Case name & citation: Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51; 83 ALJR 1168

• Court: High Court of Australia
• Judgment date: 13 October 2009
• The bench of judges: French CJ, Gummow, Hayne, Crennan and Bell JJ
• Area of law: Negligence; Duty of care; Whether injury a reasonably foreseeable consequence of installation of water main

Case Facts (Sydney Water Corporation v Turano)

On November 18, 2001, Mr. Napoleone Turano sustained fatal injuries when a eucalyptus tree fell on his car while he was driving. His wife, Mrs. Turano, and their two children were also in the vehicle and sustained injuries. Mrs. Turano filed a claim of negligence in the District Court of New South Wales against the Council of the City of Liverpool and Sydney Water Corporation, seeking damages for physical and psychological injuries as well as loss of dependency.

Mrs. Turano claimed that the tree fell due to its root system being compromised by intermittent water-logging of the soil over an extended period. This condition allowed a pathogen to enter and thrive in the roots. She argued that the installation of a water main by Sydney Water diverted drainage from a nearby culvert, causing this water-logging. It was alleged that Sydney Water was negligent for not considering the impact of the water main’s installation on local drainage.

The tree was located on the grassed area of a road reserve, with ownership vested in the Council. It fell about 20 years after the water main was installed, and during that time, there were no complaints regarding the water main or its impact on the surrounding drainage.

At Trial

The primary judge found that the Council was liable for negligence and directed a verdict in favor of Mrs. Turano. Conversely, he ruled that Sydney Water was not liable, concluding that it did not owe a duty of care to Mrs. Turano.

The Council appealed the primary judge’s ruling to the New South Wales Court of Appeal, while Mrs. Turano cross-appealed the dismissal of her claim against Sydney Water.

Court of Appeal

The Court of Appeal overturned the primary judge’s orders and issued a verdict in favor of the Council. It also upheld Mrs. Turano’s cross-appeal and directed a verdict for Mrs. Turano against Sydney Water regarding liability.

Sydney Water appealed to the High Court.

Issue in Sydney Water Corporation v Turano

The key issue was whether Sydney Water could have reasonably foreseen, back in 1981, that people near the accident location in 2001 would be affected by its actions. It was claimed that a duty of care was imposed without even addressing the question of whether such an injury was foreseeable.

High Court’s discussion

The High Court emphasized that reasonable foreseeability of injury is a key requirement for establishing a legal duty of care.

1. It was not necessary for Sydney Water to foresee the exact sequence of events leading to Mrs. Turano’s injury, but it had to be shown that in 1981, it was foreseeable that laying a water main in sand at that location posed a risk to road users. While it was foreseeable that the water main installation could affect drainage, there was no evidence that Sydney Water could have foreseen this would undermine the roots of nearby trees.

2. Importantly, the laying of the water main did not create an immediate risk to road users. The time gap between Sydney Water’s actions and Mrs. Turano’s injury was significant in determining whether a duty of care existed between them. Additionally, during this period, the tree was growing on Council-owned land, further complicating the question of Sydney Water’s responsibility.

3. Sydney Water had the authority to remove trees during its works, but since the tree didn’t obstruct the installation of the water main and the water main didn’t pose an immediate threat to the tree, removing it may not have been justified under that power. Additionally, Sydney Water was obligated to cause as little damage as possible while installing the water main. Although Sydney Water could enter land to inspect its works, there was no reason for it to do so in this case, as no issues were reported regarding the operation of the water main.

4. In assessing Sydney Water’s liability, it was important to recognize that, during the years between the installation of the water main and Mrs. Turano’s injury, the risk of the tree’s collapse was within the Council’s control, not Sydney Water’s. While the Council was unaware that the water main was installed in a sand-filled trench, it would be incorrect to label Sydney Water as having created a hidden danger with its installation, as the water main’s presence was visible. The impact on vegetation due to altered drainage should have been apparent to the landowner. Moreover, the fact that the pathogen affecting the tree was not easily observable does not justify holding Sydney Water liable for the injury caused by the tree’s failure after such a long period of time.

Conclusion (Sydney Water Corporation v Turano)

Sydney Water’s actions in laying the water main in 1981, which altered drainage flows and affected the tree, did not create a legal duty of care toward Mrs. Turano. This can be understood in two ways: first, injury to road users from the tree’s eventual collapse was not a reasonably foreseeable consequence of the water main’s installation, as concluded by the primary judge. Alternatively, since Sydney Water had no control over the risks posed by the tree in the years following the installation, there was not a sufficiently close and direct relationship between Sydney Water and Mrs. Turano.

Hence, the appeal was allowed.

References:

https://jade.io/article/118455

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Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383

• Court: High Court of Australia
• Decided on: 23 December 1970
• Judges: Barwick C.J., McTiernan, Menzies, Windeyer, and Walsh JJ.
• Area of law: Negligence; duty of care; nervous shock; foreseeability of mental harm

Mount Isa Mines Ltd v Pusey (1970) is a significant case in Australian tort law, particularly in relation to claims for nervous shock and the foreseeability of psychological harm in the workplace.

Facts of the case (Mount Isa Mines Ltd v Pusey)

The respondent (Pusey), employed as an engineer by Mount Isa Mines Ltd., witnessed a horrific incident where two electricians suffered severe burns due to a short circuit caused by mishandling a multi-meter. After hearing a loud noise, the respondent rushed to assist one of the injured men, Kuskopf, who later died from his injuries. The respondent initially continued working without issue but developed schizophrenia weeks after the incident, which was attributed to the emotional distress of witnessing the burns.

Legal Issues

The central issue was whether the employer owed a duty of care to the respondent for the mental injuries he sustained. Specifically, the question was whether Mount Isa Mines should have foreseen that an employee like Pusey might suffer psychological harm from witnessing such a traumatic event. Also, whether the specific illness (schizophrenia) suffered by him was foreseeable.

At first, the trial judge decided in favor of Pusey. This was then appealed to the Full Court of the Supreme Court of Queensland, which dismissed the appeal. Appeal was again made to the High Court.

High Court’s Findings (Chief Justic Barwick and other judges)

The court found that although the specific mental condition (schizophrenia) may have been rare, it was not necessary for the precise injury to be foreseeable. What mattered was whether some psychological injury was foreseeable due to the traumatic event.

It was held that a reasonable employer should have foreseen that employees witnessing a co-worker suffering severe burns could suffer psychological reactions, and thus the employer breached its duty of care by failing to provide proper instruction on handling the multi-meter.

The court rejected the argument that the respondent’s condition was merely the result of personal brooding over the incident. The court accepted that the trauma of witnessing the burns and assisting Kuskopf was directly related to his subsequent mental illness.

In the words of Barwick C.J.,

“There remains the submission that that mental disturbance ought not to be held to be causally related to the incident. The primary judge clearly found that, though delayed in its manifestation, the schizophrenic condition of the respondent was directly related to the effect the view of, and contact with, the burning man had had upon him. It seems to me that the appellant’s submission amounts in reality to no more than saying that the particular make-up of the respondent contributed to the resulting mental disturbance and that such an experience as he had had would not have caused a person of a different disposition to have become similarly disturbed. But that is clearly no answer to the respondent’s claim for damages. In my opinion, the primary judge’s conclusion as to the causal relationship between the incident and the respondent’s schizophrenia ought not to be disturbed.”

(at p390)

Conclusion (Mount Isa Mines Ltd v Pusey)

The High Court of Australia dismissed the appeal by Mount Isa Mines Ltd., holding that the respondent’s mental illness was a foreseeable consequence of the traumatic event, even if the specific condition (schizophrenia) was rare. Hence, the employer was liable. The decision reaffirmed that foreseeability in negligence cases does not require the precise nature of the injury to be anticipated, but rather, the general class of injury should be foreseeable.

References:

https://jade.io/article/66238

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Case citation: King v Philcox [2015] HCA 19; (2015) 255 CLR 304

• Judgement date: 10 June 2015
• The bench of judges: French CJ, Kiefel, Gageler, Keane and Nettle JJ
• High Court of Australia
• Area of law: Negligence; Duty of care; Whether mental harm to brother of person killed foreseeable?

The case of King v Philcox [2015] HCA 19 deals with the interpretation and application of Sections 33 and 53 of the Civil Liability Act 1936 (SA) regarding claims for mental harm.

Facts

On 12 April 2005, Ryan Philcox’s brother was in a car driven by Mr. King. Due to King’s negligence, the car crashed with another at an intersection of Newton/Darley and Gorge Roads in Campbelltown, Adelaide, and Philcox’s brother died trapped inside the vehicle. Philcox later drove through the intersection five times, and only on the final occasion had the accident scene been cleared. That night, he was informed that his brother had died in a traffic accident. He realized that the accident he had seen the aftermath of was the one involving his brother. He visited the accident site the next day and eventually developed major depression.

Ryan Philcox sued for compensation for his mental harm. The District Court found King owed him a duty of care but ruled that Philcox could not claim damages because he did not meet the requirements under Section 53. The Full Court overturned this, saying that King owed a duty of care and that Philcox was at the accident scene “when the accident occurred,” which allowed him to claim damages. King appealed this to the High Court.

Relevant sections

Section 33: “A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness.”

Section 53(1), however, limits who can claim damages for mental harm. It provides –

“Damages may only be awarded for mental harm if the injured person was physically injured in the accident or was present at the scene of the accident when the accident occurred; or is a parent, spouse or child of a person killed, injured or endangered in the accident.”

Contentions by the appellant

Mr. King contended that the circumstances of this case did not satisfy Section 33 and that since Philcox (the respondent) was not present at the scene of the accident when the accident occurred, he did not satisfy the necessary condition of Section 53(1).

Decision of the High Court in King v Philcox

The High Court allowed the appeal, overturning the decision of the Full Court of the Supreme Court of South Australia, and clarified the following key points:

Duty of Care (s 33): The High Court held that the appellant owed the respondent a duty of care under section 33 of the Civil Liability Act. This section requires that a reasonable person in the defendant’s position should foresee that someone in the plaintiff’s position could suffer a recognized psychiatric illness due to the defendant’s negligence. The High Court found that this requirement was satisfied.

Damages for Mental Harm (s 53): Section 53 limits the recovery of damages for mental harm unless specific criteria are met. The Court focused on whether the respondent was “present at the scene of the accident when the accident occurred,” as required by s 53(1)(a). The respondent had driven through the intersection where the accident occurred several times after the incident but was not present at the moment of the collision.

The High Court concluded that the respondent was not “present at the scene of the accident when the accident occurred” as required by s 53, which means he did not meet the statutory criteria for recovering damages for mental harm. Therefore, the respondent could not recover damages for his mental harm.

Conclusion (King v Philcox)

The High Court’s ruling emphasized that while the duty of care was owed as correctly determined by the Full Court, the statutory restrictions under s 53 of the Civil Liability Act barred recovery of damages for mental harm.

List of references:

• https://jade.io/article/396854
• https://www.hcourt.gov.au/assets/publications/judgment-summaries/2015/hca-19-2015-06-10.pdf

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Case name & citation: Michael David Jaensch v Vicki Lorraine Coffey [1984] HCA 52; (1984) 155 CLR 549

• Court: High Court of Australia
• Judgment date: 20 August 1984
• The bench of judges: Gibbs C.J., Murphy, Brennan, Deane and Dawson JJ.
• Area of law: Duty of care; Negligence; Nervous shock; Foreseeability of injury

What is the case about?

Jaensch v Coffey [1984] HCA 52 is a significant Australian High Court case concerning the principles of nervous shock (also known as psychiatric injury) and the circumstances under which a person can claim damages for such an injury.

This case holds great significance as it set a precedent for situations where courts award damages to plaintiffs for psychiatric injury suffered due to a mishap involving someone with whom they have a close relationship. Courts have shown empathy in such cases.

Background of the Case (Jaensch v Coffey)

Mrs. Coffey, the plaintiff, was the wife of a police officer who was involved in a serious motor vehicle accident caused by the negligence of the defendant, Jaensch. After learning of the accident, Mrs. Coffey rushed to the hospital where her husband was taken. She witnessed the aftermath of the accident, including the distressing medical treatment he received. As a result, Mrs. Coffey suffered from nervous shock, leading her to sue Jaensch for the psychiatric injury she sustained.

Legal Issue

The primary legal issue in the case was whether Mrs. Coffey could recover damages for nervous shock caused by witnessing the aftermath of an accident, even though she did not witness the accident itself.

Decision in Jaensch v Coffey

The High Court of Australia ruled in favour of Mrs. Coffey, holding that she could recover damages for the psychiatric injury she suffered. The Court expanded the scope of liability for nervous shock, stating that a person could recover for psychiatric injury even if they did not witness the accident directly, as long as the injury was a foreseeable consequence of the defendant’s negligence.

Key Principles

Foreseeability: The Court emphasized that for a claim of nervous shock to succeed, it must be reasonably foreseeable that a person in the plaintiff’s position could suffer psychiatric injury as a result of the defendant’s actions.

Proximity: The concept of proximity was crucial, referring to the relationship between the parties and the events leading to the injury. In this case, the proximity was established by the relationship between Mrs. Coffey and her husband and the direct aftermath she witnessed.

Direct Perception: The Court held that it was not necessary for the plaintiff to witness the accident itself; the shock could result from witnessing the immediate aftermath, such as seeing the injured party in the hospital.

Quotes from the case

“Mrs Coffey’s presence at the hospital was the result of the defendant’s infliction of injuries on her husband. It was reasonably foreseeable that Mrs Coffey would be at the hospital to observe Allan and what happened to him that night. On the assumption that Mrs Coffey was of a normal standard of susceptibility (“of normal fortitude”, as Bollen J. put it), was it reasonably foreseeable that what she might see and hear that night would be such an affront or insult to her mind that she might suffer a psychiatric illness? Bollen J. answered that question in Mrs Coffey’s favour. It is a question of fact and, although an affirmative answer to that question was not beyond argument, the answer given by Bollen J. makes good sense and I do not think it should be disturbed.”

(By Brennan J.)

“In the present case there was a very close relationship, both legal and actual, between the respondent and her husband. She was notified of the accident, and went to the hospital, as soon as practicable on the evening when it occurred. She personally perceived the aftermath of the accident, although not at the scene but at the hospital. The fact that, in addition, she was informed by those on duty at the hospital of her husband’s condition cannot in my opinion defeat her claim. She was, in my opinion, a “neighbour” of the appellant within Lord Atkin’s principle; it was foreseeable that a person in her position would suffer nervous shock, and there is no reason of policy why her claim should not succeed.”

(By Gibbs C.J.)

Significance (Jaensch v Coffey)

Jaensch v Coffey (1984) is a landmark case in Australian tort law, as it broadened the scope for claims of nervous shock. It established that liability for psychiatric injury could extend beyond those who directly witness a traumatic event, provided that the injury is a foreseeable consequence of the defendant’s negligence and there is sufficient proximity between the events and the claimant.

References:

• https://jade.io/article/67134

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Romeo v Conservation Commission of the Northern Territory (1998) is a widely recognized case from Australia. It concerns a negligence claim against the Conservation Commission for failing to put warning signs to warn people of the dangers of a cliff.

Given below are the case details and decision:

Facts of the case (Romeo v Conservation Commission of the Northern Territory)

The plaintiff, Nadia Romeo, a sixteen-year-old girl met with an accident on a clear, dark night in April 1987 in the Casuarina Coastal Reserve near Darwin. The Reserve was a large natural area open for public recreation, managed by the respondent Conservation Commission.

She and her friend had consumed alcohol and were sitting on a low log fence near the Dripstone Cliffs car park, which was situated on a cliff-top overlooking Casuarina Beach. At some point, both girls fell over the edge of the cliff onto the beach below. The accident resulted in injuries, particularly for Nadia who became paraplegic. This kind of accident had never happened at the Reserve before.

The plaintiff filed a lawsuit against the Commission alleging negligence. She contended that the respondent should have installed adequate lighting, given warnings about the cliff’s presence, or erected a fence or barrier at the cliff’s edge.

Issue

Was the Commission liable for negligence?

Judgment of the Court in Romeo v Conservation Commission

The plaintiff’s claim was dismissed both at trial and on appeal to the Northern Territory Court of Appeal. It was agreed that the Commission was not liable.

The case was then heard in the High Court.

The majority held that the Conservation Commission, by virtue of its powers vested upon it as a public authority, had a duty of care towards the visitors of the natural reserve. It could reasonably foresee that a visitor might occasionally fall off the cliff. However, the Court found that there was no breach of such duty in failing to erect barriers at the cliff’s edge, provide adequate lighting, or warn about the dangers of the cliff.

The Conservation Commission was not obligated to guarantee that there would be no accidents; it just had to take reasonable steps. Even though the risk of someone falling from the cliff was foreseeable, it existed only when people ignored the obvious danger, making accidents highly unlikely. The cliff danger was apparent and preventable through reasonable care by the visitors themselves. Competent individuals should take reasonable care for their own safety, at least with regard to obvious risks.

Further, the judges held that it would be impractical to fence off the specific cliff as it would then necessitate fencing all similar cliffs in the Northern Territory under the Commission’s control to prevent similar risks. This may prove to be unreasonably burdensome.

When the cost of preventive measures is very high for a risk that is improbable, the defendant is less likely to be found liable for negligence. The Court refused to establish negligence on the basis that the risk was obvious and small and that the required precautions to avoid the risk would have placed undue pressure on the limited resources of public authorities. These factors outweighed the seriousness of the harm of someone falling off the cliff and the defendant was justified to disregard the foreseeable risk of harm to someone in the plaintiff’s situation.

Quotes from the case

Kirby J said:

“Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just …”

List of references:

• https://s3.studentvip.com.au/notes/4066-sample.pdf
• http://classic.austlii.edu.au/au/journals/NewcLawRw/1998/16.pdf
• https://static1.squarespace.com/static/5bc7e1cd809d8e70de3b27b3/t/5eb7f1dd784e2246464ea180/1589113311112/torts_law_case_notes_sample_v1.0.pdf

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Doubleday v Kelly [2005] is a tort law case concerning the foreseeability of risk and duty of care.

Given below are the case details:

Facts of the case (Doubleday v Kelly)

The plaintiff, a seven-year-old girl, was staying at the defendant’s house. While staying there, she got injured when she attempted to roller skate on a trampoline.

Damages were claimed from the defendant for breach of duty of care.

In the District Court, the case was heard in favor of the plaintiff and was then appealed to the Court of Appeal.

Issue

The question that arose was whether the defendant owed a duty of care towards the plaintiff and whether that duty was breached when the plaintiff was allowed to use the trampoline unsupervised.

Was the risk of injury foreseeable?

Arguments

The defendant argued that it was not foreseeable that the girl would attempt to roller skate on the trampoline. Also, the children had been warned not to go on it unsupervised.

Judgment of the Court of Appeal

The Court emphasized that to assess whether a risk is foreseeable, consideration must be given to foresight in more general terms of risk of injury rather than the actual events as they occur. Therefore, the specific events that led to the plaintiff’s injury (roller skating on a trampoline) were not the primary thing to consider for analyzing foreseeability.  Instead, the Court considered whether it was foreseeable in more general terms that a child might use the trampoline in an incompetent manner and thereby risk injury.

The Court found that it was foreseeable that a child might use the trampoline inappropriately and injure themselves if not supervised. This was the key point in the case because it established that the defendant had a duty of care towards the plaintiff.

Further, it was held that merely giving a warning against using the trampoline without supervision did not adequately discharge the duty. The Court stated that turning the trampoline over so that the jumping surface was on the ground was rather an effective way of preventing children from using it without supervision.

Conclusion (Doubleday v Kelly)

While it may not have been specifically foreseeable that the child would attempt to roller skate on the trampoline, it was reasonably foreseeable that children might use the trampoline unsupervised, which inherently involved a risk of injury. Thus, the risk of injury was generally foreseeable, and a reasonable person would have taken steps to avoid this risk.

List of references:

• https://s3.studentvip.com.au/notes/1728-sample.pdf
• https://media.studylast.com/2020/12/LAWS1012-Torts-Negligence-scaffold-p.pdf
• https://en-au.oxbridgenotes.com/revision_notes/law-university-of-new-south-wales-torts-law/samples/breach-of-duty

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