Between: MOUNT ISA MINES LTD
And: PUSEY

Judges: Barwick CJ
McTiernan 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:
WALSH J

The respondent claimed damages against the appellant in an action in the Supreme Court of Queensland which was tried by Skerman J. without a jury. It was an action in negligence. The respondent on 7th April 1966 was on duty as an employee of the appellant. Two electricians named Kuskopf and Docherty employed by the appellant were carrying out a test, using an instrument known as a multi-meter, on a switchboard in the appellant's powerhouse. In the course of the test the leads of the instrument were placed in contact with certain live parts on the switchboard and a short circuit was caused which in turn caused an electric arc and Kuskopf and Docherty received severe burns. When this incident occurred the respondent heard what he described as "some sort of explosion", followed by another explosion. He ran up a ladder to the floor above and there he saw Kuskopf standing with no clothes remaining on him and "just burnt up". The respondent supported the injured man and assisted him down to ground level. He did not actually see Docherty but knew that he was in the switchboard area. Later the respondent was informed of Docherty's death which occurred on the following day and later still he was informed of the death of Kuskopf, who died on 16th April 1966.

The respondent claimed in the action that, as a result of those events, he suffered an acute schizophrenic reaction and that this disability was caused by the negligence of the appellant by its servants or agents. Skerman J. held that the respondent was entitled to succeed and entered judgment for him in the sum of $10,000. Subsequently, the Full Court of the Supreme Court of Queensland ordered that an appeal against that judgment should be dismissed. ^[F62] This is an appeal against that order.

Before I refer to the submissions made on behalf of the appellant, some important facts found by the learned trial judge should be mentioned. The injuries suffered by Kuskopf and Docherty were, in part, the result of their own negligence. But it was found also that the appellant was guilty of "personal or managerial negligence" in failing to instruct those employees that the multimeter instrument which they were using in "testing for dead" should be proved on a low capacity fused system. It was found that the respondent suffered a schizophrenic reaction and a severe type of mental disturbance as a direct result of seeing and assisting Kuskopf. This, said his Honour, "amounted to a form of ill-health within the meaning and scope of the term `shock' or `nervous shock' which has been the subject of discussion in many reported cases". His Honour found also that it was foreseeable that if a short circuit occurred and an electric arc was created the electricians in the powerhouse would be injured and that other employees in the building might go to the rescue and sustain burning injuries. It was foreseeable that "some employee might sustain gruesome burning injuries".

In the argument for the appellant the findings to which I have just referred were not disputed. Therefore it is not now in dispute that a breach of the duty which the appellant had to its employees Kuskopf and Docherty, consisting of a failure to instruct them properly concerning the test to be performed by them, was a cause of gruesome injuries suffered by them. It is also not in dispute that the circumstances were such that it was foreseeable that persons of a class which included the respondent might go immediately to the assistance of a person so injured. It is not in dispute that the respondent did go to the assistance of Kuskopf who had been gruesomely injured and that the injury to the respondent, in respect of which he brought the action, was in fact the result of his experience in seeing and assisting Kuskopf when he was in that condition.

What is disputed is that it was reasonably foreseeable that the respondent would suffer any injury of the kind which did, in fact, occur. It was said that it has been settled by the decision in Overseas Tankship (U.K.) Ltd v Morts Dock & Engineering Co Ltd (The "Wagon Mound" [No. 1]) ^[F63] that there cannot be liability for negligence for damage which is not of such a kind as a reasonable man should have foreseen. It was contended that in the present case the finding was not open or, at least, was clearly wrong, that it was foreseeable that the respondent would suffer any such significant mental illness or disturbance as the schizophrenic reaction which did occur. It was not foreseeable that he would suffer any injury which could be described as being of the same kind as that. All that was reasonably foreseeable was that he would have transient feelings of revulsion and distress.

If it be accepted as correct that there could be no liability in the present case for damage which was of a kind which could not have been reasonably foreseen then, in my opinion, the result of the appeal must depend entirely upon the validity of the contention that it should have been found that damage of that kind was not reasonably foreseeable. Counsel for the appellant appeared to suggest at times in the course of his argument that another separate question was raised by the appeal, namely, the question whether or not there had been a breach of any relevant duty owed by the appellant to the respondent. But, in my opinion, this is not so. There can be no remaining question as to the existence of a relevant duty or as to the breach of it if, in addition to the findings that there was a breach of a duty owed by the appellant to Kuskopf and Docherty and that this was a cause of the injuries to them, two further propositions were established, namely, (1) that it was foreseeable that if injury was thus caused to those servants or either of them other persons in the building such as the respondent might go to investigate and to render assistance; and (2) that it was foreseeable that such a person going to the scene might suffer an injury of the kind for which the respondent sued and which he proved to have been caused, in fact, by the incident in question. The first of these propositions was established by a finding which by concession ought not to be disturbed. In my opinion, this concession was correct. It was clearly foreseeable that, upon the occurrence of such an incident as happened when the electricians were burnt, a person who was in the building and close enough to hear the noise made by the happening would go quickly to the scene and would assist, if he could, any person who had been injured. The consequence of this was (assuming that it was also foreseeable that a person thus going to the scene might suffer injury of the relevant kind, that is to say, assuming that the second proposition stated above is made out), that the respondent was one of a class of persons injury to whom could be foreseen as a consequence of the failure of the appellant to exercise reasonable care in relation to the giving of instructions to the electricians. Thus the respondent was within "the area of potential danger" to which Lord Thankerton referred in Bourhill v Young. ^[F64] In the language of Lord Russell in the same case (at p. 102) the respondent was one of "those individuals of whom it may be reasonably anticipated that they will be affected by the act which constitutes the alleged breach". The respondent was the appellant's "neighbour" in Lord Atkin's sense: Donoghue v Stevenson. ^[F65] (See Bourhill v Young ^[F66] .) If then as a result of the appellant's negligent omission to instruct its employees there was injury to the respondent which was of a foreseeable kind it cannot be disputed, in my opinion, that there was a breach of a duty of care owed to him.

Since I am of opinion that the learned trial Judge's finding that the injury suffered by the respondent was one which was reasonably foreseeable ought not to be disturbed, I need not consider whether or not the respondent was entitled to found his claim simply on the basis that he was an employee of the appellant and that there was a breach of a duty of care arising out of that relationship. In his reasons for judgment Skerman J. said:

"If, as happened, intense heat was created it was foreseeable that electricians in the power-house would be injured and property damaged by fire and also that other employees in the building might go to the rescue and sustain burning injuries. It was also foreseeable in my view that in such case some employee might sustain gruesome burning injuries comparable with the horrible consequences of vehicles coming into collision (including on occasions death by fire as a result of the collision), with at least the possibility of shock and some form of mental illness or neurosis to an employee in the building or in that vicinity who went to the assistance of the person suffering burning injuries."

This passage indicates that his Honour's view was that it should be regarded as foreseeable that an employee in the building would go to the scene. On that view the fact that the respondent was an employee was a relevant fact in deciding whether or not he was a person within "the area of potential danger" or within the area of risk. But on that view the liability of the appellant does not rest necessarily upon a duty arising out of the relationship of employer and employee. It rests upon a finding of a duty owed to all persons of whom it might reasonably be anticipated that they might suffer injury (of the relevant kind) and upon a finding that the respondent was such a person. It is on that basis that Skerman J. appears to have held the appellant liable. Earlier in his reasons his Honour said:

"It seems to me that it does not necessarily follow from my findings of negligence in Docherty's case that the defendant was in breach of its duty to the plaintiff Pusey by reason of the relationship of employer and employee."

It does not appear to me to be necessary in this appeal to take any different approach to the case from that which appears to have been taken by Skerman J. or to discuss the question whether or not the duty of the appellant as the employer of the respondent imposed any greater obligation upon it than to take reasonable care to protect him from the risk of foreseeable injury.

I am of opinion, as I have stated, that the finding that the injury suffered was of a kind which was reasonably foreseeable was open to the learned trial Judge and ought not to be disturbed. In a passage which I have quoted his Honour stated that it was foreseeable that an employee might sustain gruesome burning injuries "with at least the possibility of shock and some form of mental illness or neurosis" to another employee who went to his assistance. In my opinion the finding was correct that it was foreseeable that if a person went to the assistance of another person who had suffered gruesome burning injuries there was at least the possibility of shock and of some form of mental illness or neurosis. But it is necessary to consider whether that finding was sufficient to satisfy the test of foreseeability laid down by The "Wagon Mound" (No. 1) ^[F67] as being the effective criterion for determining "culpability" and not merely for determining compensation. One must first ask whether a finding that there was at least the possibility of some form of mental illness or neurosis, in a case in which the evidence showed that the particular result which occurred was a rare and exceptional occurrence, was enough to attract liability or whether it was necessary that there should have been a finding that it should have been foreseen that there was a risk of greater magnitude than that of the occurrence of an injury of that kind. In my opinion an answer favourable to the respondent must be given to that question. There are authorities which would suggest the contrary. But I think that it would be inconsistent with the exposition of the meaning in this context of the term "reasonably foreseeable" given in Overseas Tankship (U.K.) Ltd v The Miller Steamship Co Pty (The "Wagon Mound" (No. 2) ^[F68] to hold in the circumstances of the present case that the appellant was not liable for the reason that the relevant risk was too small or could be regarded as too remote.

One must ask also whether or not the finding that "shock and some form of mental illness or neurosis" was foreseeable satisfies the requirements of the principle asserted in The "Wagon Mound" (No. 1) ^[F69] that "the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen". In the application of this principle there may be difficulty in some cases in determining whether damage for which an action is brought and damage which was foreseeable are the same "kind" of damage. But in the present case there are two reasons which appear to me to justify the conclusion reached by Skerman J. The first is that it is not a condition of liability that either the precise character of the damage or the extent of it should have been foreseen. It is necessary only that the damage suffered should not be different in kind from that which was foreseeable: see Hughes v Lord Advocate ^[F70] and Chapman v Hearse. ^[F71] The second reason is that in The "Wagon Mound" [No. 1] ^[F72] express approval was given to the statement of Denning L.J. in King v Phillips ^[F73] that "there can be no doubt since Bourhill v Young ^[F74] that the test of liability for shock is foreseeability of injury by shock". Thus injury by shock is treated as a distinct "kind" or class of damage for the purposes of the general principle enunciated in The "Wagon Mound" [No. 1] ^[F75] that liability depends upon the foreseeability of the kind of damage for which the defendant is sued.

It is not here necessary to consider whether or not there are satisfactory reasons for treating injury by shock as different in kind from other forms of personal injury. If all personal injuries, whether "mental" or "physical", were to be treated as being of the same kind, then it would be evident in the present case that damage of a foreseeable kind was suffered. But for the purposes of the present case the statement in The "Wagon Mound" [No. 1] ^[F76] that the test of liability for shock is foreseeability of injury by shock may be accepted. It treats "injury by shock" as a distinct kind of injury. Its acceptance means that all forms of mental or psychological disorder which are capable of resulting from shock are to be regarded as being, for the purposes of the foreseeability test of liability, damage of the same kind. If, therefore, some form of mental illness or neurosis was foreseeable, as Skerman J. found, and in my view properly found, the respondent satisfied the requirements of that test. He proved that the damage which he suffered was of a kind which was foreseeable.

If the question of liability in the present case is to be determined by the application to the facts of the criterion of foreseeability in accordance with The "Wagon Mound" (No. 1), ^[F77] then for the reasons which I have stated I am of opinion that the judgment in favour of the respondent should not be disturbed. I am of opinion that that is the criterion of liability which should be applied. The appellant did not really contend otherwise. There are, however, some authorities in which special limitations have been placed upon liability for nervous shock and the question of liability has been approached and considered in a different manner from that of liability for physical injuries. But in my opinion there is no established rule of law which precludes me from accepting as correct the application by Skerman J. of the general criterion of foreseeability to the facts of this case. There is no established rule which requires me to hold that there could be no liability in the appellant on the facts of this case, because some special criterion of liability for "nervous shock" was applicable and was not satisfied. The relevant authorities on this subject have been reviewed in the judgments of Skerman J. and of the members of the Full Court in this case and they were discussed fully in the judgment of Burbury C.J. in Storm v Geeves. ^[F78] Therefore, I may deal briefly with the matter now under discussion.

Whatever the case of Victorian Railways Commissioners v Coultas ^[F79] should be taken to have actually decided (as to which see the dissenting judgment of Evatt J. in Chester v Waverley Corporation) ^[F80] it should not now be accepted as establishing a rule which precludes the respondent from success in this case. In Bourhill v Young ^[F81] Lord Macmillan said:

"The crude view that the law should take cognizance only of physical injury resulting from actual impact has been discarded, and it is now well recognized that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact."

The "crude view" to which his Lordship referred has been rejected by the House of Lords in that case and, again, by the Privy Council in The "Wagon Mound" (No. 1), ^[F82] as well as in other modern cases.

In my opinion the present case does not require the application of any special rule limiting liability for nervous shock. I think, in accordance with what Burbury C.J. said in Storm v Geeves, ^[F83] that the case requires the application to its facts of "the general test of reasonable foresight". That was the test which was applied, in my opinion, in two cases in this Court, which might appear at first sight to give some support to the contention of the present appellant that in this case it incurred no liability. In Bunyan v Jordan ^[F84] it was held that the plaintiff had not established any cause of action against the defendant, although his conduct had caused her to suffer shock and a resulting nervous condition amounting to an illness. That conduct of the defendant was alleged to have been deliberate and wilful rather than careless. But it was argued also that the defendant was liable in negligence. The ground of the decision in favour of the defendant was not that there was some special rule which precluded the plaintiff from recovering damages in any circumstances, in an action in negligence, for an injury of the kind which she suffered. The ground was that on the facts of the case the finding was not open that harm to the plaintiff of the kind suffered was reasonably foreseeable. That appears from the reasons for judgment of Latham C.J., ^[F85] of Rich J., ^[F86] of Dixon J. ^[F87] and of McTiernan J. ^[F88]

It was for the same reason that the plaintiff failed in Chester v Waverley Corporation. ^[F89] The view taken was that the injury to the plaintiff was not foreseeable and, in consequence, the existence of a duty of care owed to her was not established, there being no other basis upon which such a duty of care could be found to exist. I agree with the observations upon that case made by Burbury C.J. in Storm v Geeves. ^[F90] His Honour concluded those observations by saying: ^[F91]

"There is no proposition of law in Chester v Waverley Corporation ^[F92] which is conclusive against liability of the defendant in the present case. The result depended upon the court's view of the result of the application of the reasonable foreseeability test to the facts."

I adopt those statements and apply them to the case which is now before this Court. In Chester's Case ^[F93] the Court, upon a consideration of the facts, took differing views as to what was within the ordinary range of human experience ^[F94] and, therefore, as to what could be found in that case to have been foreseeable. But the conclusion of the majority that a finding was not open on the facts of that case that injury of the kind suffered was foreseeable cannot be treated as a precedent requiring a like conclusion on the facts of this case.

In the present case the respondent was not a close relative of the man who suffered injury. In my opinion there is no rule of law which made it a condition of the respondent's right to recover that he should have been a close relative. No doubt a family relationship between a person who has been injured and a plaintiff who claims to have suffered nervous shock in consequence of that injury may be a relevant and important fact in deciding the question whether or not injury of that kind to the plaintiff was reasonably foreseeable. But there is no warrant for holding that that question, which is a question of fact, must always receive a negative answer unless the plaintiff be a close relative.

On the findings made by Skerman J. it is not necessary to consider whether liability for nervous shock is limited to cases in which the plaintiff had no unusual susceptibility to shock or had an unusual susceptibility which was known or ought to be known to the defendant.

In my opinion the appeal should be dismissed.