Tame V New South Wales: Negligence And Psychiatric Injuries

Background of Tame v New South Wales

A leading case with regards to duty owed under negligence and its subsequent breach, leading to psychiatric injuries is the case of Tame v New South Wales (2002) 211 CLR 317. In this case, the plaintiff made a claim of negligence against the police officer, along with a claim of defamation, due to the clerical mistake on part of the police, in filing the accident report. When an appeal was made by the plaintiff against the police, for the negligence of police causing her psychiatric condition to be developed, the appeal was rejected by the High Court. The police had accidently put the blood alcohol level of Tame, in the accident report as 0.14, when in reality, this reading was of the other driver. Tame claimed that this had led her to feel that no on respects her, which led to her developing a psychiatric condition (Sappideen, 2009).

In the following parts, a discussion has been carried over this case and the arguments have been presented from the defendant’s side, along with the judgment of the case. But, before moving on to the arguments of the defendant, the facts which led to this case have been highlighted.  

Tama was involved in a motor vehicle collision which occurred on January 11^th, 1991 outside the Sydney area at Richmond. The accident was the complete fault of Terence Lavender, who was the driver of the other vehicle. When his blood alcohol level was checked, the reading showed 0.14, in addition to Lavender driving over the wrong side of the road. When the blood alcohol level of Tame was checked, it showed a reading of zero (Federation Press, 2017).

The traffic collision report was prepared by Constable Morgan who belonged to the Windsor Police Station and he left the details blank regarding the blood alcohol content of both of the drivers. The acting traffic sergeant in February 1991 completed these portions and he accidently stated that both the drivers had a blood alcohol level of 0.14. Around late March 1991, the acting sergeant detected his mistake and he corrected the original report (Health Law Central, 2017).

Tame sued Lavender as he was driving an uninsured vehicle and the claim was handled by the insurance company, NZI. The claim was settled and Tam was paid a considerable amount. Though by 1992 May, the insurance company became hesitant in paying for the physiotherapy treatment of Tame, due to her injuries and this resulted in Tame being anxious. Tam informed her solicitor, Weller that she had no drinking problem since last twenty years and the very notion that she was drunk during the accident horrified her. This occurred when Weller informed her of the report which showed her as being drunk. She got worried about her reputation due to this erroneous mistake. Even though the police gave her their formal apology, she continued to blame them for the reluctance on part of NZI in paying for her treatment. Soon, she became obsessed and was diagnosed with psychotic depressive illness. Due to these reasons, she made a claim against the police in the District Court of NSW (Federation Press, 2017).

Arguments from the defendant

The defendant would like to bring to the notice of the court that the defendant had already agreed that they made an erroneous mistake and hence, they had already issued a formal apology to the plaintiff. The defendant would like to highlight the plaintiff had claimed that due to the actions of the defendant, her reputation was affected. But, the claims of defamation, made by the plaintiff cannot be upheld. This is because in order to prove that the careless misstatement of the defendant had defamed her, reliance by a third party over this statement has to be shown. In this case, it is quite clear that no one relied upon the careless misstatement of the defendant. And this can be proved on two bases. The plaintiff cannot show that any one relied on this misstatement. And secondly, the insurance company also considered the changed statement made by police after acknowledging their careless misstatement, which proves that even the insurance company had not relied upon the careless misstatement (HCA, 2017).

Another claim which has been made by Tame is that the police had been negligent in the statement made by them, which has led to her psychiatric condition. To show that a case of negligence is present, certain elements have to be shown by the plaintiff (Gibson and Fraser, 2014). The elements include the obligation of care, the contravention of the same, a harm or loss resulting from the contravention, direct causation, losses cannot be too remote and the loss being foreseeable (Harvey and Marston, 2009). The defendant would like to take help of the case of Caparo Industries plc v Dickman [1990] 2 AC 605 to show that they did not have a duty of care, owed towards the plaintiff (E-Law Resources, 2017). As per this test, there had to be proximity between the plaintiff and the defendant, the penalties imposed has to be just, and the risk of harm has to be reasonably foreseeable (Lunney and Oliphant, 2013).

In this particular case, there was a presence of proximity between the parties. However, the risk of Tame getting a psychiatric injury just because the report was wrongly filled could not have been foreseen in any circumstances by the police. And so, if the penalties are imposed upon the defendant, they would not be reasonable or just. Hence, on the basis of this threefold test, the defendant did not owe a duty of care towards the plaintiff for her psychiatric injury (Australasian Legal Information Institute, 2017).

Elements of negligence and duty of care

In this regard, the case of Donoghue v Stevenson [1932] UKHL 100 also provides assistance. In this issue, the court had held that by the reasons of manufacturing the ginger beer, by failing to ensure that the bottle was safe for the consumption of its consumers, and the resultant dead snail found in the bottle, made the court form a view that S had breached his duty of care (Latimer, 2012). In this particular case, the defendant had no duty of care towards Tame to keep her safe from the psychiatric injury due to the reasons of the same being not foreseeable. In Donoghue v Stevenson a contamination of bottle was foreseeable and hence, a duty was present. But for the defendant, this duty is not present (HCA, 2017).

Some of the other points which the defendant would like to highlight include that for showing negligence, the violation of this duty has to be shown, along with a direct causation between the injury and the negligence of the defendant. In this case, the police owed a duty of care towards Tame to keep her safe but it did not have a duty of care to safeguard her from a psychiatric injury as the same was not related to their error (North, 2017). The negligence of police can only be shown in the error regarding the wrongly filled report but that has no relation with the psychiatric injury of the plaintiff as these have no co-relation. The loss, no doubt was of substantial nature and hence, the damages could be awarded as a psychiatric injury is not held as too remote (HCA, 2017).

The key point revolving around this case is the foreseeability. The foreseeability of risk of harm, in Wyong Shire Council v. Shirt (1980) 146 CLR 40 was held to be the view of a prudent person. In short, if a prudent person believes or forms a view that there was a presence of risk of harm under the given circumstances, then the foreseeability of risk of harm would be deemed as present. Though, if the prudent person believes that risk of harm was absent, then the case of negligence would not be upheld due to lack of foreseeability (Jade, 2017). In this present case, no one could have predicted, neither a reasonable nor a prudent person that a wrongly filled form could cause a person to be ill in a psychiatric manner. So, this case also affirms the point put forward by the defendant that they cannot be held liable for a case of negligence (HCA, 2017).

Foreseeability of risk of harm

Along with the requirement of reasonable predictability of risk of harm, there has to be a present of proximity of relationship between the plaintiff and defendant as was held by Deane J I the matter brought forward in Jaensch v Coffey [1984] HCA 52. The judge was of the view that in order to hold a person responsible for negligence, based on the particular situation of the case, the capability of forecasting the particular loss has to be evaluated. Plus, there has to be a relationship which can attract a duty of reasonable care in a lawful manner (Swarb, 2015).

In the present case, the circumstances revolved around a form being wrongly filed. This wrong filing could not cause any person to get a psychiatric injury. Even though the circumstances involved the accident, but the psychiatric injury was developed long after. And even if the accident is to be blamed for this psychiatric injury, the accident was not the fault of the defendant (Allens, 2017). And so, the defendant could not be held liable for the same. The only thing for which the defendant could be held liable is the wrong form filing, which most certainly did not result in Tame’s psychiatric injury. There is no such relationship present in this case which could attract a duty of care on part of the police towards the mental condition of Tame, as none of the actions of the defendant could have resulted in such injury (HCA, 2017).

In this case, the appeal of Tame was rejected by the High Court and they held that the police could not foreseen, or even any person for that matter could not have foreseen that by wrongly filing a simple form, a person could have gotten mentally ill (Vines, Roque and Rumber, 2010). The judges were of the view that in order to apply Donoghue v Stevenson to uphold the presence of duty of care, the loss has to be reasonable, which could have been contemplated by someone. Here, the police officers did not have a duty of care towards Tame to prevent Tame from being distressed due to the reasons of filing of report. This is because if the police officers are required to check the emotional distress due to report filing, it may lead to his duty of honestly filling the report being infringed. And so, a police officer cannot be reasonably required to keep the mental health of Tame in mind while filing their blood test report (HCA, 2017).

Court’s judgment

Moreover, the judges held that the damages can only be awarded for a recognized psychiatric injury and cannot be merely awarded for the distress caused to an individual (Handford, 2017). In the case of Tama, there was an absence of a special relationship which could make the police liable on the basis of Donoghue v Stevenson. Any duty which is subject to the investigation conflicts the duty of an individual by being a police officer. And so, if duty of care is kept over the duty of a police offer, the laws would be overlapped (HCA, 2017).

Duty of care, in view of McHugh J could only have been owed when the nervous shock could have been foreseen to an individual’s normal fortitude (Richardson, 2017). And the foreseeability in reasonable manner had to be decided as per the neighbor principle, where the reasonableness has to be kept supreme. Unless the police specifically knew that an individual is prone to psychiatric injury, they could not foresee that mere distress shown on a police report being filed after an accident would result in psychiatric injury for a person. If a finding is carried in negligence, the same would encroach upon the defamation law, where an action could still have been upheld (HCA, 2017).

Hence, the court concluded that in this particular case, the police officers owed no duty of care towards Tame as the same would result in their official duties being conflicted. Moreover, there was a lack of foreseeability on part of a reasonable person, that Tame could have been psychiatrically injured, due to wrong form filing (Webstroke Law, 2017).   

References

Allens. (2017) 2001 Annual Review Of Insurance Law – Duty Of Care, General Tortious And Trade Practices Act Liability. [Online] Allens. Available from: https://www.allens.com.au/pubs/ari/2001/care.htm [Accessed on: 20/05/17]

Australasian Legal Information Institute. (2017) Tame v New South Wales [2002] HCA 35; 211 CLR 317; 191 ALR 449; 76 ALJR 1348 (5 September 2002). [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/au/cases/cth/HCA/2002/35.html [Accessed on: 20/05/17]

E-Law Resources. (2017) Caparo Industries pIc v Dickman [1990] 2 AC 605  House of Lords. [Online] E-Law Resources. Available from: https://www.healthlawcentral.com/cases/tame-v-new-south-wales/ [Accessed on: 20/05/17]

Federation Press. (2017) Tame v New South Wales Annetts v Australian Stations Pty Ltd. [Online] Federation Press. Available from: https://www.federationpress.com.au/pdf/Tame%20v%20New%20South%20Wales.pdf [Accessed on: 20/05/17]

Gibson, A., and Fraser, D. (2014) Business Law 2014. 8^th ed. Melbourne: Pearson Education Australia.

Handford, P. (2017) Psychiatric injury: the new era. [Online] The University of Western Australia. Available from: https://research-repository.uwa.edu.au/files/1003225/3609_PID3609.pdf [Accessed on: 20/05/17]

Harvey, B., and Marston, J. (2009) Cases and Commentary on Tort. 6^th ed. New York: Oxford University Press.

HCA. (2017) Tame v New South Wales [2002] HCA 35. [Online] HCA. Available from: https://eresources.hcourt.gov.au/downloadPdf/2002/HCA/35 [Accessed on: 20/05/17]

Health Law Central. (2017) Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35. [Online] Health Law Central. Available from: https://www.healthlawcentral.com/cases/tame-v-new-south-wales/ [Accessed on: 20/05/17]

Jade. (2017) Wyong Shire Council v Shirt. [Online] Jade. Available from: https://jade.io/j/?a=outline&id=66842 [Accessed on: 20/05/17]

Latimer, P. (2012) Australian Business Law 2012. 31^st ed. Sydney, NSW: CCH Australia Limited.

Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5^th ed. Oxford: Oxford University Press.

North, D.O.J. (2017) Personal Injury Claims – Psychiatric Injury. [Online] Bar Web. Available from: https://portal.barweb.com.au/upload/fck/north%20sc%20-%20pi%20claims.pdf [Accessed on: 20/05/17]

Richardson, B. (2017) Nervous shock in the High Court. [Online] Find Law. Available from: https://www.findlaw.com.au/articles/1364/nervous-shock-in-the-high-court.aspx [Accessed on: 20/05/17]

Sappideen, C., at al. (2009) Torts, Commentary and Materials. 10^th ed. Pyrmont: Lawbook Co, pp. 209-10.

Swarb. (2015) Jaensch v Coffey; 20 Aug 1984. [Online] Swarb. Available from: https://swarb.co.uk/jaensch-v-coffey-20-aug-1984/ [Accessed on: 20/05/17]

Vines, P., Roque, M.S., and Rumber, E. (2010) Is “nervous shock” still a feminist issue? The duty of care and psychiatric injury in Australia. [Online] Bar Web. Available from: https://sites.thomsonreuters.com.au/journals/files/2010/10/j19_v018_TORTLREV_pt01_vines_sanroque_rumble.pdf [Accessed on: 20/05/17]

Webstroke Law. (2017) Tame v New South Wales [2003]. [Online] Webstroke Law. Available from: https://webstroke.co.uk/law/cases/tame-v-new-south-wales-2003 [Accessed on: 20/05/17]