Whilst this recent Court of Appeal decision (Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21) is not a medical negligence claim, it highlights the importance of considering whether a duty of care is owed in nervous shock or mental harm cases. It is our experience that mental harm claims arising from medical treatment are increasing in frequency and quantum.
When assessing mental harm claims it is important to have regard to whether a duty of care not to cause mental harm was owed to the plaintiff and whether the plaintiff has suffered a recognised psychiatric injury as a result of the defendant’s negligence. In claims where the plaintiff alleges to have suffered mental harm as a result of another person being killed, injured or put in peril, limitations are placed on recovering damages for mental harm depending on the relationship to the ‘victim’ and what was witnessed in relation to the ‘victim’s’ peril. This decision involves a claim for mental harm suffered by the plaintiff as a result of what was done to him as opposed to what he witnessed occurring to another person.
In a 2:1 decision, the Court of Appeal concluded Optus did not owe a duty not to cause mental harm to the plaintiff. The plaintiff was employed by a labour hire company who supplied services to Optus, and was attending a training course for call operators at Optus when another attendee attempted to throw him off a fourth floor balcony in an attempt to kill him. This led to the plaintiff suffering chronic severe PTSD. At first instance the plaintiff recovered $3.9 million in damages as the Court concluded that Optus owed him a duty of care to take reasonable actions to protect him from the criminal acts of others and that the mental harm in these circumstances, was reasonably foreseeable.
The Court of Appeal overturned the decision on the basis that Optus did not owe a duty of care to prevent mental harm in the plaintiff. The Court of Appeal concluded that the severity of the assault on the plaintiff and resultant psychiatric illness, was not foreseeable and therefore under section 32 of the Civil Liability Act, Optus did not owe the plaintiff a duty of care to prevent mental harm. In reaching this decision the Court of Appeal had regard to the fact that the trial judge had not made any finding that Optus employees knew, or ought to have known, of the possibility that the attendee wanted to kill or injure the plaintiff causing a person of normal fortitude to suffer a recognised psychiatric illness. Without such a finding the Court of Appeal concluded that the plaintiff had failed to establish that a duty was owed. As no duty of care was owed it was unnecessary for the majority of the Court of Appeal to consider breach of duty, causation or damages. Of interest in relation to damages assessed in Gleeson JA’s dissenting judgment, is the fact that he did not disturb the award for non-economic loss, assessed at 75% of a most extreme case by the trial judge, despite this allowance being challenged on appeal.
This decision highlights the importance of giving proper consideration to the basic fundamentals in mental harm claims. When consideration was given to the matters which are required to be satisfied under the Civil Liability Act, this was not a matter in which a duty was owed and therefore the plaintiff failed in his case against Optus notwithstanding the fact that there was an attempt to murder him and this resulted in him suffering a severe recognised psychiatric illness.
Post by Karen Kumar