Table Of ContentTort Liability for Mental Harm
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Tort Liability for Mental
Harm
PETER HANDFORD
LLB(Birm),LLMPhD(Cantab)
Emeritus Professor, Law School,
University ofWestern Australia
Material on Psychiatric Injury and Medical Research
revised by
PHILIP MITCHELL AM
FASSA, MB BS (Syd), MD (NSW), FRANZCP, FRCPsych
Scientia Professor and Head of School of Psychiatry, University
of New South Wales
THIRD EDITION
LAWBOOK CO. 2017
PublishedinSydneyby
ThomsonReuters(Professional)AustraliaLimited
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100HarrisStreet,Pyrmont,NSW
Firstedition—1993
Secondedition—2006
NationalLibraryofAustralia
Cataloguing-in-Publicationentry
Creator:Handford,PeterR,author.
Title:Tortliabilityformentalharm/byPeterHandford;
materialonpsychiatricinjuryand
medicalresearchrevisedbyPhilip
Mitchell.
Edition:Thirdedition.
ISBN:9780455238364(paperback)
Notes:Includesindex.
Subjects:Torts—Australia.
Liabilityforemotionaldistress—Australia.
Liability(Law)—Australia.
Stress(Psychology)—Australia.
OtherCreators/Contributors:
Mitchell,PhilipB,author.
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For
Pauline
Foreword
by
The Hon Robert French AC
ChiefJusticeofAustralia
Tort Liability for Mental Harm is the third edition of an important Australian
textbook on a difficult and still evolving area of the law. The first edition was
published in 1993 under the title Tort Liability for Psychiatric Damage and
included a Foreword by Sir Thomas Bingham, then Master of the Rolls. The
secondeditionpublishedin2006,includedaForewordbythesamegreatEnglish
jurist, who had become Senior Law Lord in the House of Lords. Had Lord
Bingham lived to see the publication of this third edition, it would have been
utterly appropriate for him to have written this Foreword. His vision was large
and embraced an understanding of the value of comparative law materials in the
development of the common law. That large vision is matched in this edition of
the book, which places the development of Australian law on tort liability for
mental harm in a comprehensively examined historical and comparative law
setting. It also places that development in the context of advances in psychiatric
medicine.
As Professor Handford observes in the Preface, the independent development of
the Australian common law relating to liability for psychiatric injury had not
really begun at the time of the first edition. When the second edition was
published in 2006, the High Court had started to map out an approach for
Australian law which necessarily had to encompass the Civil Liability Acts
enacted some five years earlier and which provide an important statutory
framework for the common law in mostAustralian jurisdictions.
Development has continued apace since the second edition and divergences have
emerged in approaches taken in England, Canada, New Zealand and Australia.
Those divergences may be lamented by some. Nevertheless, they provide a rich
sourceofcomparativematerialbetweenthosejurisdictionsinadditiontomaterial
from Singapore and Hong Kong. For its comparative law scholarship alone, the
book is a valuable resource in this area of tort law.
An important feature of the book is its consideration of the relevant psychiatric
science and contemporary understanding of mental harm. The term “nervous
shock” persisted as a description of compensable mental harm for a time long
past its use by date. Even to a layman’s ear it has a rather out-dated ring to it
now. More seriously, as Professor Handford observes, out-dated terminology can
only serve to confuse and may hinder the development of desirable doctrine by,
viii Foreword
for example, requiring that compensable mental harm arise by way of a sudden
shock. That requirement, rejected in Australia, is retained in England and
elsewhere.
Chapter 5 examines relevant medical and psychiatric research and was revised
forthiseditionofthebookbyProfessorPhilipMitchell,aScientiaProfessorand
Head of the School of Psychiatry at the University of New SouthWales.The use
of that inter-disciplinary perspective is to be highly commended. The law in this
field must have a correlation with the science. Absent such a correlation, the
development of the law takes place in a virtual universe of concepts discarded in
the real world and clinging to a ghostly after life as legal fictions.
A fundamental question which arises out of that part of the text is whether it is
stillpossibletosuggestthatforthelaw’spurposesthereissuchathingaspurely
mental harm. Professor Handford notes Lord Goff’s observation1 that psychiatric
injury as a particular type of personal injury may properly be differentiated from
other types of injury even though scientific advances reveal that it may have a
physical basis. Professor Handford offers the important normative proposition
that:
What is unacceptable is not this separate treatment, but rather the argument that
liability for psychiatric injury, because it is psychiatric, should be much more limited
thanliabilityforphysicalharm.
As he notes courts inAustralia have managed to rebut that argument.
This book unpacks in comprehensive detail every important aspect of its topic.
The way it does that is explained in a valuable overview in the author’s Preface.
There is no point in replicating that exercise here. Suffice it to say, the book is
and will remain for a long time a work of central importance on its topic in
Australia and beyond.
1 WhitevChiefConstableofSouthYorkshirePolice[1999]2AC455at475.
Preface
This new edition appears after an interval of ten years, with a change of title and
a new emphasis. It seeks to concentrate primarily onAustralian law, and the title
adopts the language now used in the Civil LiabilityActs by referring to “mental
harm” rather than “psychiatric damage”. Nonetheless, in the spirit of previous
editions, it continues to provide detailed discussion of the law in other common
law jurisdictions where it is relevant toAustralian developments or when useful
contrasts can be drawn. This change of direction merits a little more explanation
here.
In1993,whenNicholasMullanyandIwrotethefirstedition,Australianlawhad
not given any definite indication that it was going to take an independent
approach to the question of liability for psychiatric injury, although there were
signs that the law was moving in that direction, and this was probably
encouraged by the rather restrictive approach of the House of Lords in the
then-recent decision in Alcock v Chief Constable of South Yorkshire Police
[1992] 1 AC 310 (the first Hillsborough case). However, our aim in writing the
first edition was to attempt a common-law wide survey. As we said in the
Preface,inthespiritofFleming’sLawofTorts,thebookwaswritteninthebelief
that no legal system had a monopoly on excellence, and courts in every country
should be prepared to be receptive to developments elsewhere. The first edition
was co-published by Law Book Co in Australia and Sweet & Maxwell in
England,andhadquitealotofimpactoncourtsinbothcountriesandelsewhere,
to judge by judicial citations over the next few years.
Thesecondedition,writtenbymealone,waspublishedin2006.Bythistime,the
High Court ofAustralia in the Tame and Annetts cases (Tame v New South Wales
(2002)211CLR317)hadmappedouttheapproachtobetakenbyAustralianlaw
– adopting, whether coincidentally or otherwise, many of the views advocated in
thefirstedition—andAustralianlegislaturesinsixoftheeightjurisdictionshad
set out the principles of liability for mental harm in statutory form.Also, by this
timetheHouseofLordshadclearlytakenadifferentandmuchnarrowerpath,as
evidenced by the decisions in Page v Smith [1996] AC 155 and White v Chief
Constable of South Yorkshire Police [1999] 2 AC 455 (the second Hillsborough
case). The second edition nonetheless continued to follow a common-law wide
approach. It reflected the expansion of the subject in the intervening 13 years by
the addition of 15 new chapters, which doubled the size of the book.
Over the last ten years, liability for psychiatric injury has continued to develop
differently in different countries: for example, the Supreme Court of Canada in
Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 has now adopted a rather
different approach from England,Australia or anywhere else. Hence the decision
that the third edition should be first and foremost an account of the Australian
law,dealingmuchmorefullywiththeCivilLiabilityActsthanthesecondedition
x Preface
had done, and taking account of the considerable body of case law on the Acts
that has appeared since the second edition was published. However, it was
important not to lose the comparative focus that has been one of the strengths of
thebook.Accordingly,thiseditionisfirstandforemostadiscussionofAustralian
law; however, the comparative element has been retained as a secondary theme,
because Australian law cannot be properly understood without consideration of
its English roots, and the further development ofAustralian law will be enriched
if it is informed by the experience of other jurisdictions.
TheHonRobertFrenchAC,ChiefJusticeofAustralia,kindlyconsentedtowrite
a Foreword to the new edition. He takes the place of the late Lord Bingham of
Cornhill KG, Senior Law Lord in the House of Lords, who contributed
Forewords to the first and second editions. The fact that the Foreword has been
written by the chief judge of Australia’s highest court, rather than his United
Kingdom equivalent, itself emphasises the changed direction of the book. Lord
Bingham’s contribution lives on in the quotation with which all three editions
have begun.
Another change of emphasis in the present edition should also be noticed. The
first edition was influenced by a conviction that the then-current state of the law
was not satisfactory and that the ambit of liability could and should be extended:
one reviewer called it a “crusading book”. As noted above, by the time of the
second edition many of the suggested changes had been adopted by Australian
law, although regrettably English law had taken, and continues to take, a much
more conservative path. However, at least so far asAustralian law is concerned,
thepresenteditionhasbecomeprimarilyanexpositionofandcommentaryonthe
law as it is, although some of the criticisms and suggestions made in earlier
editionsremain.Thepassageoftimeallowsreflection,andasaresultsomeofthe
views previously expressed have been modified somewhat — to borrow a
musicalanalogyusedbythereviewermentionedearlier,inoneofhisownworks,
Ihavesharpenedandflattenedafewofthenotes,andhavetakentheopportunity
to harmonise a few accidentals. Thanks are due not only to this reviewer (under
whose supervision I took my first research steps in this area) but also to others,
who have generally commented favourably, though one or two clearly wished
that I had written a different book.
In line with the changed emphasis of the book, there have been some important
changes in the order of treatment of the subject as compared with the previous
edition.
1. The first three chapters (comprising Part I of the book) are in essence new,
thoughtheydrawinpartonmaterialthatpreviouslyappearedinvariousparts
of the book. After the first chapter, which explores the search for limits,
Chapter 2 discusses the development of the Australian law and Chapter 3
provides contrast by summarising the law in the other major common law
jurisdictions. Discussions in later chapters of the law on particular topics in
particular jurisdictions need to be seen against this general background.
