Book Review

Mullany and Handfords Tort Liability for Psychiatric Damage, 2nd edition 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 common law world to devote itself exclusively to tortious liability for the causation of psychiatric damage. The book takes in liability in intentional tort and negligence and also surveys redress available under criminal injuries compensation schemes. Obvious merits include its coverage, exhaustive research and accurate descriptions of cases. However, a number of questions arise. A rst question concerns the kind of book this is supposed to be. On the one 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. This is the product of admirable effort on the part of the author. The practitioner reader might be perturbed by the number of rst-instance and interlocutory cases through which he or she is obliged to tread, but he or she will never be short of an analogy to wave in front of a judge. On the other hand, there is more than a hint of the polemical in the commentaries upon the cases. Indeed, this is a crusading book, in which the author attempts to mesmerise crusty conservatives with dictum after dictum pointing towards ever-more liability. The author takes it as obvious that those who suffer psychiatric damage at the hands of another deserve compensation and sees little need to delve into the practical problems that arise. The concern for victims and the acute awareness by the author of the challenges that they face is apparent throughout the book. But, as will be demonstrated, the arguments in favour of ever-more liability are perceptibly thin. In the eyes of the author, the problems of attributing responsibility for psychiatric damage in secondary victim cases lie only in determining the factual issues of foreseeability of harm (never properly-analysed) and causation (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 be superuous, the author asserting that the causation of mere distress should be enough in cases of egregious negligence (p 81). The minimalist, causation-focused nature of the authors views on liability is captured well in the following statement:
Once a causal link between the defendants actions and the plaintiffs injury is proved, the precise nature of the injury-producing phenomenon is immaterial and should be recognised as such. Not only where psychiatric damage results from a gradual accrual of shock, but also where mental distress (which on one view rightly does not sound in damages) leads to or transmutes into recognised psychiatric damage, that should be compensable (p 311).

This kind of nonchalance about liability rules is surprising, given that more than 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 the contours of liability as between classes of person. These contours are dened by the recognition or denial of legal relationships between classes. Duty is an inherently normative element of negligence, in the sense that courts have a responsibility to determine the overall appropriateness of the imposition of legal obligations: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337 at [242] per Kirby J; A Mason, Policy Considerations in A Blackshield, M Coper and G Williams (Eds), The Oxford Companion to the High Court of Australia, OUP, South Melbourne, 2001, p 535. Many of the considerations 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, Oxford and New York, 1983, p 22. In the view of the author, the courts otherwise-inexplicable hesitation to expand liability for negligently-inicted psychiatric damage (particularly in the United Kingdom) derives from something approaching ignorance. People have always feared what they do not understand and been sceptical of that which they cannot verify by sight (p 734). It is as though judges deciding cases in Victorian-era courtrooms might be trapped in a time-warp populated by horses and buggies and pregnant shwives. The assumption is that, once properly-versed in the mechanisms by which psychiatric injury or distress is caused, 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 the screening process, this is an illegitimate basis for restricting the right to redress 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 boundary stone has not found its nal resting place (p 739). The chapters on the limiting factors in secondary victim cases follow a distinct pattern. They begin with discussion of the oh-so-quaint historical background to the limitation rule in question, point to cases in which the rule has caused otherwise meritorious claims to fail, before exposing the fallacy in 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 directed to authority from the Isle of Man in favour of abandoning the sudden shock requirement (Ward v Ballaughton Estate (1975) Ltd, discussed at p 308). All of this might have seemed like the harmless musings of an academic trapped in an ivory tower. Yet the musings of the author have been considerably 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 authority on liability for negligently-caused psychiatric damage in secondary victim cases. The exuberance of the High Court has been partly-contained by recent legislation (more of which in a moment); the exuberance evident in the rst edition of this book has not been contained in the second. Consider the observation that liability should be extended to cases involving near-misses. The author asserts that:

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there seems no logical or sound policy reason why recovery should be refused where the plaintiff suffers shock and resulting mental damage not from the perception of the death, injury or imperilment of a loved one or of the plaintiffs own injuries or peril, but from the realisation of what might have happened to him or her (p 368).

With respect to psychiatric damage developing upon witnessing destruction or damage to property (rather than person), the author states that if nervous harm be foreseeable there seems no reason why compensation should not be had for injury resulting from damage (or anticipated damage) to the property of a family member, friend or even a bystander (p 627). He also supports the creation of liability for the negligent communication of true news or information which is communicated in a way that is callous or distressing, even where there is no suggestion of an intention to injure (p 644). The concepts of reasonable foreseeability and causation are left as the only impediments to compensation for bad manners. What is missing from the account of liability in this book is consideration of the limitations of the tort system as a means of compensation and of the need for justication in the development of liability rules which, after all, have implications not just for the payee but also for the payer of damages awards: see, generally, P Cane, Responsibility in Law and Morality, Hart, Oxford, 2002, esp pp 4950; R A Duff, Who is Responsible, For What, To Whom? (2005) 2 Ohio State Criminal LJ 441 at 442. At a time when legislatures across Australia were attending to the allegedly-destabilising inuence of expansionary negligence decisions on many segments of society by resort to a legislative program unparalleled in the common law world, the author has remained impervious to the crash of tort laws Tower of Babel. The book contains neither a theory of wrongdoing (see J L Coleman, Risks and Wrongs, Cambridge University Press, Cambridge, 1992, esp pp 3312) nor an account of the fundamental interests that are at stake in decisions to impose liability, which include, for example, the diminution of the defendants autonomy that accompanies an adverse judgment and order for payment of damages (see S R Perry, Risk, Harm and Responsibility in D G Owen (Ed), Philosophical Foundations of Tort Law, Clarendon Press, Oxford, 1995, p 321). There is little concern about laying nancial waste to the lives of those who fall below a notional standard of care constructed ex post by a court far-removed from the scene of a momentary lapse of concentration (see J Waldron, Moments of Carelessness and Massive Loss, ibid, p 387). The problems of limiting liability have been resolved differently in the different branches of negligence. To over-simplify for a moment, we see that liability for the negligent iniction of physical harm might be justied by the fact of the defendants substantial encroachment on the plaintiffs autonomy and by some minimal ability to avoid harm by way of foreseeability; and that liability for a negligent misstatement might be justied by the skilled status of the defendant, who gives advice for a particular purpose and with the knowledge that losses are likely to follow from inaccuracy. But justication for the imposition of liability for negligently-inicted psychiatric damage scarcely follows from the presence of foreseeability and causation alone. And it is with the fact of torts two-sided relationship (including a person injured and a person causally responsible) that courts have struggled. It has not proven easy to isolate the reasons in justice for imposing such liability. What

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the author is able to demonstrate by reference to cases such as those on the US zone of danger rule is the difficulty of accepting limitations based solely upon the impact that the defendant has had upon the physical environment in which the secondary victim is situated. But the author does not offer any convincing alternative to this attempt at both limitation and justication. Legislatures in Australia arguably have done only marginally better in secondary victim cases, restricting claims to those where the plaintiff is either at the scene or has some relationship to the primary victim who is killed or injured (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 many issues relating to negligence causing psychiatric damage in Australia. These statutes, which differ in their detail from state to state, are covered in just ve pages (out of a total of 761), the last sentence of the relevant section reading: Further comment on the disunited and unsatisfactory state of Australian law following the rush to adopt civil liability legislation seems superuous (p 432). In fact, what seems superuous is much of the discussion outside the ve pages on the new statute law. A 12-page chapter, for example, is devoted to discussion of UK law reform proposals that have not been adopted (see now United Kingdom, Department for Constitutional Affairs, The Law on Damages, Consultation Paper CP 9/07, 2007, <http://www.dca.gov.uk/consult/damages/cp0907.htm> (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 to Tame v New South Wales) and proposals to reform that law by a move to an open-slather liability regime. Of greater interest, at least to the academic, are the chapters which explore new frontiers of common law liability for psychiatric damage not covered by statute. These include Ch 3 on the Medical Perspective, Ch 26 on Bad News and Ch 27 on Fear for the Future. Although the reader might disagree with the viewpoints of the author, it is evident from the discussion that some truly fascinating issues are likely to exercise courts in the future. For Antipodean 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 the cases are quite unbelievable. In particular, readers ought to look out for Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C), involving a car containing two children perched precariously on the side of a bridge, two collisions, an assault and a heart attack (p 626). Unfortunately, however, there is much that is unsatisfactory in the second edition of this book. Many of the concerns raised in this review were mentioned 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 very far at all. Christian Witting Associate Professor, Law School The University of Melbourne.