "remote", "serious" or "slight", can also cause difficulties. Whether at some time in the past the prospect of the happening of an event which in fact happened was such that it created an obligation to take precautions against it is called a question of fact. It is really a value judgment upon ascertained facts. A man is culpably negligent if he failed to take measures, reasonably available, to obviate a risk "which would occur to the mind of a reasonable man in the position of the" defendant "and which he would not brush aside as far-fetched". That is how the Privy Council has expressed the matter: The "Wagon Mound" (No. 2). [F28] It simply states how the mind of Baron Alderson's reasonable and prudent man would work. The decision in Bolton v Stone, [F29] was prominent in the argument we heard about risk-created liabilities. That was to be expected. But that case must not be allowed to get out of its proper place in the law. It is enough to quote here two passages which shew that-one from the judgment of Lord Reid in the House of Lords in Carmarthenshire County Council v Lewis, [F30] the other from the judgment of the Privy Council in The "Wagon Mound" (No. 2). [F31] Lord Reid said:
"In my view, Bolton v Stone [F32] establishes that if an event is foreseeable the antithesis of its being reasonably probable is that the possibility of its happening involves a risk so small that a reasonable man would feel justified in disregarding it."
The Privy Council said:
"In their Lordships' judgment Bolton v Stone [F33] did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man."
The contrast which in their judgment their Lordships spelt out between a mere possibility, a risk which a reasonable man might brush aside as far-fetched, and on the other hand a "real risk" but one that nevertheless might be "properly described as remote" may seem elusive and slippery if meticulous attention be fixed on words. The word "remote" has long had a place in the vocabulary of our law. It has commonly been used in relation to cause and consequence: a remote cause has been distinguished from the proximate cause: a consequence may be too remote to sound in damages. Sometimes too the phrase "remote risk" has meant an event which can be seen as a possibility, but one so unlikely to occur, or of such slight gravity of consequence if it should occur, that a prudent man might justifiably disregard it. This idea can be expressed by various words, as for example in the earlier cases quoted by this Court in Green v Perry. [F34] We must always beware lest words used in one case become tyrants over the facts of another case.
Skerman J., the trial judge, found that the accident in the powerhouse was caused by negligences for which the defendant company, the present appellant, was responsible. By agreement between the parties he took into consideration in the present case evidence given in another action which had been heard by him at about the same time. In it the widow of one of the deceased men, suing on behalf of herself and her children, had claimed damages from the company for her husband's death. His Honour reserved his decision in that case, as in this. When he gave judgment in this case he incorporated his findings in that case so far as relevant. They were that both the deceased men were negligent in the way they had gone about testing the electric current; and that the company was negligent in failing to instruct them as to certain precautions which should have been taken before they used the multi-meter with which they were equipped; and that but for this breach by their employer of its duty to them the accident probably would not have occurred. These findings, which are not controverted, thus cast responsibility for the accident upon the appellant, vicariously as master for the negligence of its servants, and also primarily for a breach of its duty as employer to take reasonable care for the safety of its workmen. That duty, as formulated by this Court, "with some regard for precision" Dixon C.J. said, includes "instructing him" [the employee] "in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury": see Commissioner for Railways (N.S.W.) v O'Brien. [F35]
The dual basis on which the appellant was held by the trial judge to have been negligent is of some importance. It makes it unnecessary to determine whether, in a case based solely on an allegation of vicarious liability, the hypothetical reasonable observer, who is notionally asked whether he would have foreseen the occurrence, is to be regarded as standing in the shoes of the master or of the servant. That could involve the two debated theories of vicarious liability. Is the master liable because the law attributes to him the servant's acts and omissions as his? Or is he liable, truly vicariously, because liability for his servant's tort is imputed to him? This question was alluded to in the course of the argument. If it were necessary to determine it, I would for myself say, as I have said before this, that, however it is to be answered, I do not think we can overlook recent statements in the House of Lords; see Parker v The Commonwealth. [F36] However, I can put the topic aside because of his Honour's finding that a breach by the appellant of its own duty of care was a cause of the accident.
The question in the case is not was the happening of the accident foreseeable. That was involved in and is foreclosed by his Honour's finding of negligence, which was clearly supported by the evidence. The question is was it reasonably foreseeable that an accident of that kind, if it occurred, might have consequences for somebody of the kind that it had for the plaintiff. Whatever conclusion might have been reached when the doctrine of In re Polemis and Furness, Withy & Co Ltd, [F37] held sway, a different inquiry is now demanded of us as the result of the decision of the Privy Council in 1961. That people in the powerhouse would go promptly to the scene of an accident there was obviously to be expected. If on reaching the upper floor the plaintiff had come in contact with some hot object or an exposed electric cable and been physically harmed by that or by any other abnormal condition created by the detonation, he would have had an indisputable claim to damages. But that is not what happened: and the suggestion that because the plaintiff could have had damages if he had suffered a different kind of harm he can now have damages for the harm he actually suffered calls to mind the "imaginary necktie" and Professor Goodhart's vigorous comments.
In King v Phillips, [F38] Denning L.J., as his Lordship then was, stated what seems to me to be a besetting problem in cases of nervous shock when he said:
"What is the reasoning which admits a cause of action for negligence if the injured person is actually struck, but declines it if he only suffers from shock? I cannot see why the duty of a driver should differ according to the nature of the injury... If he drives negligently with the result that a bystander is injured, then his breach of duty is the same, no matter whether the injury is a wound or is emotional shock. Only the damage is different."
However, his Lordship, constrained by the decision of the House of Lords in 1942, said, [F39] "... there can be no doubt since Bourhill v Young [F40] that the test of liability for shock is foreseeability of injury by shock". This sentence was indorsed by the Privy Council in The "Wagon Mound" (No. 1), [F41] as a "statement of the law". "But", his Lordship had added, [F42] "this test is by no means easy to apply". Foreseeability does not mean foresight of the particular course of events causing the harm. Nor does it suppose foresight of the particular harm which occurred, but only of some harm of a like kind. That is well established by many cases, including Chapman v Hearse, [F43] and Hughes v Lord Advocate. [F44] This comfortable latitudinarian doctrine has, however, the obvious difficulty that it leaves the criterion for classification of kinds or types of harm undefined and at large. The logical problem thus engendered has been noticed by commentators, including Professor Jackson in his learned and critical article "A Kind of Damage" in The Australian Law Journal, vol. 39, pp. 3-16. Lord Wright in Bourhill v Young [F45] said:
"The lawyer likes to draw fixed and definite lines and is apt to ask where the thing is to stop. I should reply it should stop where in the particular case the good sense of the jury or of the judge decides."
That perhaps does not reckon with courts of appeal, and varying judicial opinions of where in good sense the proper stopping-place is.
In what way does one test whether a particular harm is of the genus that was foreseeable? We have at least one "fixed and definite line". Liability for nervous shock depends on foreseeability of nervous shock. That, not some other form of harm, must have been a foreseeable result of the conduct complained of. The particular pathological condition which the shock produced need not have been foreseeable. It is enough that it is a "recognizable psychiatric illness". Whether particular consequences of the deranged mentality sound in damages is a different question: see for example Antonatos v Dunlop, Allsopp and Transport and General Insurance Co Ltd. [F46] In the present appeal no question of the latter kind arises: and whether the plaintiff's mental disablement is best described in medical parlance as schizophrenia or by some other term does not matter. One of the psychiatrists who gave evidence did not like that term; but in his report he said he could not find "a more suitable diagnostic label". The plaintiff unquestionably developed a profound psychiatric disability however it be labelled. Perhaps it was latent and aroused by the experience. But, however that may be, the learned trial judge could find-and in my view he quite obviously rightly found-that this condition was a consequence of emotional shock on seeing and aiding the grievously hurt man. The medical witnesses agree that such a chronic pathological condition is a rare consequence of such a shock. But it is not unknown: and reasonable foreseeability is not measured by statistical probability. Moreover, as I have said, the question is not whether shock would be likely to produce this particular illness, but whether there was a real risk that a foreseeable accident such as occurred would cause a man in the powerhouse to suffer a nervous shock having lasting mental consequences.
In Hinz Berry, [F47] Lord Denning M.R. this year said:
"The law at one time said that there could not be damages for nervous shock; but for these last twenty-five years, it has been settled that damages can be given for nervous shock caused by the sight of an accident, at any rate to a close relative."
In the present case the plaintiff was not a relative or friend of the man who was burnt. In fact he did not know him, except perhaps as a fellow in the powerhouse. Does that matter? I turn to that question.
Courts have come-slowly, cautious step by cautious step-to give damages for mental disorders resulting from a man's seeing another person hurt, without himself having suffered physical injury or been in any peril of physical harm. A mother, or other near relative, who actually sees a child or other loved one hurt or killed or in imminent danger of being hurt or killed may suffer in mind, and sometimes indirectly in body, as the result of the shock. That this may happen is within the range of reasonable foresight. Such a person is therefore now taken to be a neighbour in Lord Atkin's sense, a person to whom a duty of care extends. But when, if at all, there is a duty of care for any other persons who may suffer shock from the spectacle of an accident, must, having regard to decided cases, be regarded as still for us an open question. We must now decide it.
The decision of Donovan J., as he then was, in Dooley v Cammell Laird & Co Ltd [F48] and of Waller J. in Chadwick v British Railways Board [F49] were based on the view that it is not only the relatives of a person hurt or endangered who can have damages for nervous shock caused by an accident. In my opinion we should follow these leads. There seems to be no sound ground of policy, and there certainly is no sound reason in logic, for putting some persons who suffer mental damage from seeing or hearing the happening of an accident in a different category from others who suffer similar damage in the same way from the same occurrence. The supposed rule that only relatives can be heard to complain is apparently a transposition of what was originally a humane and ameliorating exception to the general denial that damages could be had for nervous shock. Close relatives were put in an exceptional class. This allowed compassion and human sympathy to override the older doctrine, draconic and arbitrary, which recognized only bodily ills as compensable by damages and made a rigid difference between ills of the mind and hurts to the body. What began as an exception in favour of relatives to a doctrine now largely abandoned has now been seen as a restriction, seemingly illogical, of the class of persons who can today have damages for mental ills caused by careless conduct. Whatever the basis of the special position which it has been supposed should be given to near relatives, one thing can be said of it. That is that its application was in cases where the duty of care arose simply out of the duty to a "neighbour" in the legal sense. Relatives of an injured person might be neighbours in that sense, and in time rescuers joined them. But curious strangers, or mere bystanders, like the pregnant fishwife, were not "neighbours". They were not, using Lord Atkin's words, persons "so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected". But in the present case, the duty of care is not based simply on duty to a neighbour. It includes that but arises also independently from the legal relationship between the plaintiff and the defendant. It is the duty of care which a master has for the safety of his servant. Foreseeable harm caused by a master to the mind of his servant is just as much a breach of his duty of care for him as harm to his body would be. That, I think, is this case. But I do not wish to be taken as saying that where a duty of care springs only from foreseeability of harm to a "neighbour", and not out of a relationship of status or of contract such as master and servant, a different result would follow. It is apparent, from many cases that have come before the courts, that persons other than relatives of persons hurt may genuinely suffer nervous shock, as the present plaintiff did, on witnessing another's suffering or danger in an unexpected accident. That is a foreseeable possibility, and not a fantastic or negligible one. The Cartesian distinction between mind and matter for a long time had an obdurate influence on men's thinking. The interrelation of mind and body was little understood and often unacknowledged. But this position has given way in medicine and should, I think, give way in law.
But it is said that a person who in such circumstances suffers shock has no action for negligence unless he was emotionally and mentally a "normal" person, or, if he was a person of unusual susceptibility to shock that that was known, or ought to have been known, to the defendant. This proposition originates from remarks by Lord Wright in Bourhill v Young. [F50] There are decisions and dicta which follow and adopt it. I venture to question its validity for reasons I shall state. But first it is enough to say that, assuming it be correct to the full extent stated, it does not affect the present case. The plaintiff here was not before the accident obviously prone to nervous shock or to any psychological derangement. He had worked satisfactorily for the appellant for fifteen years. The trial judge, directing his attention to this aspect, found as a fact that there was "nothing in his personal or family or medical or occupational history" before the accident which would disqualify him as a plaintiff. I must add that I am not to be taken as assenting to the proposition that nervous shock caused to a man who is prone to such shock is not compensable when a similar occurrence harming a "normal" man would be. That, I think, should remain for us an open question. It does not arise in this case. I therefore say only a few words to indicate my misgivings.
To begin with, the line of distinction postulated is not in any particular case easily drawn. The idea of a man of normal emotional fibre, as distinct from a man sensitive, susceptible and more easily disturbed emotionally and mentally, is I think imprecise and scientifically inexact. Waller J. referred to this in Chadwick v British Railways Board. [F51] [The case is also reported (sub nom. Chadwick v British Transport Commission) in All England Reports; [F52] but the relevant sentence is there not the same: one word seems to be mistaken.] His Lordship said:
"The community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress to be regarded as extraordinary. There is an infinite variety of creatures, all with varying susceptibilities."
Next, the supposed rule does not, at first sight, stand well with the so-called "egg-shell skull" rule in relation to physical harm. That, Lord Parker C.J. has emphatically said, is still lively doctrine: Smith v Leech Brain & Co Ltd. [F53] I have no doubt that we should agree and that it is still for us the law that a tortfeasor takes his victim as he finds him. The proposition that a man susceptible to nervous shock is not entitled to damages is said to be reconcilable with that, because it is said that there is no duty of care for unknown abnormal persons who suffer harm because of their abnormality: only if a defendant knew or ought to have known of the existence of the plaintiff's infirmity had he a duty to avoid harm to him which a normal man would not suffer; only then would he be a tortfeasor and the man with an egg-shell mentality the victim of a tort. I appreciate that. Nevertheless I do not find the proposition easy. A mother who suffers a shock because she sees her child run over by a negligently-driven motor car is entitled to damages, apparently because mothers are likely to be near their children and prone to suffer shock if they see them hurt: yet a stranger who suffers shock because be sees the same happening is not entitled to damages unless he was a person not prone to shock, or it is suggested, with what logic is not apparent, if he was present as a rescuer. However, I need say no more about the position of persons prone to suffer shock, for the present plaintiff was not such a person. I wish only to guard myself for the future by saying that, as at present advised, I am not convinced that a defendant in cases of this sort can escape liability simply by shewing that, unknown to him, a person who suffered harm was easily harmed.
It is worthwhile noticing here that the plaintiff in Dooley v Cammell Laird & Co Ltd, [F54] recovered damages for nervous shock, caused by his seeing and being concerned in an accident, although he was not a relative of anyone involved, and no one was in fact hurt by the occurrence, and furthermore that he had before the accident suffered from neurasthenia which was made worse and accelerated in its course by the accident. I have not seen any suggestion that that case was not correctly decided. What I have said relates only to cases such as the present, industrial accidents-or to road accidents, resulting from negligence. I do not doubt that in some other situations the policy of the law prevents a man being liable for nervous shock suffered by susceptible persons. That is because men are not expected to go about their lawful occasions in such a way that they will not disturb the peace of mind of persons easily upset, unless in particular cases they were aware, or should have been aware, of the frailty and susceptibility of a "neighbour".
The ways in which the law of liability for nervous shock has been developed by courts in England and here, and extended to new situations, have been empirical, with results and limitations that appear as pragmatical rather than as logical applications of principle. That does not mean that I think that cases are to be decided by a matching in detail of the facts of one case against those of another. But it does mean that in this field it is peculiarly true that circumstances alter cases. In the United States too similar questions have arisen. The answers there have varied in different courts and at different times; and the topic has produced much academic commentary. This is well brought out by the numerous references collected in a learned contribution to a recent number of the Fordham Law Review (May 1970), vol. 38, pp. 824-830. I need not pursue the American doctrines here.
I repeat that in this case we are concerned with only one kind of occurrence causing nervous shock-a plaintiff employee in a factory seeing at the scene of accident there disastrous and pitiful consequences for another man. I need express no opinion and wish to guard against it being thought that I express any opinion on what would be the result if the facts were significantly different. In particular I do not question decisions that nervous shock resulting simply from hearing distressing news does not sound in damages in the same way as does nervous shock from witnessing distressing events. If the sole cause of shock be what is told or read of some happening then I think it is correctly said that, unless there be an intention to cause a nervous shock, no action lies against either the bearer of the bad tidings or the person who caused the event of which they tell. There is no duty in law to break bad news gently or to do nothing which creates bad news. That, however, seems to me remote from this case, and not to avail the appellant. No doubt the plaintiff's learning that the man who had been burnt had died added to his distress of mind: but it was not the sole or prime cause of it: cf. Andrews v Williams. [F55]
The judgments given in this Court in Scala v Mammolitti [F56] were referred to in the argument. But that case is only remotely relevant. It turned upon the law of New South Wales as laid down in Pt III, headed "Injury arising from Mental or Nervous Shock", of the Law Reform (Miscellaneous Provisions) Act, 1944 (N.S.W.). That statute was passed after the decision, in 1942, of Bourhill v Young. [F57] It modifies the effect of that case. It means that in New South Wales a right of action for nervous shock resulting from a happening, tortiously caused, in which a member of the plaintiff's family was killed, injured or put in peril can be founded on the fact of the relationship of the plaintiff to the person so killed, injured or put in peril. If the plaintiff who suffered the shock is a parent, as defined, or husband or wife of such person, that is enough. If the plaintiff is some other "member of the family", as defined, that is enough if the event which caused the shock happened within his sight or hearing. The operation of the statutory provisions has been considered in New South Wales in several cases, including Anderson v Liddy [F58] and Smee v Tibbetts. [F59] It may be that in that State, by reason of an expressio unius, it is only a member of the family who can sue for nervous shock caused by the sight of a tortious injury to someone else. However that may be, it is of no importance in this case. This case turns on the common law and I am unable to see that any guidance as to the operation of the common law in Queensland today is to be had from considering the operation in New South Wales of a statutory modification of what the common law was in 1944; for in this field the common law has been and is being continuously developed by the courts. There is, however, one thing to be read in Scala v Mammolitti [F60] in which the statute accords I think with the common law. That is that liability for nervous shock, resulting from the sight of another person's injury or peril negligently caused, is not a by-product as it were of liability to that other person. The shock-producing event is a tort to the plaintiff. It does not matter whether the person hurt or endangered could himself have succeeded in an action. As I mentioned above, in Dooley v Cammell Laird & Co Ltd, [F61] the only person who suffered harm was the plaintiff who suffered a nervous shock. And in any case the person whose suffering or peril it was that caused the plaintiff's shock might, for any one of a variety of reasons, fail if he himself brought an action against the defendant.
For these reasons I consider that the order of the Full Court dismissing the appeal from the decision of the learned trial judge was right. This appeal should therefore be dismissed.