Two matters (the first, Tames, an appeal from the Court of Appeal of New South Wales; the second, Annetts, an application for special leave to appeal against a decision of the Full Court of the Supreme Court of Western Australia) were heard together.
The elements common to both were that they concerned the tort of negligence, and the harm suffered by the plaintiffs was psychiatric injury unassociated with any other form of injury to person or property resulting from the allegedly tortious conduct.
- a police officer made a clerical error in filling out a report about a traffic accident erroneously completed the accident report that Tame’s blood alcohol level was 0.14 (legal limit 0.05) (which was actually the level of the other driver).
- He had no contact with Tame, and made no communication to her.
- The information was communicated to her insurance company.
- The police later realised their mistake, corrected it, and issued an apology.
- When it took some time for Tame to receive her insurance, she developed an obsession about the incorrect information, think everyone thought she was drunk at the time of the accident, which led to psychiatric illness.
- She sued NSW police for negligence.
- The alleged negligence concerned an employer who failed to provide an employee with a safe system of work.
- The employee was a minor aged 16.
- In August 1986 his parents, the applicants, had agreed to permit him to work for the respondent, in a remote part of outback Australia, on the faith of assurances that he would be well cared for.
- In December 1986, he went missing in circumstances where it was clear that he was in grave danger.
- When Mr Annetts was informed of this by the police, over the telephone, he collapsed.
- There was a prolonged search for the boy, in which the applicants took some part.
- His bloodstained hat was found in January 1987.
- In April 1987 the body of the boy was found in the desert. He had died of dehydration, exhaustion and hypothermia. The applicants were informed by telephone.
- Subsequently Mr Annetts was shown a photograph of the skeleton which he identified as that of his son.
- The parents suffered psychiatric injury.
By a majority, the High Court rejected the notion that the normal fortitude of a plaintiff needs to be established as a separate independent test of liability. It was however accepted that the notion of ‘ordinary fortitude’ should have continuing relevance in relation to whether or not psychiatric injury is reasonably foreseeable. (See Gummow & Kirby JJ -. Gaudron J at , Gleeson CJ at .) The normal fortitude test was however strongly supported by McHugh J - and - and Hayne J -. Callinan J also supported it at .
Per Kirby and Gummow JJ at  & :
…it does not follow that it is a pre-condition to recovery in any action for negligently inflicted psychiatric harm that the plaintiff be a person of “normal” emotional or psychological fortitude or, if peculiarly susceptible, that the defendant know or ought to have known of that susceptibility. …[T]he notion of a “normal” emotional susceptibility, in a population of diverse susceptibilities, is imprecise and artificial. The imprecision in the concept renders it inappropriate as an absolute bar to recovery. Windeyer J [has] also pointed out that the contrary view, with its attention to “normal fortitude” as a condition of liability, did not stand well with the so-called “egg-shell skull” rule in relation to the assessment of damages for physical harm…
…the concept of “normal fortitude” should not distract attention from the central inquiry, which is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful…
By a majority the High Court rejected the proposition that only psychiatric injury suffered as a result of a ‘nervous shock’ creates an entitlement to compensation. See Gummow and Kirby JJ -, supported by Gleeson CJ , Gaudron J  and Hayne J -. McHugh J  did not find it necessary to deal with the issue. Callinan J  would retain the requirement.
Gleeson CJ at  said:
The process by which the applicants became aware of their son’s disappearance, and then his death, was agonizingly protracted, rather than sudden. And the death by exhaustion and starvation of someone lost in the desert is not an ‘event’ or a ‘phenomenon’ likely to have many witnesses. But a rigid distinction between psychiatric injury suffered by parents in those circumstances, and similar injury suffered by parents who see their son being run down by a motor car, is indefensible.
By a majority, the rule that a person must witness at the scene of an accident the victim being harmed or killed was also rejected. See Gummow and Kirby JJ -, supported by Gleeson CJ , Gaudron J  and Hayne J -. (McHugh J did not address the issue. Callinan J  endorsed the direct perception requirement).
Gaudron J at  said:
To treat those who directly perceive some distressing phenomenon or its aftermath and those identified in Jaensch v Coffey as the only persons who may recover for negligently caused psychiatric harm is, as Gummow and Kirby JJ point out, productive of anomalous and illogical consequences. More fundamentally, it is to limit the categories of possible claimants other than in conformity with the principle recognised in Donoghue v Stevenson, namely, that a duty of care is owed to those who should be in the contemplation of the person whose acts or omissions are in question as persons closely and directly affected by his or her acts. Accordingly, the “direct perception rule” is not and cannot be determinative of those who may claim in negligence for pure psychiatric injury.
Other issues that were considered
- the relationships between the primary victim of the negligence and the plaintiff, the plaintifff and the defendant
- the physical and temporal distance of the plaintiff from the distressing event, and
- the manner in which they became aware of the distressing event but again in the sense of finding reflection in whether or not the prospect of the plaintiff suffering a psychiatric injury was reasonably foreseeable (Gleeson CJ at , Gaudron J at , Gummow and Kirby JJ at ).
The High Court’s decision
The High Court unanimously dismissed Mrs Tame’s action as
- the police officer who had made a mistake on the accident report form could not have reasonably foreseen that Mrs Tame would suffer from a psychiatric injury as a result of that error.
- (other reasons for denying the claim included not creating conflicting duties, and coherence of the law).
In Annetts, the High Court unanimously upheld the Annetts’ claim, the majority finding that their psychiatric injury was a reasonably foreseeable consequence of the negligence of Australian Stations – and they were entitled to compensation.