Psychiatric claims still perplex
Despite two High Court decisions in recent years, the issue of so-called “pure” psychiatric injury (that is, a psychiatric condition unrelated to any physical injury to the person who develops it) remains a source of contention in the courts. A recent decision of the Victorian Court of Appeal highlights some of the issues.
Mr Veenstra was discovered alone in a parked car by two police officers early on 22 August 1999. The officers noted what appeared to be tubing running from the car’s exhaust to the cabin. When they approached, they found Mr Veenstra writing. The car was not running. He appeared to be depressed but not mentally ill, and told the officers he had contemplated doing “something stupid”. The officers offered to contact his doctor or family, but he declined, saying he would see his own doctor and that he wanted to return home to talk things over with his wife. He then removed the tubing from the vehicle.
He in fact returned home; but later that day was found dead having committed suicide by asphyxiation in his vehicle at his home.
Mrs Veenstra sued the officers and the State of Victoria alleging she had developed a psychiatric illness as a result of her husband’s suicide. She alleged that they owed him a duty to prevent him from harming himself, and a duty to her to avoid foreseeable psychiatric injury that would arise from such self-harm. At first instance, the trial judge found that the alleged duties were not owed, and that the claim therefore failed. Mrs Veenstra appealed.
In a split 2-1 decision, the Court of Appeal allowed the appeal. Delivering the leading judgment for the majority, Chief Justice Warren noted that Victoria’s Mental Health Act specifically addressed the situation in which Mr Veenstra was found. It empowered the officers to either take him to a hospital, or have a medical practitioner attend at the scene.
They had not exercised either of those options.
While the existence of that statutory power was not determinative of the issue of duty of care, it was one factor to be weighed up. Chief Justice Warren noted that in a “novel” case such as this, the test for whether a duty of care was owed was “multi factoral”. She found that the following factors pointed to a duty of care being owed by the officers to Mr Veenstra:
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It was reasonably foreseeable that he might commit suicide if not given medical treatment as contemplated by the Act;
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The officers had the power to protect a specific class of persons of which Mr Veenstra was a part;
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Mr Veenstra was in a position of particular vulnerability, in that he could not be expected to safeguard himself;
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There was an identifiable risk of harm if the statutory power was not exercised;
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To impose a duty was not impinging on any core policy-making or quasi legislative functions of the officers; it affected their operational functions only; and
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There were no overriding policy considerations excluding the imposition of a duty.
It followed then that a duty was owed to Mr Veenstra. In order to succeed however, Mrs Veenstra had to demonstrate that a duty was owed to her as well. Chief Justice Warren referred to the High Court’s decision in Annetts, and found that the class of persons who could be identified as being owed a duty to prevent psychiatric injury were “those who should be in the contemplation of the person whose acts or omissions are in question as persons closely and directly affected”.
As the deceased’s wife, Mrs Veenstra should have been in the officers’ “contemplation” as being someone who would be “closely and directly affected” by a failure to prevent the deceased from harming himself.
President Maxwell agreed with the Chief Justice’s conclusions, albeit with some differences in “emphasis”. They ordered a re-trial of the case.
Justice Chernov however dissented and would not have imposed any duty or liability on the officers.
Kirkland-Veenstra v Stuart [2008] VSCA 32
Footing the bill
Since the High Court’s ruling in Ghantous v Hawkesbury City Council in 2001, plaintiffs alleging negligence in relation to imperfections in footpaths have faced a difficult task; as a Queensland man recently discovered.
John Ellis was walking home after an evening out, when he tripped on a raised brick paver outside a Lifeline centre operated by the Uniting Church. The paver was part of a driveway running from the property line to the gutter. He sued the Uniting Church in relation to his injuries.
Although Mr Ellis had been drinking, it was found that was not a cause of the injury. He also conceded in his evidence that the paver was protruding about an inch (2.5cm) above the surface of the footpath, and that he had seen it on five or six occasions prior to the fall.
Acting Justice Skoein noted the High Court’s decisions in Ghantous and in the 2005 case of Neindorf v Junkovic. He found that Mr Ellis’s case, like those cases, dealt with a danger that was “minor, obvious and of a kind encountered unexceptionally on suburban footpaths.” While he noted that the Uniting Church could have taken steps to remove the danger simply by re-laying the paver, he was not convinced that it was under any duty to do so.
He also referred to the direction from Neindorf not to judge the case with hindsight; but rather to decide what would have been reasonable for the occupier to do at the time. Given that the risk posed by the paver was both minor and also obvious to a person taking reasonable care for their own safety, it was not unreasonable for the Uniting Church to have done nothing.
It followed that Mr Ellis’s claim failed.
Ellis v Uniting Church in Australia Property Trust [2008] QSC 74
Median strip is not a footpath
A slightly different case to the usual types of pedestrian cases commonly seen in the courts is provided by a decision of the NSW Court of Appeal.
The plaintiff, Ms Chandler, was driving on the outskirts of Wagga Wagga when her car broke down. It was dark at the time, and she began walking on the side of the Sturt Highway towards a service station. After a passing truck came very close to her, she decided to cross to the median strip. As she was walking along the median strip, she put her foot in a drainage slot on the median strip, causing her to fall and injure her knee. The Road and Traffic Authority (RTA) was the body having control of the Sturt Highway.
At first instance in the District Court, Ms Chandler succeeded and was found not to be contributorily negligent. The RTA appealed from that decision.
The Court of Appeal’s decision explored the sometimes hazy distinction between cases where a defendant did not owe a duty of care at all, and those where it owed a duty but did not breach it.
Indeed, Justice Basten noted that there was a “fine line” between a conclusion that a defendant owed a plaintiff no duty in particular circumstances and a conclusion that a duty was owed but was not breached because the defendant was not, in the circumstances, required in the exercise of reasonable care to take the steps for which the plaintiff contended. The preferred approach will depend on the level of generality at which the duty is identified.
Justice Basten, delivering the leading judgment, found that the RTA had a duty to take reasonable steps “to remove a risk of injury which may arise for a pedestrian taking reasonable care for his or her own safety”. That test was better described as referring to a class of reasonable road users, rather than a hypothetical individual. Nonetheless, there might be cases in which the pedestrian’s conduct would be relevant to an assessment of the duty, because it would reveal how a reasonable road user would behave in particular circumstances. However, he thought that relevance was likely to be limited.
In the circumstances, the median strip was not intended to be used as a footpath. Its purpose was to separate the lanes of traffic on the highway. There were no pedestrian crossings or lights, which again suggested that it was not intended for pedestrian use.
It followed that the RTA had no duty to maintain it in a proper condition for use as a footway at night.
As is common in road authority cases, the RTA argued that, if it were found negligent in the circumstances of this case, it would be put to the expense of covering numerous other drainage slots across the State. That argument received a sympathetic ear from the Court of Appeal. Considering the purpose of the drainage duct and median strip, the cost of covering the duct and similar ducts elsewhere in the State, the likelihood of the risk eventuating and the seriousness of the consequences if the risk did eventuate, the Court found that Ms Chandler had not established that the failure of the RTA to cover the drainage duct was unreasonable. She therefore failed to establish a breach of any duty of care which may have been owed to her by the RTA.
Roads and Traffic Authority of NSW v Chandler [2008] NSWCA 64
Same facts, different claims, different outcomes
The Supreme Court of Queensland has considered the often-delicate position of different insurers dealing with separate claims arising out of the same accident.
The accident in question was a boating collision. Following the incident, the owner of the boat being driven by Mr Smith (a company) sued Mr Balnaves for property damage to the company’s vessel. That matter was handled by Mr Balnaves’ property damage insurer. No defence was filed in the property damage proceedings, and the insurer agreed to judgment against Mr Balnaves for the amount claimed by the company.
Subsequently, Mr Balnaves sued Mr Smith and the company for damages for personal injury. Mr Smith and the company argued that the claim must fail because Mr Balnaves was estopped from denying that the collision was his sole fault.
The matter came before Justice McMurdo on an application to determine the estoppel point as a separate issue in the proceedings. He considered that the critical factor in determining whether there was an estoppel was the fact that no defence had been filed in the earlier proceedings. That meant that Mr Balnaves had never pleaded contributory negligence (i.e. that Mr Smith had been wholly or partly to blame for the collision). As a result, the judgment in those proceedings could not have decided the question of contributory negligence or apportionment between the parties – as it was simply never an issue.
It followed that as the judgment had not decided the issue of whether there had been any negligence on the part of Mr Smith in the collision, Mr Balnaves was not prevented from alleging negligence in the later action.
Justice McMurdo also examined the settlement agreement that was reached in the property damage proceedings. He noted that Mr Balnaves’ solicitors in that matter were retained
by a property damage insurer, and that the other party knew that was the case. In addition, the terms of the agreement related specifically to “settlement of the property damage claim”. Justice McMurdo found that wording indicated that the settlement being agreed was separate and distinct from any personal injury claim.
In the end result, Mr Balnaves was entitled to pursue his claim for personal injuries.
Balnaves v Smith [2008] QSC 76
Tripping the light fantastic
The nature of the burden of proof facing personal injury plaintiffs in more “unusual” cases has been brought into sharp focus by a decision of the NSW Court of Appeal.
The plaintiff, Ms Wolfenden, was performing in a high school performing arts challenge at the Wonderland theme park operated by the defendant. The competition was being conducted on an open-air stage; but the situation changed when it began to rain. The performers were moved from the stage to an area of “astro-turf” matting that was partially protected from the elements. An area approximately 8m x 10m was marked off to act as a stage area. Ms Wolfenden’s group was the second to use the area. Although the matting itself was not slippery, the black tape used to mark out the area was. While performing a high kick near the black tape, she fell and was injured.
The trial judge found against Ms Wolfenden on the issue of causation. She appealed to the Court of Appeal. In three concurring judgments, the members of the court noted that there was really only one issue to be decided – whether Ms Wolfenden had slipped on the black tape, or whether she had fallen due to another cause.
While it was agreed that the black tape was slippery when wet, evidence was called to show that the high kick was itself a dangerous manoeuvre, accounting for some 12% of dancers’ injuries.
Justice Giles noted that the question was a narrow one. While there were some factors supporting an inference that Ms Wolfenden may have slipped on the black tape, they “did not rise above equal probability with falling because in executing an inherently risky high kick the appellant simply lost her footing on the matting”. Since Ms Wolfenden bore the onus of proof that it was more likely than not that she had slipped on the black tape, the appeal was dismissed.
Wolfenden v International Theme Park Pty Ltd (trading as Wonderland) & Anor [2008] NSWCA 78
Cold comfort
The provisions of the Trade Practices Act allowing consumers to claim for injuries caused by defective products have proved a boon for plaintiffs. There are however still potential pitfalls in the legislation, as a recent decision of the NSW Court of Appeal illustrates.
The plaintiff, Mr Spittles, was cleaning his Maytag brand refrigerator (which he had bought from an electrical retailer) when he cut his finger on a razor-like burr along the bottom of one of the panels.
The fridge was one of a batch that had been manufactured in the United States and imported into Australia by Maytag. As delivered from the US, the fridges were black. To improve their marketability, Maytag had stainless steel panels fitted to them. The defendant, Michael’s Appliance Services (MAS), was contracted by Maytag to fix the panels.
The evidence established that MAS were paid only for their labour. They did not acquire any title or interest in the fridges; nor did they supply or have any title to the stainless steel panels. The question then was whether MAS had “supplied” either the fridge or the panels within the meaning of s.75AD of the Trade Practices Act.
The trial judge found that there had been no “supply” within the meaning of the Act, and dismissed Mr Spittles’ claim against MAS. He appealed to the Court of Appeal.
Delivering the Court’s unanimous judgment, Justice Handley noted that the definition of “supply” in the Trade Practices Act was inclusive, and Mr Spittles was entitled to rely on the usual meaning of the term. Justice Handley found however that the meaning of “supply” referred to a process of supply and acquisition. In other words, a “supply” was a bilateral process involving two parties.
The difficulty for Mr Spittles was that there had been no “supply” by MAS. They had never acquired title to either the fridges or the panels; nor had they even obtained possession of them. Possession at all times rested with Maytag. MAS simply did its work and left the refrigerator where it was.
Accordingly, it did not “supply” the refrigerator within the meaning of s.75AD of the Trade Practices Act.
Spittles v Michael's Appliance Services Pty Ltd & Ors [2008] NSWCA 76
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