handford_tort_liability_tlj07.pdf

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Book Review

Mullany and Handfords Tort Liability for Psychiatric Damage, 2ndedition by P Handford, Thomson Lawbook Co, Sydney, 2006, 761 + lxxxv pp,ISBN 0-455-22294-0 (pbk), $159.95.

This is the second edition of a well-known book, the rst in the commonlaw world to devote itself exclusively to tortious liability for the causation of psychiatric damage. The book takes in liability in intentional tort andnegligence and also surveys redress available under criminal injuriescompensation schemes. Obvious merits include its coverage, exhaustiveresearch and accurate descriptions of cases. However, a number of questionsarise. A rst question concerns the kind of book this is supposed to be. On theone hand, it looks like a practitioners book, encyclopaedic in its coverage of statements of principle and of cases covering every fact situation imaginable(and some which are not) involving tortiously-inicted psychiatric damage.The book does well to present the common law in various jurisdictions. Thisis the product of admirable effort on the part of the author. The practitionerreader might be perturbed by the number of rst-instance and interlocutorycases through which he or she is obliged to tread, but he or she will never beshort of an analogy to wave in front of a judge.

On the other hand, there is more than a hint of the polemical in thecommentaries upon the cases. Indeed, this is a crusading book, in which the

author attempts to mesmerise crusty conservatives with dictum after dictumpointing towards ever-more liability. The author takes it as obvious that thosewho suffer psychiatric damage at the hands of another deserve compensationand sees little need to delve into the practical problems that arise. The concernfor victims and the acute awareness by the author of the challenges that theyface is apparent throughout the book. But, as will be demonstrated, thearguments in favour of ever-more liability are perceptibly thin.

In the eyes of the author, the problems of attributing responsibility forpsychiatric damage in secondary victim cases lie only in determining thefactual issues of foreseeability of harm (never properly-analysed) andcausation (ditto). On this basis, all that might be needed to obtain an award of damages is the production of a medical certicate. In fact, even this might besuperuous, the author asserting that the causation of mere distress should beenough in cases of egregious negligence (p 81). The minimalist,causation-focused nature of the authors views on liability is captured well inthe following statement:

Once a causal link between the defendants actions and the plaintiffs injury isproved, the precise nature of the injury-producing phenomenon is immaterial andshould be recognised as such. Not only where psychiatric damage results from agradual accrual of shock, but also where mental distress (which on one view rightlydoes not sound in damages) leads to or transmutes into recognised psychiatricdamage, that should be compensable (p 311).

This kind of nonchalance about liability rules is surprising, given that morethan three-quarters of the book concerns duty issues in negligence. And what

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is duty about? This has proven to be a contentious issue in torts scholarship.But there is a good case for concluding that duty is concerned with thecontours of liability as between classes of person. These contours are denedby the recognition or denial of legal relationships between classes. Duty is aninherently normative element of negligence, in the sense that courts have aresponsibility to determine the overall appropriateness of the imposition of legal obligations: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR540; 194 ALR 337 at [242] per Kirby J; A Mason, Policy Considerations inA Blackshield, M Coper and G Williams (Eds), The Oxford Companion to the High Court of Australia , OUP, South Melbourne, 2001, p 535. Many of theconsiderations that courts concern themselves with do not arise from the

immediate interaction between the parties. These matters (for good or ill)encompass the wider picture of liability in an imperfect system of compensation: J Bell, Policy Arguments in Judicial Decisions , OUP, Oxfordand New York, 1983, p 22.

In the view of the author, the courts otherwise-inexplicable hesitation toexpand liability for negligently-inicted psychiatric damage (particularly inthe United Kingdom) derives from something approaching ignorance. Peoplehave always feared what they do not understand and been sceptical of thatwhich they cannot verify by sight (p 734). It is as though judges decidingcases in Victorian-era courtrooms might be trapped in a time-warp populatedby horses and buggies and pregnant shwives. The assumption is that, onceproperly-versed in the mechanisms by which psychiatric injury or distress iscaused, all will fall into place. Even if it is conceded that there is a possibility

that a certain percentage of false claimants might slip undetected through thescreening process, this is an illegitimate basis for restricting the right toredress in deserving cases (pp 7345), as is any fear of the oodgates opening(p 736). The very last words of the book evince a hope that the boundarystone has not found its nal resting place (p 739).

The chapters on the limiting factors in secondary victim cases follow adistinct pattern. They begin with discussion of the oh-so-quaint historicalbackground to the limitation rule in question, point to cases in which the rulehas caused otherwise meritorious claims to fail, before exposing the fallacyin the rule by reference to the most extreme of decisions in favour of liability.The lesson is that things can always be pushed further. We are even directedto authority from the Isle of Man in favour of abandoning the sudden shockrequirement ( Ward v Ballaughton Estate (1975) Ltd , discussed at p 308).

All of this might have seemed like the harmless musings of an academictrapped in an ivory tower. Yet the musings of the author have beenconsiderably fortied by the decision of the High Court of Australia in the joined cases of Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449, which abandoned much prior authorityon liability for negligently-caused psychiatric damage in secondary victimcases. The exuberance of the High Court has been partly-contained by recentlegislation (more of which in a moment); the exuberance evident in the rstedition of this book has not been contained in the second. Consider theobservation that liability should be extended to cases involving near-misses.The author asserts that:

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the author is able to demonstrate by reference to cases such as those on the USzone of danger rule is the difficulty of accepting limitations based solelyupon the impact that the defendant has had upon the physical environment inwhich the secondary victim is situated. But the author does not offer anyconvincing alternative to this attempt at both limitation and justication.Legislatures in Australia arguably have done only marginally better insecondary victim cases, restricting claims to those where the plaintiff is eitherat the scene or has some relationship to the primary victim who is killed orinjured (eg, Civil Liability Act 2002 (NSW) s 30; Wrongs Act 1958 (Vic)s 73).

The failure to consider the dialectic nature of rule-making aside, the book devotes very little attention to the statute laws which now determine manyissues relating to negligence causing psychiatric damage in Australia. Thesestatutes, which differ in their detail from state to state, are covered in just vepages (out of a total of 761), the last sentence of the relevant section reading:Further comment on the disunited and unsatisfactory state of Australian lawfollowing the rush to adopt civil liability legislation seems superuous(p 432). In fact, what seems superuous is much of the discussion outside theve pages on the new statute law. A 12-page chapter, for example, is devotedto discussion of UK law reform proposals that have not been adopted (see nowUnited Kingdom, Department for Constitutional Affairs, The Law on Damages, Consultation Paper CP 9/07 , 2007, (accessed 16 May

2007), Ch 3)! For the most part, the author is xated on the common law(across various jurisdictions), the ills of the common law (at least prior toTame v New South Wales ) and proposals to reform that law by a move to anopen-slather liability regime.

Of greater interest, at least to the academic, are the chapters which explorenew frontiers of common law liability for psychiatric damage not covered bystatute. These include Ch 3 on the Medical Perspective, Ch 26 on BadNews and Ch 27 on Fear for the Future. Although the reader might disagreewith the viewpoints of the author, it is evident from the discussion that sometruly fascinating issues are likely to exercise courts in the future. ForAntipodean lawyers, the author provides an impressive amount of comparative case-law, all described with a profound respect for lives ruined

and with a determined resolve to see that wrongs are righted. Some of thecases are quite unbelievable. In particular, readers ought to look out for Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C), involving a carcontaining two children perched precariously on the side of a bridge, twocollisions, an assault and a heart attack (p 626).

Unfortunately, however, there is much that is unsatisfactory in the secondedition of this book. Many of the concerns raised in this review werementioned by eminent commentators with respect to the rst edition: see, eg,P Cane (1993) 23 UWA L Rev 378; D Robertson (1994) 57 MLR 649;

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D Partlett (1997) 45 AJCL 171; L Skene (1994) 2 TLJ 96; T Weir [1993]Cambridge LJ 520. Lamentably, the boundary stone has not been moved veryfar at all.

Christian Witting Associate Professor,

Law SchoolThe University of Melbourne.

226 (2007) 15 Torts Law Journal

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