Reported Decision : [2001] Aust Torts Reports 81-619 New South Wales Court of Appeal CITATION : AMP v RTA & Anor; RTA v AMP & Anor [2001] NSWCA 186 FILE NUMBER(S) : CA 40319/00; 40399/00 HEARING DATE(S) : 16/05/01 JUDGMENT DATE : 2 August 2001 AMP General Insurance Ltd (Appellant CA 40319/00; First Respondent CA 40399/00) PARTIES : Roads & Traffic Authority of NSW (Appellant CA 40399/00); First Respondent CA 40319/00) Margaret Boxsell (Second Respondent) JUDGMENT OF : Spigelman CJ at 1; Heydon JA at 41; Davies AJA at 170 LOWER COURT JURISDICTION : District Court LOWER COURT DC 2859/98 FILE NUMBER(S) : LOWER COURT Coleman DCJ JUDICIAL OFFICER : J D Hislop QC/K Andrews (AMP General Insurance Limited) COUNSEL : J A McIntyre SC (Roads & Traffic Authority of NSW) M L Williams SC/Ms P M McDonald (Second Respondent) Gillis Delaney Brown (AMP General Insurance Limited) SOLICITORS : Hunt & Hunt (Roads & Traffic Authority of NSW) Carroll & O'Dea (Second Respondent) CATCHWORDS : Torts - Negligence - Liability - Foreseeability - Causation - Remoteness - Whether employer liable to deceased employee's widow for damage caused to her by employee's suicide - Employer breached duty of care to employee causing back injury - Employee applied for extension of limitation period in order to bring action for damages for back injury - Employee suffered stress from cross-examination in the hearing of application - Employee developed depression and committed suicide shortly after hearing - D Compensation to Relatives Act 1897 Fatal Accidents Act 1846 Fatal Accidents Act 1976 LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1934 Motor Accidents Act 1988 Workers Compensation Act 1987 Workmen's Compensation Act 1906 (UK) Workmen's Compensation Act 1925 (UK) CASES CITED: See attached DECISION : See paragraphs 168 and 169 CASES CITED Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 Avoushadi v CIC Insurance Ltd (1996) 23 MVR 385 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Bird v Australian Iron & Steel Pty Ltd (1979) 53 WCR 327 Campbelltown City Council v Mackay (1989) 15 NSWLR 501 Chappel v Hart (1998) 195 CLR 232 Chester v Council of The Municipality of Waverley (1939) 62 CLR 1 Church v Dugdale and Adams Ltd (1929) BWCC 444 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Coyne v Citizen Finance Ltd (1991) 172 CLR 211 Donoghue v Stevenson [1932] AC 562 Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518 Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 Grime v Fletcher [1915] 1 KB 734 Haber v Walker [1963] VR 339 Holdlen v Walsh [2000] NSWCA 87 Hughes v Lord Advocate [1963] AC 837 Jaensch v Coffey (1984) 155 CLR 549 Kavanagh v Akhtar (1998) 45 NSWLR 588 King v Associated Battery Makers of Australia Pty Ltd (1954) 28 WCR 105 Kirkham v Chief Constable of The Greater Manchester Police [1990] 2 QB 283 Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Marriott v Maltby Main Colliery Co Ltd (1920) 13 BWCC 353 M'Kew v Holland 1970 SC (HL) 20 Mitchell v Hunt (1960) 34 WCR 56 Morgan v Tame (2000) 49 NSWLR 21 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Murdoch v British Israel World Federation [1942] NZLR 600 Muscat v NSW Harness Racing Club Ltd (1994) 11 NSWCCR 1 Nader v Urban Transport Authority of New South Wales (1985) 2 NSWLR 501 Orange v Chief Constable of West Yorkshire Police [2000] EWCA Civ 611 Page v Smith [1994] 4 All ER 522 Pallister v Waikato Hospital Board [1975] 2 NZLR 725 Parry v English Steel Corporation Ltd (1939) 32 BWCC 272 Pigney v Pointers Transport Services Ltd [1957] 2 All ER 807; [1957] 1 WLR 1121 In re Polemis & Furness Withy & Co [1921] 3 KB 560 Reeves v The Commissioner of Police of the Metropolis [2000] 1 AC 360; Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9 Rosendale v Simmie & Co Pty Ltd (1939) 45 ALR 498 Rowe v McCartney [1976] 2 NSWLR 72 Smith v Commissioner of Police (No 2) [2000] 20 NSWCCA 27 White v Chief Constable of South Yorkshire [1999] 2 AC 455 Withers v London, Brighton and South Coast Railway [1916] 2 KB 772 Wyong Shire Council v Shirt (1980) 146 CLR 40 Zavitsanos v Chippendale [1970] 2 NSWR 495 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40319/00 CA 40399/00 DC 2859/98 SPIGELMAN CJ HEYDON JA DAVIES AJA 2 August, 2001 AMP GENERAL INSURANCE LIMITED v ROADS & TRAFFIC AUTHORITY OF NSW and MARGARET BOXSELL ROADS & TRAFFIC AUTHORITY OF NSW v AMP GENERAL INSURANCE LIMITED and MARGARET BOXSELL Torts - Negligence - Liability - Foreseeability - Causation - Remoteness - Whether employer liable to deceased employee's widow for damage caused to her by employee's suicide - Employer breached duty of care to employee causing back injury - Employee applied for extension of limitation period in order to bring action for damages for back injury - Employee suffered stress from cross-examination in the hearing of application - Employee developed depression and committed suicide shortly after hearing An employee ("the Deceased") of the Roads & Traffic Authority ("the Defendant") was injured in an accident at work on 27 February 1993. In 1997 the Deceased decided to commence a common law claim for damages against the Defendant. The limitation period for such a claim had expired and an application for an extension of the limitation period was heard on 24 April 1998. The Deceased was granted the extension but he suffered stress as a result of being cross-examined during the hearing. He developed depression and committed suicide eight days after the hearing. As a result, his widow ("the Plaintiff") suffered nervous shock and loss of financial support. The Plaintiff instituted proceedings against the Defendant for damages. The plaintiff was awarded $101,895 in damages for nervous shock and $176,933 under the Compensation to Relatives Act 1897 (NSW). The Plaintiff was also awarded $23,336 as Executrix of the Deceased's estate. AMP General Insurance Limited ("the Insurer") was ordered to indemnify the Defendant $307,164 (the total of the three amounts awarded to the Plaintiff). The Defendant and the Insurer appealed, challenging the damages awarded for nervous shock and under the Compensation to Relatives Act, but not the damages awarded to the Plaintiff in her capacity as Executrix of the Deceased's estate. Held by Spigelman CJ, Heydon JA and Davies AJA, allowing the appeal: (Per Spigelman CJ) 1. The causal chain between the tort and the suicide was broken. a. Considerations of policy and value judgments are appropriate when determining matters of causation in negligence claims. March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 516 and 524, and Chappel v Hart (1998) 195 CLR 232 at [26], referred to. b. "The deliberate self-infliction of harm should generally be seen to break the causal link" (Spigelman CJ at [27]). Reeves v The Commissioner of Police of the Metropolis [2000] 1 AC 360, referred to. c. There was no causation in fact. The cross-examination did not operate to reactivate the psychiatric injury caused by the accident. (Per Heydon JA) 2. a. For the purposes of determining reasonable foreseeability, causation and remoteness both the Plaintiff and the Deceased must be assumed to be persons of normal fortitude, unless the contrary was known to the Defendant at the date of the tort. The Defendant was not aware of any susceptibility of the Deceased to psychological injury at the date of the tort. Jaensch v Coffey (1984) 155 CLR 549, applied. b. It was not sufficient to find merely that development of a psychiatric illness "of some kind" by the Deceased was foreseeable as a result of the physical injuries suffered by the Deceased on 27 February 1993. Suicide must have been reasonably foreseeable as a result of the 27 February 1993 accident. Rowe v McCartney [1976] 2 NSWLR 72, applied. c. The risk of the Deceased's depression resulting in his suicide was not a reasonably foreseeable consequence of the tort, which occurred on 27 February 1993 - the date of the Deceased's workplace accident. Therefore, there was no duty owed to the Plaintiff to take care to avoid the risk of mental trauma to her; there was no causation in fact by reason of the tort; and the damage to the Plaintiff from the Deceased's suicide was too remote to sound in damages from the Defendant. (Per Davies AJA) 3. The cross-examination of the Deceased was a novus actus interveniens, which broke the chain of causation. a. The depression and suicide were not a continuation of the depression suffered by the Deceased following his back injury, but resulted from the cross-examination and the Deceased's pursuit of compensation. b. The events did not "occur in the ordinary course of things" (Davies AJA at [200]). ORDERS In the appeal by the Roads & Traffic Authority of NSW (CA 40399 of 2000) , the following orders are proposed: 1. That the appeal be allowed. 2. That Order 2 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof there be verdict and judgment for the Roads & Traffic Authority of NSW on the Plaintiff's claim pursuant to the Compensation to Relatives Act 1897. 3. That Order 3 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof there be verdict and judgment for the Roads & Traffic Authority of NSW on the Plaintiff's claim for damages for nervous shock. 4. That Order 4 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof that there be a verdict and judgment for the Roads & Traffic Authority of NSW against AMP General Insurance Ltd in the sum of $23,336 with interest from 13 April 2000. 5. That the Second Respondent pay to the Appellant, by way of restitution, all monies paid pursuant to the judgments in the Court below in respect of which the appeal has been allowed together with interest actually earned thereon from the date such sums were paid to today's date. 6. That there be no order as to the costs of any party to the appeal. In the appeal by AMP General Insurance Ltd (CA 40319 of 2000) the following orders are proposed: 1. That the appeal be allowed. 2. That Order 2 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof there be verdict and judgment for the Roads & Traffic Authority of NSW on the Plaintiff's claim pursuant to the Compensation to Relatives Act 1897. 3. That Order 3 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof there be verdict and judgment for the Roads & Traffic Authority of NSW on the Plaintiff's claim for damages for nervous shock. 4. That Order 4 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof that there be a verdict and judgment for the Roads & Traffic Authority of NSW against AMP General Insurance Ltd in the sum of $23,336 with interest from 13 April 2000. 5. That the Second Respondent pay to the Appellant, by way of restitution, all monies paid pursuant to the judgments in the Court below in respect of which the appeal has been allowed together with interest actually earned thereon from the date such sums were paid to today's date. 6. That there be no order as to the costs of any party to the appeal. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40319/00 CA 40399/00 DC 2859/98 SPIGELMAN CJ HEYDON JA DAVIES AJA Thursday, 2 August 2001 AMP GENERAL INSURANCE LIMITED v ROADS & TRAFFIC AUTHORITY OF NSW and MARGARET BOXSELL ROADS & TRAFFIC AUTHORITY OF NSW v AMP GENERAL INSURANCE LIMITED and MARGARET BOXSELL JUDGMENT 1 SPIGELMAN CJ: I have read the judgment of Heydon JA in draft. I adopt his Honour's outline of the facts of the case and the issues on the appeal. I agree with the orders his Honour proposes. This case can be decided on the basis of causation. Liability for Suicide 2 In Reeves v The Commissioner of Police of the Metropolis [2000] 1 AC 360, a prisoner had made two previous attempts at suicide, including one on the morning of his death. His defacto wife sued the Commissioner of Police under the Fatal Accidents Act 1976 for negligently causing her husband's death. In the House of Lords, the Commissioner accepted that because of knowledge of an actual suicide risk there was a duty of care to take reasonable steps to prevent suicide but, nevertheless, contended that the act of suicide broke the causal chain on the basis of novus actus interveniens. 3 Lord Hoffmann referred to a case in which "the law imposes a duty to guard against loss caused by the free, deliberate and informed act of a human being" (at 367H) and added: "It would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatived causal connection between the breach of duty and the loss." (367H-368A) 4 To identical effect are the observations of Lord Bingham of Cornhill CJ in the Court of Appeal in Reeves (see [1998] 2 WLR 401 at 425A and of Lord Hope of Craighead in the House of Lords at 381A-E). 5 Similarly in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, Mason CJ said at 517-518: "The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk. …. To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content." 6 In Reeves, Lord Hoffmann went on to observe: "… there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions. This philosophy expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed. But, once it is admitted that this is the rare case in which such a duty is owed, it seems to me self-contradictory to say that the breach could not have been a cause of the harm because the victim caused it to himself." (at 368C-D) 7 To similar effect are the observations of Lord Hope of Craighead: "It is unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately. On the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury. As a general rule the common law duty of care is directed towards the prevention of accidents or of injury caused by negligence. The person whom the duty is owed is, of course, under a corresponding duty to take reasonable care for his own safety. If he is in breach of that duty, his damages may be reduced on the ground of his contributory negligence. But if he injures himself by intentionally doing deliberately the very thing which the defendant is under a duty to prevent doing negligently, he may be found that he is unable to recover any damages. He may be found to have assumed the risk of injury, on the principle of volenti non fit injuria. Or it may be held that the chain of causation was broken by his deliberate act, in which case his claim will be defeated on the principle of novus actus interveniens. Or it may simply be that his loss, injury and damage will be held to have been caused wholly by his own fault, with the result that there will be no room even for a reduced award on the ground of contributory negligence." (at 379H-380C) 8 Reeves has recently been considered by the English Court of Appeal in Orange v Chief Constable of West Yorkshire Police [2000] EWCA Civ 611. A prisoner committed suicide, but there was no reason to suspect he was suicidal. The Court applied Lord Hoffmann's test of "very rare indeed" and found that liability had not been established. 9 I agree with their Lordships that a duty to protect a person from causing harm to himself or herself is rare or unusual. That test was satisfied in Reeves and in the earlier case of Kirkham v Chief Constable of The Greater Manchester Police [1990] 2 QB 283, because a duty existed to take steps to prevent suicide. Nothing like that appears in the present case. There was no duty upon the employer, or any person who had conduct of the proceedings, to protect the deceased from self harm. 10 The issue of whether or not suicide constitutes a relevant break in the chain of causation has been considered in two bodies of case law. First, under the workers compensation legislation in various jurisdictions (Withers v London, Brighton and South Coast Railway [1916] 2 KB 772; Grime v Fletcher [1915] 1 KB 734; Marriott v Maltby Main Colliery Co Ltd (1920) 13 BWCC 353; Church v Dugdale and Adams Ltd (1929) BWCC 444; Parry v English Steel Corporation Ltd (1939) 32 BWCC 272; Rosendale v Simmie & Co Pty Ltd (1939) 45 ALR 498; King v Associated Battery Makers of Australia Pty Ltd (1954) 28 WCR 105; Mitchell v Hunt (1960) 34 WCR 56; Bird v Australian Iron & Steel Pty Ltd (1979) 53 WCR 327; Muscat v NSW Harness Racing Club Ltd (1994) 11 NSWCCR 1; Smith v Commissioner of Police (No. 2) [2000] 20 NSWCCA 27; Holdlen v Walsh [2000] NSWCA 87). The second group of cases involved, as this case does, Lord Campbell's Act in various jurisdictions, including Pigney v Pointers Transport Services Ltd [1957] 1 WLR 1121; Murdoch v British Israel World Federation [1942] NZLR 600; Haber v Walker [1963] VR 339; Pallister v Waikato Hospital Board [1975] 2 NZLR 725. Reeves and Kirkham, the two English death in custody cases, were also brought under this legislation. There is also one case in which this issue has been considered in proceedings by an executor, in the context of a claim for damages for loss of expectation of life (Richters v Motor Tyre Service Pty Ltd [1972] QdR 9). 11 The workers compensation cases were concerned with a statutory formulation to the effect that "death results from the injury". The issue was whether the injury itself had an effect on the mind of the deceased worker so that it could be said that the injury resulted in the suicide. Some of the cases posed the question of whether or not the injury led to a state described as "insanity". At the time most of these cases were decided, suicide was itself a criminal offence and, accordingly, the focus on insanity as a defence to a suggestion of criminal conduct, was understandable. The issue is more appropriately expressed in terms of whether the worker's will has been so overborne, that the suicide could not be regarded as an intentional act. (See Holdlen v Walsh supra at [37]-[38] and see also Haber v Walker supra at 351 lines 30-35 per Lowe J.) 12 The workers compensation cases tend to be of limited assistance because the appeals were generally confined to questions of law and, accordingly, the issue determined on appeal was usually expressed in terms of whether there was any evidence which could justify the finding of the trial judge that the causal chain had not been broken. This was the position in Holdlen v Walsh (see at [5] and [49]), where this Court held that there was evidence to support the findings of the trial judge and, on that basis, the appeal was rejected. 13 The later New South Wales cases consider a particular statutory provision, which excludes compensation for "intentional self-inflicted injury", especially Bird v Australian Iron & Steel supra 229-230 and Holdlen v Walsh supra at [30]-[33]. No such formulation arises in the present case. 14 Furthermore, a number of these cases require the deceased's family to establish that the insanity was the "direct" result of the injuries received in the work place. Subsequent brooding over the effects of the injury was not regarded as sufficient. This formulation is not appropriate for the causes of action presently under consideration, a breach of duty owed to Mrs Boxsell and the claim under the Compensation to Relatives Act. 15 The first of the Lord Campbell's Act cases which concluded that the suicide did not constitute a novus actus interveniens was Pigney supra. Pilcher J expressly found that the Defendant could not reasonably have foreseen the suicide. However, his Lordship concluded that the death was "directly traceable" to the physical injury, applying the, now rejected, test of In re Polemis and Furness Withy & Co [1921] 3 KB 560. (See Pigney at 1123 and 1124.) Professor Fleming concluded: "… of all the progenies borne by Re Polemis , Pilcher J's decision is certainly the oddest and, unless the present writer is much mistaken, its chances of survival are slim indeed." (Fleming "Liability for Suicide" (1957) 31 ALJ 587 at 589) 16 In Murdoch v British Israel World Federation, the New Zealand Court of Appeal adopted the requirement of showing insanity as a direct result of injury, from the workers compensation cases, so that the suicide could not be characterised as a voluntary act. 17 The Court found such a connection in that case and, accordingly, concluded that a chain of causation had been established on the facts (at 631-632, 639-640). The test applied was whether or not "the insanity is the direct result of the injury" (631 line 44 per Myers CJ and "the injury was the direct cause of the insanity" per Ostler J at 641 line 8). 18 Murdoch's case, like Pigney, was influenced by the test in Re Polemis. (See Hudson J in Haber v Walker 367-368.) Hence the use of the word "direct". 19 As in the workers compensation cases, the relevance of insanity was based on the fact that suicide was a crime. Smith J, who dissented on other issues, said at 656: "Nor if he was sane could it be argued either that the cause of his death was the accident in December 1940, or that his death was the result of that accident. If after accident and injury a person in full possession of his senses commits suicide, the suicide is an intervening act and constitutes cause of death without further search." 20 In Haber v Walker the jury had expressly found that death by suicide was not reasonably foreseeable. By majority the Full Court of the Supreme Court of Victoria found that that was not a material finding as under the Victorian version of Lord Campbell's Act, reasonable foreseeability was not a requirement. The sole issue was whether suicide was a consequence of the Defendant's negligence. This Court expressly left open this issue in Versic v Conners [1969] 1 NSWR 481. The majority in Haber v Walker was doubted in Richters v Motor Tyres Service Pty Ltd supra. I agree with Heydon JA that it is not necessary to decide the issue in this case. 21 In Haber v Walker the jury had answered certain questions. It found that the death of the deceased was not an act of his own volition and that it was caused by the original accident. As noted, it also found that the death was not reasonably foreseeable. The majority in the Full Court held that these findings were not perverse. There was evidence on the basis of which this conclusion could reasonably be drawn. 22 The issue, Smith J said, was merely one of causation in the sense that "his death by suicide was a consequence of the Defendant's negligence". (357 line 52) His Honour noted that the test of causation is one of common sense (at 357-358). His Honour went on say at 358: "In the first place a wrongful act or omission cannot ordinarily be held to have been a cause of subsequent harm unless that harm would not have occurred without the act or omission having previously occurred with such of its incidents as rendered it wrongful. Exceptions to this first principle are narrowly confined. Secondly, where the requirements of this first principle are satisfied, the act or omission is to be regarded as a cause of the harm unless there intervenes between the act or omission and the harm an occurrence which is necessary for the production of the harm and is sufficient in law to severe the causal connection. And, finally, the intervening occurrence if it is to be sufficient to severe the connection, must ordinarily be either - (a) human action that is properly to be regarded as voluntary, or (b) a causally independent event the conjunction of which with the wrongful act or omission is by ordinary standards so extremely unlikely as to be termed a coincidence: See [Hart and Honoré Causation in the Law ] especially at pp103-1117, 123-134, 151-152 and 157-159." 23 In the case before the Court, his Honour said there was no issue of an intervening physical event, as distinct from human action. Accordingly there was no severance by reason of a "coincidence". The relevant question was whether or not the deceased's conduct could be categorised as a "voluntary act" (at 358 line 4). This, his Honour identified, in terms of whether or not "the actor should have exercised a free choice" (at 359 line 4). His Honour added: "… if this choice has been made under substantial pressure created by the wrongful act, his conduct should not ordinarily be regarded as voluntary: see [Hart and Honoré] at pp38, 134. Accordingly, the deceased's act in hanging himself was not, for purposes of the relevant principle of causation, a 'voluntary' act, if the deceased, in consequence of the defendant's negligence, was acting under the pressure of a mental disorder such as was described in the evidence at the trial and was not thereby prevented from exercising a free choice … ." (at 359 and see also 361 lines 1-6) 24 His Honour referred to the evidence and concluded that the suicide was not voluntary and that it "left unbroken the chain of causation between the defendant's negligence and the death". 25 In Richters v Motor Tyres Service Pty Ltd, the Supreme Court of Queensland held that it was not reasonably foreseeable that a woman injured in an accident in which her husband also died, would later commit suicide. Wanstall ACJ concluded at 23-24: "… her case has not negatived that her death was an act of her own volition, so that a novus actus intervenes to break the chain of causation between the defendant's original default and her death …". 26 In Pallister v Waikato Hospital Board, the Court of Appeal, by majority, found that the hospital had not been negligent in trying to ensure the physical safety of a patient who had known suicidal tendencies. The majority found that there was no breach of a duty. Instructions for a close watch on the patient had been issued, but had not proved effective. 27 As emphasised by the High Court in March v Stramare, causation is not only a factual question, it is also a normative one. (See March v Stramare supra at 516 per Mason CJ, with whom Gaudron J agreed, at 524 per Deane J and at 524 per Toohey J.) (See also Chappel v Hart (1998) 195 CLR 232 at [26].) Considerations of policy are relevant and value judgments are required to determine matters of causation for the purpose of attributing liability in negligence. Such considerations, in my opinion, lead to the conclusion that deliberate self-infliction of harm should generally be seen to break the causal link. 28 In the course of explaining the decision in M'Kew v Holland 1970 SC (HL) 20, Mason CJ said in March v Stramare at 517: "… in truth the decision proceeded from the conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action." 29 To similar effect are the observations of McHugh J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 428: "… the common law concept of common sense causation accepts that the chain of causation between breach and damage is broken for the purpose of attributing legal responsibility for that damage if there has been an intrusion of 'a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic'." (The quotation being from the observations of Lord Wright in The Oropesa [1943] P 32 at 39) 30 Actions involving the deliberate infliction of self harm should generally be regarded as "independent and unreasonable" and as a break in the sequence of events that may otherwise constitute a causal chain for the purpose of attributing legal responsibility. Issues of foreseeability may arise. It may be appropriate to recognise the deliberate infliction of self-harm as a separate kind of damage - distinct from both personal injury and psychiatric harm - for foreseeability purposes. That does not need to be decided in the present case. 31 Lord Hope of Craighead sets out a number of circumstances in which a duty of care extended to the prevention of deliberate acts of self-harm in Reeves supra at 380C-E: "But the duty of care may sometimes extend to preventing people injuring themselves deliberately. The person to whom the duty is owed may be unaware of the risks to which he will expose himself by his deliberate act. Or he may be too young to appreciate them, as in Yachuk v Oliver Blais Co Ltd [1949] AC 386, where petrol was sold to a child aged nine who was unaware of its dangerous properties, or Hughes v Lord Advocate [1963] AC 837, where the inquisitive children meddled with objects in the unattended shelter in the roadway without thought as to the consequences. Or he may be of unsound mind, with the result that he is at risk of doing something to himself which no rational person would do as he would appreciate that to do this would inevitably lead to injury. Or the risk that the person may commit an act of deliberate self-harm may be the result of something which the defendant has done or is doing to him." 32 The relevant circumstance in the present case is the last: Was the risk of self-harm the result of the failure to provide a safe system of work? Causation in Fact 33 The issue of causation is determinative for both Mrs Boxsell's personal cause of action and the cause of action under the Compensation to Relatives Act. As Heydon JA states, this is to be determined in accordance with the principles set out in March v Stramare supra especially at 515-519 per Mason CJ. 34 As McHugh J said in Chappel v Hart supra at [26]: "Underlying the rejection of the 'but for' test as the determinant of legal causation is the instinctive belief that a person should not be liable for every wrongful act or omission which is a necessary condition of the occurrence of the injury that befell the plaintiff. As Mason CJ emphasised in March [at 509], causation for legal purposes is concerned with allocating responsibility for harm or damage that has occurred. So the mere fact that injury would not have occurred but for the defendant's act or omission is not enough to establish a causal connection for legal purposes." 35 The legal proceedings concerned the injury which the deceased suffered by reason of the employer's default. That does not mean that the employer is responsible for whatever happens in court. The employer would not necessarily be liable if the employee suffered different harm whilst in a hospital which he attended for treatment of his original injury. This is not a case in which the events in court can be treated as some form of exacerbation of the original injury. (Cf Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 529-530.) 36 Neither the trial judge's findings, nor the evidence in the case, suggest that the cross-examination operated in a manner which can be described as reactivating the psychiatric injury caused by the accident. The trial judge expressly found that the depression was "effectively cured in early March some six weeks before the proceedings took place" (at [56]). He further found "Mr Boxsell's suicide was caused by events which took place during the application for leave and it was that event which triggered the later depression which led to him taking his life" (at [57]). 37 The evidence, and the trial judge's findings of primary fact, emphasise aspects of the cross-examination which caused the deceased to become concerned about matters, being aspects that are of a qualitatively different character from those about which he was concerned originally as the result of the debilitating effects of the accident. 38 In the episode leading to the final act of suicide, the deceased did not refer to his future work prospects and the detrimental effect on his self-image as a fully participating member of the workforce. Rather, he was concerned to a predominant extent with the process of litigation in which he believed he had been, and could be, made to appear to be a fool or a person avoiding work. The following are the pertinent findings of fact by the trial judge: · The Deceased told his daughter, "I thought I was an idiot. I couldn't understand what I was reading". (at [50]) · In a conversation with a friend: "The Deceased said that he was made out to be a liar and felt he was made a fool of in front of everyone present and was asked many confusing questions and was petrified that he would make a mistake and be branded a liar and a fraud". (at [51]) · His Honour referred to Mrs Boxsell's description of the events leading up to the court application and said, "at times her husband appeared to be confused with the questioning because of his illiteracy. She said he seemed to dwell on the court and kept going back to his paperwork so that he would have a better understanding of things as if he was obsessed with it". (at [52]) · After telling his wife that he was "going to drop the case", that evening at home the Deceased expressed a fear of failing and looking like an idiot. (at [52]) · The day before the suicide, Mrs Boxsell found the Deceased "totally absorbed in the paperwork and concerned about a mistake and the need to ring his solicitor. Later that night in bed he told his wife that there was a bug in the roof". (at [53]) · On the day of the suicide: "the Deceased expressed a fear to his wife and others that he would look like a liar and a cheat and was too slow answering questions and would get confused and lose the case and wanted to give it up." (at [54]) · In relation to the earlier conversation which the deceased had with his friend, his Honour said that, "he whispered secretly throughout most of the conversation which was about the RTA and their solicitors, investigators and the Deceased's bitterness towards the barrister that cross examined him on the Court appearance". (at [51]) · In that conversation that the Deceased, "referred to a suspicion that he had been followed and photographed" and when another person arrived the Deceased, "expressed the view that he was the person following him around and that he would kill him as soon as he saw him across the road from his house". (at [51]) 39 These are all matters which relate directly to what occurred during the course of the legal proceedings. They involve qualitatively different matters from those which were involved in the diagnosed Adjustment Disorder with Depression and Anxiety. The conduct after the legal proceedings cannot, in my opinion, be characterised as a revival of the feelings of inadequacy and concern about his future job prospects which arose as a result of the back injury and which had been successfully treated. 40 The conduct after the legal proceedings concerned a different manifestation of what may well have been the same fundamental personal inadequacy that had caused the original reaction. However, as such a different manifestation, it was not a response which ought be regarded as causally related to the original injury. The causal chain was, in my opinion, broken. 41 HEYDON JA: An employer breaches its duty to take reasonable care to prevent the occurrence of a reasonably foreseeable risk of back injury to an employee. The employee fails to sue within the limitation period, but later applies, successfully, for an extension of time within which to commence the proceedings. The hearing of that application causes the employee stress. He develops depression and commits suicide eight days later. Is the employer liable to the employee's widow when, in consequence of the employee's suicide, the widow suffers (a) nervous shock; and (b) loss of the financial support which the employee would have provided had he lived? Procedural background 42 These questions arise in appeals brought against orders made by Coleman DCJ on 13 April 2000 that a widow ("the Plaintiff") recover $101,895 damages from the Roads and Traffic Authority of NSW ("the Defendant") for nervous shock and $176,933 damages from the Defendant under the Compensation to Relatives Act 1897. The trial judge also ordered that the Plaintiff recover $23,336 in damages from the Defendant as executrix of the estate of her husband ("the Deceased"). 43 In addition, the trial judge ordered a verdict in favour of the Defendant on its cross claim against AMP General Insurance Ltd ("the Insurer") in the sum of $302,164, being the sum of the three amounts of damages ordered against the Defendant. The Insurer was the compulsory third party insurer of a motor vehicle involved in an injury to the Deceased sustained on 27 February 1993. 44 Both the Defendant and the Insurer have filed Notices of Appeal, but not all grounds were pressed. The trial judge's finding that the Defendant negligently failed to discharge its obligation to provide a safe system of work and thereby caused the Deceased to suffer a back injury on 27 February 1993 was challenged in the Notices of Appeal, but both the Defendant and the Insurer abandoned the relevant grounds of appeal shortly after the appeals were called on for oral argument. A damages challenge was withdrawn. Further, the Insurer's Notice of Appeal challenged findings of the trial judge that symptoms from which the Deceased suffered after 27 February 1993 were caused by his injury on that day rather than by degenerative change or by the general nature and conditions of the Deceased's employment. Those challenges were also withdrawn. The effect of this was to leave no issue between the Defendant and the Insurer. They took up an identical posture against the Plaintiff on the appeal. Another consequence of these withdrawals is that there is no challenge to the trial judge's award of $23,336 damages in favour of the Plaintiff as executrix. 45 The only remaining issues comprise a group of questions which during the appeals were characterised as foreseeability, causation and remoteness questions. Of necessity, their characterisation is variable and far from certain, and they are closely interrelated. The facts 46 At the commencement of the melancholy series of events which began with the Deceased's accident at work on 27 February 1993, he was 46. He had worked for the Defendant from 1967 for about five years. He then worked at a colliery as a shuttle car driver and as an installer of timber props. In 1976 he suffered a neck injury which caused him to have some time off and to receive weekly compensation payments until a redemption in 1991. In 1977 he began to work for the Defendant again as a patrolman on the Macquarie Pass, and he was employed in this capacity on 27 February 1993. Most of his duties included heavy manual work such as utilising jackhammers, setting up road closures (which included carrying sand bags weighing more than 10 kilograms) and digging trenches. Before 1993, apart from the neck injury in 1976, the Deceased had suffered a minor lower back strain in 1980, and he had undergone varicose vein surgery with full recovery of leg function. 47 In short, the Deceased was a healthy man who had been engaged in heavy work all his life. He was happy. He had been married for about 25 years, with children aged 23 and 19. His wife was a primary school teacher, specialising in teaching children with intelligence quotients of less than 75. There was oral evidence from the relieving principal of her current school that she was a very good teacher. She had a part-time practice as an alternative therapist. The Plaintiff first met the Deceased when she was 13 and married him when she was 18. She regarded her marriage as "Great. In a word, excellent." She described the Deceased thus: "Fun, a heck of a lot of fun; a great person to be with. We just had 30 years of a terrific time. That's what it boiled down to and that's what I miss." 48 To some degree the happiness of the Deceased stemmed from his love of physical work. In cross-examination during the hearing of his application to extend the limitation period, he said of his work: "that was all I really asked for in this world mate. I mean I like to work." A psychologist who saw him in the period 1997-1998 said that to "be a contributing member of a team … was an important and essential work value for him." His primary pleasures away from work lay in physical activity, particularly working with his hands and carrying out physical tasks around his home. He had in fact built his house. In these activities he set for himself and was regarded as achieving a standard of perfection. The Plaintiff said: "Because he wasn't so good with words he loved to express himself through his hands." He had recently developed, from 1991 on, a new interest: he and his wife liked to go on long motoring holidays in the outback during school vacations. They planned to pursue this interest in the coming years and after they had retired. 49 If the Deceased's life had a dark side, it is illustrated by the Plaintiff's reference to the Deceased not being "so good with words". That was a reference to the fact that the Deceased perceived himself as having been left illiterate after an unsuccessful and difficult schooling. He could in fact sign his name and write coherent prose. But his spelling and grammar were poor. He told one of his doctors that he had "great difficulty reading". A psychologist said that the Deceased reported himself as being "functionally illiterate". That psychologist considered that the Deceased "had very limited reading and writing abilities". His wife said that his standard of reading and writing was the "absolute bare minimal". His reading age was that of a 6 year old. He could read, but not "retain", a Noddy book. The trial judge found that the Deceased "whilst not illiterate was extremely limited in his literacy and numeracy". 50 On 27 February 1993 the Deceased was unloading rolls of plastic weighing about 30 kilograms from a truck. While unloading one of them he felt severe pain in his lumbar spine. 51 On 1 March 1993 the Deceased contacted his general practitioner, Dr Vesey, about pain in his lower back and numbness in his left leg. Dr Vesey diagnosed a lumbo-sacral disc bulge. Despite rest, exercise and physiotherapy, the Deceased did not fully recover. However, Dr Vesey considered him fit to resume full duties at work on 20 April 1993. His injury continued to give him problems at work, and he continued to experience pain. But he nonetheless continued to work. The Plaintiff said "his main theory" was that he did not "want to give up". "He didn't like to admit defeat to his injury". He continued working until the pain became too much, at which point he would take long service leave in order to rest. He also attempted to manage his pain by reducing his working hours, declining overtime, and letting other crew members do the heavier work. 52 The Deceased's pain increased after he twisted his spine on 9 March 1995 while climbing into the driver's seat of a truck at work. He was treated with physiotherapy and a course of anti-inflammatory tablets. He gradually improved and Dr Vesey thought he was fit for full duties on 22 May 1995. On his return he experienced intermittent pain, and found his general condition a little bit worse. 53 In about mid May 1997 the Deceased began to experience greater pain. It became more severe in early August. It prevented him from going to work on 8 August. A holiday began on 9 August. It was to be a driving holiday, but he was forced to return on 12 August. He saw Dr Vesey on 13 August. He was referred to a specialist neurosurgeon, Dr Stening. Dr Vesey saw him on 31 October 1997 and formed the view that because of the Deceased's pain in his back and left leg he was unfit to resume full duties and might never be fit for full duties. He said he was "fit for restricted duties", but no such duties were currently available. 54 Dr Stening, whom the Deceased saw on 25 August 1997 and 29 September 1997, formed the view that the Deceased would never be able to engage in heavy lifting or repetitive stooping, and the greatest improvement to be hoped for was improvement "to a point where he can carry out supervisory or clerical or desk duties". 55 The Deceased did not in fact ever work again in the nine months he lived after 8 August 1997, and the opinions of his medical advisers support the view that that was because he was physically unfit to resume his previous duties. Over the years from 1993, he became less and less able to carry out the manual activities at home which had occupied much of his leisure time before 1993. The Plaintiff progressively took over those of his activities which were household responsibilities, such as servicing and washing motor vehicles, cleaning the swimming pool, cleaning the garden and washing clothes. 56 It seems that in late 1997 the Defendant informed the Deceased that he would be offered employment in an office taking telephone messages. He attempted to explain to the Defendant's officers that that was not an available option because of his illiteracy. The information caused him to consult a psychologist, Mr Anning, on 4 December 1997, and on another six occasions up to 5 March 1998. He reported to Mr Anning his "overriding fear" that if he were made to undertake office work he would be "made to feel a fool". He also said there was nothing meaningful he could do in that capacity and thus would not be a contributing member of a team. Mr Anning opined that these "work values" were very important to the Deceased. He also opined that if the Deceased were directed to do office work it would be psychologically damaging. He found the Deceased to be "distressed and agitated". When Mr Anning first saw the Deceased, he identified "symptoms consistent with a diagnosis of Adjustment Disorder with Depression and Anxiety as a result of his workplace injury". When Mr Anning saw him for the last time on 5 March 1998, he concluded that the Deceased "appeared to have recovered from the condition of Adjustment Disorder with Depression and Anxiety". The trial judge found: "I am satisfied that when last seen by Mr Anning the Deceased's condition was almost if not completely resolved and that he made a complete recovery before the application for leave to proceed … under s 151D of the Workers Compensation Act 1987 [was heard] on 24 April 1998 about seven weeks after he had last consulted Mr Anning and I am satisfied that at that time he was not suffering from any psychological or psychiatric condition as a result of any workplace injuries." 57 The application heard on 24 April 1998 to which the trial judge referred was made in the following circumstances. In late August or early September 1997, after the Defendant's workers' compensation insurer was refusing, or threatening to refuse, to pay the Deceased compensation after he ceased work, the Deceased consulted a solicitor on the telephone. He was told he might have a claim for damages at common law. On 14 October 1997 the Deceased was interviewed by the solicitor. On 15 December 1997 the Deceased swore an affidavit filed in support of an application to extend the limitation period for a possible action in relation to the 1993 injury: that limitation period had expired in February 1996. The application was heard by a District Court judge on 24 April 1998. The judge delivered an ex tempore judgment giving reasons for granting the application. The judge did, however, order the Deceased to pay the Defendant's costs of the application. 58 However, despite the Deceased's success in the application, the events of that day were calamitous for him and for the Plaintiff. 59 Even before that day, the Deceased had repeatedly expressed concern to his daughter. He frequently said to her: "I am worried about the statement. I don't want anyone to think I am a cheat or a liar." 60 Proceedings commenced shortly before 11.40am on 24 April 1998. The judge drew attention to a sentence in paragraph 4 of the Deceased's affidavit which he said "doesn't make very much sense". The sentence, which described the condition of the truck just before the Deceased suffered injury while unloading the roll of plastic on 27 February 1993, was: "There was a lot of loose bulk material on the tray of the truck and the gate of plastic over the top of the tail gate." Counsel for the Deceased said he was proposing to clarify the sentence in examination in chief. 61 At 11.40am the Deceased began to give evidence in chief. It began as follows: "Q. Sir, I think you have a copy of your affidavit with you? A. Yes I do. Q. Can I ask you to open the affidavit at paragraph 4? A. Yep. Q. If you don't mind, I'll just read to you a couple of sentences from it? A. Uh-huh. Q. 'I was required to load about four large and heavy rolls of plastic approximately two metres long and 200 millimetres in diameter. There were three men in the crew at this stage. The ganger was in the office, and the other crew member was loading material into the utility.'? A. Yeah. Q. 'At Albion Park I was required to remove the rolls of plastic from the five ton truck and carry them into the store', you see where I'm reading from sir? A. Yes. Q. The next sentence, 'There was a lot of loose bulk material on the tray of the truck and the gate of plastic over the top of the tailgate' -- A. I've lost you. Q. I'm reading from about the middle of paragraph 4, the sentence that starts 'there was a lot'. I'm reading from that sentence? A. Yeah, I just couldn't find it, sorry. Q. Would you read that sentence to yourself sir? A. Yeah. Q. You'll see sir the sentence doesn't make a whole lot of sense? A. No it doesn't, no. Q. Can you explain what you were getting at there? A. Well, yeah, what it is, was lifting the rolls of plastic out of the truck, over the tailgate. Q. So the tray of the truck had sides on it I take it? A. Yes, yeah. Q. And the tailgate was how high? A. About a foot, which is 300 millimetres. Q. So I take it you're leaning in over the back of the tailgate? A. Yeah, just leaning in, yeah." With hindsight, it can be seen why the Deceased was having difficulty with the questioning, and why the relevant sentence had not been corrected when the affidavit was sworn. 62 After the balance of the examination in chief, which was interrupted by a few objections, some successful, the cross-examination by counsel for the Defendant began. The trial judge described it as "forceful and searching". Counsel for the Plaintiff in the course of the appeal responded to a suggestion from counsel for the Insurer "that this was cross-examination which had nothing untoward about it" in the following way. He said that at some points the cross-examination became "a hectoring-type cross-examination which didn't permit the [Deceased] to answer. He was cut off on a number of occasions when he was in the middle of answering questions." He also mentioned the following parts of the cross-examination. 63 The Deceased was asked whether the solicitor whom he saw in 1997 had acted for him when he was injured in 1976. He denied it. The denial was rightly said to be correct, and the suggestion in the question was rightly said to be incorrect. 64 In due course the correct solicitors consulted in 1976 were identified. The transcript then records the following: "Q. You consulted them in relation to an injury that you got at work where you had some disability flowing from that, didn't you? A. Yeah. Q. Now you knew [the Coal Mines Insurance] weren't paying you out of the goodness of their heart, didn't you? … A. I suppose not." 65 After giving evidence about which doctors he saw in 1976, the Deceased was questioned as follows: "Q. And after that did you have a family doctor? A. Yes. Q. Who was that? A. Dr Fuller. Q. And where's he? A. He's deceased. Q. I take it he didn't decease whilst you were attending him? A. No. Q. He didn't die while you were seeing him? A. No, no." 66 The cross-examiner referred to the fact that the Deceased was in receipt of weekly compensation payments as a result of the injury to his neck in 1976 until 1991. The transcript records: "Q. Yet you were willing to take money from that coal company until 1991 even though you had no problems with your neck, is that right? A. You've got problems but it's not major problems. That's what I'm trying to say. You're not -- Q. Well you had major problems with your back in February of 1993 didn't you? You weren't able to work isn't that right? A. Yes I was off work that's right." 67 Attention was then directed to the following passage: "Q. And you know that people go to other courts than compensation courts for money for injuries they get don't you? A. Yeah I suppose they do, there's -- Q. Well it's something you've known for many years isn't that right? Isn't that right Mr Boxsell? A. Yeah I suppose it is but -- Q. And you know that people go to other courts, like the Supreme Court and the District Court for payments for injuries that they get at work don't you? A. Yeah compensation injuries yes. Q. Well for injuries that they get at work, you know that they go to the Supreme Court and the District Court don't you? A. Well I don't know whether they're, they're the courts but I know that they go to court for that type of thing. Q. Well you read it in the papers don't you, someone gets so much damages for an injury that they got at work? A. Compensation. Q. But not in the compensation court, in the Supreme Court and the District Court, you know that don't you? A. No I can't really follow, I really can't follow what you mean. A court's a court. Q. What about - you read the Illawarra Mercury don't you? A. Very rarely I'm afraid because -- Q. And you're a member of the union are you not? A. Yes I am a member of the union yeah. Q. And the union puts out newspapers and magazines don't they? A. Yeah. Q. Telling you - informing you about what other workers get in different courts don't they? A. No. Can I say something here? Q. Well you'll get a chance to later on. If you could just answer my questions? A. All right, okay. Q. Are you telling me that your union newspaper doesn't put out what workers get for their injuries in the Supreme Court or the District Court? A. I don't know what they've got in their paper. I very rarely read the paper. I don't know whether I even get a union paper to tell you the honest truth." 68 Parts of the submissions of counsel for the Defendant on 24 April 1998 have some significance in the chain of events. He submitted: "One really must question whether or not he's being a witness of truth when he says he doesn't know about people getting claims for money, injuries - sorry, for injuries in money in other courts because he doesn't read any newspapers put out by his union, when quite clearly he hotfoots it down there as soon as it looks like there is a bit of coin hanging around from an industrial deafness claim." Counsel for the Deceased riposted thus: "One, that I understand it was put that your Honour would be entitled to question whether the plaintiff was a witness of truth in respect to his not knowing of claims in other courts and I think the quote was that he hotfoots it down there when there's a bit of coin hanging around for industrial deafness case. Your Honour, at no stage was it put to the plaintiff in cross examination that he was lying about anything that he said. In my submission it's not open for my friend to make a submission adverse to the plaintiff's credit." 69 The Plaintiff sat next to the Deceased during the hearing on Friday 24 April 1998. She said "He was very upset". Her evidence continues: "Q. What did he say to you? A. He said to me, 'I'm such a fool'. He said, 'He made me look like a fool', meaning [counsel for the Defendant]. Q. Did he give you any details about what he thought may have --- A. Yes. He couldn't recall dates, times. [Counsel for the Defendant] kept going from one case to another case to another case and that just confused Bruce. He can't work that fast. He didn't have that mental capability." 70 On the evening of 24 April the Deceased said to his daughter: "I was so scared …. I thought I was an idiot. I couldn't understand what I was reading". 71 The Plaintiff described the Deceased's reaction in the ensuing week as follows: "Q. How did he appear to you over the next few days? A. I thought he was all right on the Saturday and Sunday but then by the Monday he was really fidgeting, he wouldn't sit down, getting up, having another cigarette, making another cup of coffee and this was just this continual rollover. I got home from work on the Monday afternoon, he started saying, 'it has got to stop. We can't do it', and we talked a little bit and I thought it was just nerves but then by the Thursday he actually came to me at school and said, 'We have got to stop the case', and I asked him why and he said, 'because I can't remember everything and I'm frightened I'm going to say something wrong'. I asked him, 'What do you mean?' and he said, 'What if I make a mistake and give the wrong date?' and that's what he became obsessed with because [counsel for the Defendant] kept putting him from one date to another date. So Bruce felt that he had to try and memorise these dates and instances and when he had gone to physio or whatever else, the treatment that he had. He said to me, 'We are going to fail. I can't remember them'. He wanted to put the house into my name so that we couldn't lose the house. He went into big panic mode. HIS HONOUR: Q. What was the fear that he had of losing the house? What was that based on? A. Really - I don't know, I think - we talked about it. Q. Did you talk to him about his fear of losing the house? A. Yes we did. Q. What was his fear based on? A. He said that if we lose the case because he couldn't remember everything then we would have to pay all the bills and that means we have to sell the house and that's what he was worried about. Does that help? HIS HONOUR: Q. I don't know, but go on. He expressed to you the fear that he might have to sell the house to get the money to look after himself in the future? A. No. To pay the bills for the court case if we failed. It wasn't to do with our bills. WILLIAMS: Q. Did he speak to you about the suggestion that was made in the case that he was not telling the truth? A. Yes, that hurt him really bad and there was another inference - I think there was some inference to or words made that said that Bruce was quite ready to hot foot it down to the court house to make another claim. Bruce has a really guilt complex on people going to court for compensation. He doesn't like the idea of being in compensation claims because you are made to feel what is called compo thing. You get branded with that and he is quite embarrassed with that. He doesn't like. That was something that was said and the fact that it was inferred again that he wasn't telling the truth and that wasn't the case. Q. Had you ever seen any evidence of Bruce being dishonest? A. Hang on. He lied to me one time, 'I've got to go down and get a paper', and he came box of chocolates he gave me." 72 His daughter said that on Monday 27 April she saw the Deceased in the street. He "had a strange, blank expression on his face". She went to her parents' house to check on him. He would not talk to her, save to say that he was all right. 73 The Plaintiff said that in the week after the hearing the Deceased could not sleep and moved restlessly around the house all day and all night. A birthday party for a friend of the Deceased's daughter was held, but the Deceased sat away from the group. They spoke to him, and he said "I'm OK. I'm just pretty down. I'm upset." 74 On Wednesday 29 April the Deceased's daughter noticed that he would only speak in hushed tones and had a "strange plain" expression on his face. 75 During the week after the hearing the Plaintiff said that the Deceased: "seemed to dwell on the court. He wanted to know all the details and wanted everything to be perfect. That's why he kept going back to his paperwork so that he would have a better understanding of things. He looked and studied this paperwork every day since that date. It was as if he became obsessed with it." 76 In a statement the Plaintiff described the Deceased's visit to the school where the Plaintiff taught on Thursday 30 April, at about 11.05am, as follows. "He said, 'I am going to have to drop the case, they are going to crucify me because I think I've got things wrong and I've sworn on the bible.' I said, 'But you're not. You are honest. You have not lied. You have just got it muddled up.' He said, 'What if I had hurt my back before 1993, I might have?' I said, 'Yeah, you might have hurt a muscle or pulled one but your discs were popped in 1993. That's a new injury so your statement is correct.' I do not recall him hurting his back before that incident in 1993. I followed him out to his car and we talked some more. It was about the same thing. He said, 'I was planning to kill myself today. I even wrote you all a note.' I didn't say anything and he gave me a note. I recognised it to be his writing. He even signed it. I said, 'But you're not, are you? You're not.' While I was reading the note he said, 'No. I'm not. I've thought about it and I'd hurt too many people and it might cause 'Niecey' (meaning our daughter Denise) to have a miscarriage.' He said, 'Can I have the note?' I said, 'Why?' He said, 'Cause I just got to have it back.' I gave him back the note. We talked a little bit more and we were both crying. About half an hour had passed and he said, 'I'm alright now.' I said, 'Are you sure?' He said, 'Yeah. I'm right. I'll be right now.' I said, 'Okay, I'll see you this arvo.' Bruce then drove off. I went back to work." 77 When the Plaintiff returned home that afternoon, the Deceased said he was "right". He also said: "I was just having a bad time. I am scared of failing and looking like an idiot." 78 The trial judge found that at this stage the Deceased "was in a severe state of depression which was progressing". 79 On Friday 1 May the Deceased visited a work friend, Mr Andreini, who had been part of the Deceased's gang on 27 February 1993 and who had also had a claim against the Defendant. Mr Andreini perceived him to be extremely agitated and very tired. He constantly looked over his shoulders. His eyes were bloodshot and glazed. He was shaking. He spoke only in whispers. He expressed bitterness about the Defendant, its solicitors and its investigators. He said that in court he was made out to be a liar, felt he was being made a fool of in front of everyone present, and said he was asked many confusing questions. He was petrified he would make a mistake and be branded a liar and a fraud. He said he had been followed on numerous occasions and that the Defendant had been taking photographs of himself and his family. He expressed fear that the Defendant would allege that he and Mr Andreini were conspiring to make a claim. He became very agitated and began asking about the dates and times of events that occurred in relation to his and Mr Andreini's claims. The Deceased's son arrived but the Deceased "shied away and became more secretive" until the son left. A police officer then arrived and the Deceased threatened to shoot him. Mr Andreini regarded the Deceased as "a shadow of a man I once knew". The trial judge said that this evidence "confirms the severity of the Deceased's depressive state after the hearing". 80 When the Plaintiff returned home on Friday 1 May, she found the Deceased: "sitting at the kitchen table totally absorbed with his paperwork. He said, 'I've got to ring them. [I] think I've made a mistake. The plastic came from a job down south and not from Bellambi.' I said, 'Alright, ring'. [The Deceased] then rang the solicitors and had to wait for them to call back." 81 That night, while the Plaintiff and the Deceased were in bed, the Deceased whispered: "They're listening. There's a bug in the roof." The Plaintiff tried to reassure the Deceased, but they did not go to sleep until 3.30am. 82 On Saturday 2 May 1998, in the middle of the morning, the Deceased told the Plaintiff: "I want to give up the case because I'm afraid of looking like a liar and a cheat. I'm too slow answering questions. I get confused. I will lose the case. I want to put this house in your name so they can't take it away from you." The Deceased then appeared to calm down. 83 At about 8.30pm the Deceased's daughter rang and he said that he would visit her the next day. 84 Later that evening, while the Deceased was at home with his son and daughter-in-law, he and the Plaintiff were watching a film on television. His wife described events as follows: "During the movie Bruce constantly got up and down out of the lounge chair. He walked out the back and front of the house to have a smoke. He went to the front room a couple of times. During one of these occasions I heard the large family safe open. I didn't think much about it because he said, 'I've got to fix up a few things and put them away'. I assumed that he was going to put away the money that my son gave him earlier or just doing what he had done over the past week. That is he had been going over paper work from his court matter again and again. It was like an obsession. About 10.30pm Bruce got up and walked towards the front of the house. I thought he was going out to have a smoke. I heard the latch on the gun cabinet. I had knitting and a blanket on my lap. I got them off. I heard the front door close. I went to follow him but when I got to the kitchen table I heard a gun shot." She then searched the garden and found that the Deceased had committed suicide. 85 The effect of the Deceased's death on the Plaintiff has been severe. It has caused her mental trauma. It is unnecessary to set out the details. The sum awarded in relation to the Plaintiff's nervous shock claim is no doubt a quite imperfect means of remedying her loss, but the Defendant and the Insurer did not contend that, so far as the law can remedy that loss, it was an excessive response. Nor did they contend that the sum awarded in relation to the Plaintiff's claim under the Compensation to Relatives Act 1897 was excessive. 86 So far as the above account describes factual matters, it has been based on evidence which was not the subject of cross-examination or was otherwise incontrovertible, and on unchallenged findings of the trial judge in his admirably detailed and careful reasons for judgment. The controversy in the appeals centred largely not on the trial judge's primary factual conclusions, but on certain ultimate factual conclusions and on his legal reasoning. The trial judge's reasoning 87 The trial judge made the following findings. 88 First, the Defendant was in breach of its duty to provide a safe system of work on 27 February 1993, thereby causing an injury to the Deceased's lower back. 89 Secondly, the injury to the Deceased on that day caused the pain and disability he suffered thereafter, and they were not caused by degenerative changes or aggravation arising out of the nature and condition of his employment. 90 Thirdly, the trial judge accepted the conclusions arrived at by Dr Gertler, a consultant psychiatrist: "IMPRESSIONS There is no evidence that Mr Boxsell suffered from depression or other psychiatric problems prior to his appearance in court on 24 April 1998. That appearance caused him considerable distress. He appears to have been confused by the court proceedings and to have left the court feeling that he had been made out to be a fool, inadequate and a liar. Given that Mr Boxsell appears to have been a very straightforward, honest and hardworking man who was attempting to come to terms with his chronic disability and the fact that he was no longer able to work, he was apparently angered and humiliated by the suggestion that he had stopped work only to make financial gains through the compensation process. In my opinion, there is a causative link between Mr Boxsell's injury sustained in 1993 and subsequent assertions made against his character during the hearing on 24 April 1998 which ultimately led to his severe depression and suicide on 2 May 1998.' 91 Fourthly, as already indicated, the trial judge found that the Deceased had ceased to suffer from depression before the hearing on 24 April 1998. He went further: "there is no evidence of depression or psychiatric illness or disturbance immediately prior to the appearance in Court on 24 April 1998 and I am satisfied that was the fact and I am also satisfied that the Deceased's pre-existing psychological or psychiatric problems which resulted in the depression which caused the referral to Mr Anning was effectively cured in early March about six weeks before the proceedings took place." 92 Fifthly, the trial judge found: "[The Deceased's] suicide was caused by events which took place during the application for leave and it was that event which triggered the later depression which led to him taking his life." 93 Sixthly, the trial judge found (and this finding was challenged) that before 24 April 1998 "the Defendant was aware that the Deceased was susceptible to psychological injury". 94 Seventhly, the trial judge said: "The necessity to make the application for leave to proceed out of time was not the product of the tortiously based pain and discomfort under which he was labouring …. [The] evidence is clear that it was the psychological or psychiatric injury induced by the application which led to the suicide and not any physical pain, disability or restriction which existed concurrently with and independently of the psychiatric or psychological disability." 95 Eighthly, the trial judge said: "The events between which a causal link must be established are the act of negligence and the psychiatric illness which arose as a result of the Deceased's cross examination …. [It] seems to me clear that the depression which the Deceased suffered after the events of the application and its sequel was caused by the accident and the injuries which the Deceased suffered therein." 96 Ninthly, the trial judge said: "the 1993 incident was a legal cause of the depression and consequent suicide because it materially contributed to the onset and continuation of the severe depression. Psychiatric illness of some kind was reasonably foreseeable as a consequence of the physical injuries which the Deceased suffered and it does not matter that the severe depression and suicide was of rare occurrence." 97 Tenthly, the trial judge said: "it was in my view perfectly foreseeable that the Deceased might either be ignorant of his rights or misappreciate the extent of his injuries and place himself in a position where an application would be necessary to bring an action out of time. The fact that the suicide occurred as a consequence of that ' perhaps unforeseeable step' or the ' perhaps unforeseeable reaction' of a worker who was limited in his literacy to cross examination during that application does not prevent the severe depression which led to the suicide for a vulnerable [Deceased] being foreseeable." (The expressions in quotation marks were taken from Mason P's reasons for judgment in Kavanagh v Akhtar (1998) 45 NSWLR 588 at 602E.) 98 Eleventhly, the trial judge said: "Suicide caused by severe depression arising out of cross examination during an application for leave to extend time was in my view damage of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act of the employer." 99 Twelfthly, the trial judge found that under s 77 of the Motor Accidents Act 1988, damages for nervous shock were recoverable by the Plaintiff because she was the "spouse" of the Deceased who suffered injury in the "motor accident" of 27 February 1993 and "as a consequence" suffered a "demonstrable psychological or psychiatric injury". The trial judge applied the reasoning set out above in concluding that the suicide in 1998 was caused by the Defendant's negligent conduct in 1993. "I am not of the view that the suicide was so far removed in time nor am I of the view that the circumstances surrounding the cross examination broke the chain of causation and for the reasons which I expressed above I am of the view that there was a causal relationship between the accident and the suicide." 100 Thirteenthly, in considering s 3(1) of the Compensation to Relatives Act 1897, the trial judge found that the Deceased's death was "caused" by the Defendant's negligence. The contentions of the Defendant and the Insurer on the appeals 101 The Defendant and the Insurer made certain concessions. Perhaps they were inevitable; but whether they were inevitable or not, they had the advantage of enabling the issues to be narrowed and to be more sharply focussed. They accepted that (a) psychiatric injury was a reasonably foreseeable result of the 27 February 1993 back injury; (b) "but for" that injury there would have been no hearing, no post-hearing depression, and no suicide; and (c) it was a consequence, and a reasonably foreseeable consequence, of the Deceased's suicide that the Plaintiff could suffer nervous shock. 102 Though to some extent the arguments of the Insurer were bound up with arguments advanced in relation to grounds now abandoned, and though the Defendant and the Insurer advanced arguments in separate written and oral submissions, it is convenient to amalgamate the surviving arguments as follows. 103 First, the Defendant and the Insurer challenged the trial judge's finding that the Defendant was aware that the Deceased was susceptible to psychological injury. 104 Secondly, it was submitted that the question was whether damage of the same type or kind which the Deceased ultimately suffered was reasonably foreseeable on 27 February 1993: Kavanagh v Akhtar (1998) 45 NSWLR 588 at 600E-F. It was submitted that the trial judge posed a wrong test in asking whether it was foreseeable that the Deceased might be ignorant of his rights and thus have to apply to extend the time for initiating proceedings. It was conceded that it was foreseeable that psychiatric injury could occur as a result of physical injury, but not that it could occur as a result of the Deceased's reaction to cross-examination. It was said that the trial judge asked too broad a question in asking whether psychiatric injury was a foreseeable consequence of the physical injury. The correct question, given that the physical injury by itself did not cause any psychiatric injury still operating by 24 April 1998, was whether psychiatric injury caused by litigation arising in consequence of the physical injury was foreseeable. A risk of psychiatric injury caused by litigation was no more than far-fetched or fanciful, and hence was not reasonably foreseeable. It was not far-fetched or fanciful that a litigant might be disappointed by the result of proceedings. It was far-fetched or fanciful to foresee that a successful litigant would develop a depressive condition by reason of a litigant's subjective assessment of how that litigant had been treated and how that litigant had performed. That response was a wholly irrational response. It was not the response of a person of normal fortitude. 105 Thirdly, it was submitted that the cause of the psychiatric or psychological condition which led the Deceased to commit suicide was not the negligently caused physical injury of 27 February 1993, but his reaction to the 24 April 1998 hearing. The Deceased had no psychological or psychiatric condition before 24 April 1998; he developed one after that date; the only cause can have been the events at the hearing, not the injury of 27 February 1993; indeed the trial judge found that the "suicide was caused by events which took place during the application for leave and it was that event which triggered the later depression which led to him taking his life"; hence the claim for injury flowing from the suicide was not causatively linked to the 27 February 1993 physical injury. Further, it was submitted that the trial judge erred in concluding that the actions of the Defendant's counsel during cross-examination at the 24 April 1998 hearing had the same effect in law as the actions of the plaintiff's overly protective parents in Nader v Urban Transport Authority of New South Wales (1985) 2 NSWLR 501. It was submitted that in that case the physical accident had materially contributed to the onset of the psychiatric condition (at 530F-531F). Here the sole cause was the Deceased's reaction to questions and submissions at the hearing. On the "commonsense" approach of March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, it was submitted that no causal link existed between the depression and the injury. Though the suicide would not have occurred but for the physical injury, the "but for" test was no longer determinative. It was submitted: "This is not a case where it was submitted that the chain of causation had been broken by some new intervening event: it was, and remains, the [Defendant's] contention that no causal link ever existed between the physical injury and the suicide." It was also submitted that the relationship between the injury and the post-hearing depression was too indirect. It was pointed out that the trial judge did not give reasons for his conclusion that the post-hearing depression was caused by the 27 February 1993 injury. All he did was quote a passage from Mason P's reasons for judgment in Kavanagh v Akhtar (1998) 45 NSWLR 588 at 599 which contained the words "I see no reason why the causal link between the tort and the psychiatric injury was not established." and then say: "The events between which a causal link must be established are the act of negligence and the psychiatric illness which arose as a result of the Deceased's cross examination. When I consider those matters in the context of the scope of the duty of care and when I apply a commonsense approach to the facts of this case I see no reason why the causal link between the tort and the psychiatric injury was not established. Applying the test of commonsense and experience as Mason P did in the extract quoted above, it seems to me clear that the depression which the Deceased suffered after the events of the application and its sequel was caused by the accident and the injuries which the Deceased suffered therein." In truth there was no greater causal connection between accident and depression than a "but for" connection, which was insufficient. 106 Fourthly, it was submitted that the psychiatric or psychological condition which led to the Deceased's suicide was too remote. 107 Fifthly, the Insurer advanced a more radical submission: "There are many plaintiffs in personal injury cases who have psychiatric or psychological conditions, pre-existing or due to the accident. They may react badly to cross-examination, yet it is necessary in the interests of justice that they be cross-examined, and depending upon the [facts], it may be both appropriate and necessary to suggest that they are mistaken, wrong, or even fraudulent. That may well bring adverse reaction by them. It is our submission that the entitlement of a party to cross-examine a witness should not be fettered by a potential liability for damages flowing from that cross-examination." The Insurer in advancing this argument was prepared to assume that the accident caused a psychological condition which existed before the hearing, and deployed it as a means of sidestepping that assumed fact. The argument was in effect a policy argument, and reliance was placed on Rowe v McCartney [1976] 2 NSWLR 72 at 88-89, where Samuels JA discussed the legitimacy of employing policy arguments to limit liability. Reliance was also placed, by analogy, on a defamation case, Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 273 for the proposition that vigorous persistence in a bona fide defence, in the absence of improper or unjustifiable conduct, could not be used to aggravate compensatory damages. The Insurer submitted that there was nothing improper or unjustifiable in the cross-examination employed by the Defendant's counsel on 24 April 1998. 108 Sixthly, the Insurer pointed out that s 77(b) of the Motor Accidents Act 1988 required that the plaintiff's nervous shock be "a consequence of the injury" caused in the motor accident. It argued that it went: "far beyond the intended ambit of the Act to make a motor accident insurer liable for consequences of the suicide of a workman who was injured lifting something off the back of a truck and who committed suicide as a result of cross-examination in an application because of an application out of time to bring his action." It was further argued that s 77 only operates to restrict common law rights, not broaden them. Was the Defendant aware that the Deceased was susceptible to psychological injury? 109 As the trial judge found, the depression which Mr Anning diagnosed in December 1997 had gone by March 1998. The trial judge found that in the weeks before 24 April 1998 there was no evidence of depression or psychiatric illness or disturbance. That was a finding supported by the evidence of Mr Anning and Dr Gertler. In particular, on 13 February 1998 Mr Anning thought that the Deceased was showing "less depression and anxiety" than in December 1997, and on 5 March 1998 the Deceased was observed as appearing to have recovered. 110 The Defendant and the Insurer pointed out that there was no evidence that the Deceased was susceptible to psychiatric injury before 24 April 1998. He had had depression, but he had been cured. The Defendant conceded that it "would have been aware that physical injury to the Deceased's low back could have led to psychological injury", but it submitted that there was no evidence that the Deceased was "generally susceptible to psychological injury". It further submitted that: "The workers compensation claims lodged by [the Deceased] with the [Defendant] made no reference to psychological or psychiatric injury, or any susceptibility to such injury. None of the [Deceased's] treating doctors at any stage notified the [Defendant] that the [Deceased] may have been susceptible to psychological injury." 111 The Plaintiff submitted: "Rehabilitation progress reports were sent to [the Defendant] and GIO, the workers compensation insurer … . The rehabilitation expert, Mr McVicar, had qualifications in psychology. He noted that the Deceased was being treated by Mr Anning, the psychologist … and he was in regular contact with the [Defendant] …. Mr Anning's reports were sent to [the Defendant] during treatment of the [Deceased] … and [the Defendant] paid for Mr Anning's consultations when he treated the [Deceased] …." The Plaintiff submitted orally that "a little too much" had been made of the proposition that the Deceased had recovered by early March 1998; and that Dr Gertler meant only that the Deceased had no depression or other psychiatric problem "immediately prior to" the 24 April 1998 hearing, not that he had never had any. 112 The Plaintiff's summary of the rehabilitation progress reports is sound. However, if "Mr Anning's reports were sent to the" Defendant, it follows that his report of 13 February 1998 was sent, and it reported that the Deceased was showing "less depression and anxiety than when initially seen" and even if Dr Gertler's report is to be read as the Plaintiff would have it read, the fact is that it does not speak of any general susceptibility to psychological injury. 113 The Defendant and the Insurer are correct in their contentions that it has not been shown that the Deceased was in fact susceptible to psychological injury. Even though the Defendant had seen material indicating depression, that material showed that he was improving. And if it has not been shown that the Deceased was susceptible to psychological injury, it cannot be said to have been shown that the Defendant knew that the Deceased was susceptible to psychological injury. However, this conclusion by itself is not decisive since, as the Plaintiff pointed out, the trial judge's finding that the Defendant knew the Deceased was susceptible to psychological injury was not critical to his conclusions on causation and remoteness. 114 In any event, it is an irrelevant question whether the Defendant was aware on 24 April 1998 that the Deceased was susceptible to psychological injury. Even if the Defendant was aware, that date is not the relevant date. It might be the relevant date if the tort relied on was some form of malicious or reckless abuse of process carried out on 24 April 1998, but the tort actually relied on is negligence committed on 27 February 1993. At that date the Defendant knew nothing of any susceptibility to psychological injury. The Plaintiff's nervous shock claim The relevant law in outline 115 In Morgan v Tame (2000) 49 NSWLR 21, Spigelman CJ at [11], in a judgment with which Handley JA agreed, said that the law of Australia was as stated by Hoffmann LJ in Page v Smith [1994] 4 All ER 522 at 549-550: "… (1) Damage caused by mental trauma is a separate head of damage in the law of negligence with its own conditions of liability. (2) The conditions of liability are foreseeability … and causation. (3) Foreseeability means foreseeability of damage caused by mental trauma. Foreseeability of physical injury is neither necessary nor sufficient. (4) The question of whether damage caused by mental trauma was foreseeable is asked with hindsight, in the light of the accident as it actually happened. (5) For the purposes of foreseeability, the plaintiff must be assumed to be a person of normal fortitude. (6) Normal fortitude is a matter of judicial notice and does not require medical evidence or statistical inquiry. (7) If some damage caused by mental trauma was foreseeable and the other conditions of liability are satisfied, the plaintiff is entitled to be compensated for all damage caused by mental trauma, whether its precise nature and extent were foreseeable or not." The traditional questions which arise are three in number. Did the Defendant owe the Plaintiff a duty of care to abstain from conduct which might cause her mental trauma? Did any breach of the duty cause her mental trauma? Was any damage she suffered too remote? Before considering these questions, it is necessary to clear up the precise way in which the relevant law might apply to the facts. The fortitude of the Deceased 116 Hoffmann LJ's fifth proposition was that for the purposes of foreseeability, the plaintiff must be assumed to be a person of normal fortitude. That is amply supported by Australian authority. In Jaensch v Coffey (1984) 155 CLR 549 at 568 Brennan J said: "Unless a plaintiff's extraordinary susceptibility to psychiatric illness induced by shock is known to the defendant, the existence of a duty of care owed to the plaintiff is to be determined upon the assumption that he is of a normal standard of susceptibility." To the same effect are, in the same case, Gibbs CJ at 556 and Deane J at 609-10; in Morgan v Tame (2000) 49 NSWLR 21, Spigelman CJ at [11]-[40] and Mason P at [134]-[137]; and in Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35, Ipp J at [69]. 117 That test poses no difficulties for the Plaintiff so far as her own susceptibility is concerned: it is foreseeable that a person of normal susceptibility whose husband commits suicide in the manner the Deceased did may suffer mental trauma. The Defendant and the Insurer admitted this. But what assumption, if any, is to be employed in relation to the Deceased? 118 If a plaintiff who suffers psychiatric illness induced by shock cannot recover unless that plaintiff is of the normal standard of susceptibility, it would appear to follow that a claim by such a plaintiff whose illness is caused by the suicide of a third party in consequence of a psychiatric illness allegedly flowing from the defendant's tort must be determined on the assumption that the third party was of the normal standard of susceptibility. 119 That conclusion is supported by the reasoning which the courts have advanced to justify the rule that the plaintiff must be assumed to be a person of normal fortitude. 120 In Jaensch v Coffey (1984) 155 CLR 549 at 568, before enunciating that rule, Brennan J said: "reasonable foreseeability is an objective criterion of duty, and a general standard of susceptibility must be postulated. At least to that extent it is possible to confine consideration of the question whether it is reasonably foreseeable that the perception of a particular phenomenon might induce in the plaintiff a psychiatric illness." If it follows from the fact that reasonable foreseeability is an objective criterion of duty that a plaintiff's mental trauma must be foreseeable in a person of normal susceptibility, it must also follow that where the mental trauma of a plaintiff is caused by the suicide, induced by mental trauma, of a third person the mental trauma of that third person is only reasonably foreseeable by the defendant if the third person is assumed to be a person of normal susceptibility and mental trauma in such a person is reasonably foreseeable. 121 In Morgan v Tame (2000) 49 NSWLR 21 at [28] Spigelman CJ quoted the following words from the dissenting speech of Lord Griffiths in White v Chief Constable of South Yorkshire [1999] 2 AC 455 at 462: "The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals." If the law expects reasonable fortitude and robustness of those of its citizens who are plaintiffs, there is no reason why the law does not have the same expectation of those whose mental trauma is a link between the negligence of the defendant and the mental trauma of the plaintiff. 122 In Morgan v Tame (2000) 49 NSWLR 21 at [31] Spigelman CJ said the rule was "a viable and justifiable restriction on the scope of liability for psychiatric injury". At [137] Mason P treated the rule as "an additional control device - none the worse for that …." Some reasons why the courts have attempted to restrict liability are conveniently stated in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 493-4 per Lord Steyn, Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [48]-[51] per Ipp J and Francis Trindade and Peter Cane, The Law of Torts in Australia (3rd ed, 1999, OUP) pp 357-361. If it is justifiable for various reasons to control the liability of defendants by restricting it only to mental trauma caused to plaintiffs assumed to have normal fortitude it must be equally justifiable to control the liability of defendants, where the link between their torts and the plaintiff's injury is mental trauma in a third party, by assuming the third party to be of normal fortitude. 123 Accordingly the fact that no finding can be made that the Plaintiff was susceptible to psychological injury or that the Defendant knew this means that the foreseeability inquiry must be made on the assumption that the Deceased was of normal susceptibility. 124 Thus an essential question which arises is: was it foreseeable that the Deceased, assuming him to have been a person of normal standards of susceptibility, could suffer from depression in consequence of litigation resulting from the accident of 27 February 1993? That assumption can call for quite high standards. Thus it has been found difficult to accept that it is reasonably foreseeable that a parent of normal fortitude might sustain psychiatric injury (as distinct from deep grief and sadness) on being informed of the death of a sixteen year old child (Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [85] per Ipp J). What had to be foreseeable - the risk of the Deceased contracting depression or the risk of the depression inducing suicide? 125 One relevant finding of the trial judge was: "Suicide caused by severe depression arising out of cross-examination during an application for leave to extend time was in my view damage of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act of the employer." That finding is not entirely clear. It is not clear whether the trial judge found that severe depression was foreseeable, and hence that the Defendant was liable for damage caused by the suicide that resulted from the severe depression, or whether he found that the suicide was foreseeable. The former construction is supported by an earlier finding: "the 1993 incident was a legal cause of the depression and consequent suicide because it materially contributed to the onset and continuation of the severe depression. Psychiatric illness of some kind was reasonably foreseeable as a consequence of the physical injuries which the Deceased suffered and it does not matter that the severe depression and suicide was of rare occurrence." 126 In the law of negligence generally there are statements and decisions favourable to plaintiffs which decline to narrow down too closely the application of the requirement of foreseeability to call for identification of the precise mode by which damage is caused. For example, where injury to children by burning from a paraffin lamp carelessly left lying around was reasonably foreseeable, it was held that injury by burning in consequence of an explosion after the plaintiff knocked the lamp into a manhole was also reasonably foreseeable: Hughes v Lord Advocate [1963] AC 837. 127 The application of those principles in the field of negligently caused nervous shock is limited. There are dicta in mental trauma cases otherwise requiring more precise foreseeability of the course of events than is required in non-mental trauma cases. 128 Thus in Jaensch v Coffey (1984) 155 CLR 549 at 572 Brennan CJ said: "In each case where causation is established, the question of fact is whether it was reasonably foreseeable by the defendant that his conduct might bring about a phenomenon the sudden perception of which by the plaintiff or by a class of which the plaintiff is a member might induce a psychiatric illness, assuming the plaintiff or the members of that class to be of a normal standard of susceptibility." The Plaintiff here suffered a psychiatric illness which was brought about by her "sudden perception", by hearing and sight, of the Deceased's suicide on 2 May 1998. The psychiatric illness she suffered was not brought about by her perception of the depression from which the Deceased began to suffer on 24 April 1997 or soon after. Even if it is assumed that it was reasonably foreseeable to the Defendant on 27 February 1993 that the state of affairs which caused the accident to the Deceased might induce depression, and depression arising out of litigation to do with the accident, it is a different question whether the "phenomenon" of suicide as a result of that depression was reasonably foreseeable. 129 Brennan J also dealt with the problem at 570: "When the scene of an accident is left behind, and the perception of some later phenomenon induces a psychiatric illness in a plaintiff, the factual difficulties in the way of establishing negligence occasioning nervous shock are greatly increased though the principles are unchanged. The occurrence or existence of the later phenomenon, its sudden perception by the plaintiff and the inducing of the plaintiff's psychiatric illness must be proved to be the results, and the reasonably foreseeable results, of the defendant's conduct. But the separation in time and distance of the later phenomenon from the immediate consequences of the defendant's conduct may make it difficult to prove the elements of causation and reasonable foreseeability as they apply in cases of nervous shock." Here the relevant "accident" took place on 27 February 1993. What induced a psychiatric illness in the Plaintiff was the perception of the Deceased's suicide. The suicide was the "later phenomenon". According to Brennan J, it is the "occurrence or existence of the later phenomenon" - the suicide, not the depression - which must be proved to be one of "the reasonably foreseeable results of the Defendant's conduct". 130 There is another way of putting the same point as follows. In Jaensch v Coffey (1984) 155 CLR 549 at 567 Brennan J said that what the plaintiff can recover for is a perception "of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognisable psychiatric illness." Even if it is assumed that the onset of depression as a consequence of litigation about the 27 February 1993 accident was reasonably foreseeable, it was not depression alone which caused the Plaintiff's mental trauma. The Deceased's depression was no doubt, particularly to his wife, a distressing fact. But it was not so distressing that the perception of the phenomenon affronted or insulted the Plaintiff's mind and caused a psychiatric illness. What did that was the suicide. It was the suicide which had to be reasonably foreseeable. 131 However, the consideration of foreseeability below will proceed on the basis that either foreseeability of depression caused by litigation or foreseeability of suicide induced by depression caused by litigation will suffice. Does reasonable foreseeability of injury-induced depression entail reasonable foreseeability of litigation-induced depression? 132 The trial judge said: "the 1993 incident was the legal cause of the depression and consequent suicide because it materially contributed to the onset and continuation of the severe depression. Psychiatric illness of some kind was reasonably foreseeable as a consequence of the physical injuries which the Deceased suffered and it does not matter that the severe depression and suicide was of rare occurrence." The second sentence conflates, on the one hand, psychiatric illness which was a reasonably foreseeable consequence of, for example, the pain associated with the effects of the 27 February 1993 accident and, on the other hand, psychiatric illness wholly unconnected with the physical damage caused by the 27 February 1993 accident but connected with a reaction to the litigation. To conclude, or as the Defendant and the Insurer did, to concede, that the former is reasonably foreseeable does not justify a conclusion that the latter is reasonably foreseeable. It is too crude and loose to reason: "some kind of psychiatric illness was foreseeable in consequence of the Deceased's physical injuries, therefore this kind of psychiatric illness was foreseeable". There is no analogy with the readiness of the law to assume that when a particular type of physical injury such as burning is foreseeable, burning however caused is foreseeable. For one thing, in cases like Hughes v Lord Advocate whatever type of burning took place would take place at the moment when the first damage was caused; in the present case the different forms of damage took place at widely separated times and in different circumstances. For another thing, principles applicable to physical injury are only to be transferred to mental trauma with extreme caution. 133 The language of the trial judge is consistent with the reasoning in, and is appropriate for cases like, Pigney v Pointers Transport Services Ltd [1957] 2 All ER 807; [1957] 1 WLR 1121. In that case it was held that where an accident caused a worker to suffer from acute neurotic depression (which may have been reasonably foreseeable) and where he hanged himself in a fit of that depression (which was not), the defendant was liable for the effects of the suicide under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1846. There are two reasons why that case is inapplicable here. First, that case is different from the present, and language appropriate to that case is not appropriate to the present. Depression caused by the physical effects of an injury (and what flows from the depression) is a radically different thing from depression caused by litigation about the consequences of that injury in damages (and what flows from that depression). The phenomena, and the types of damage involved, are quite distinct. The former type of depression is much more closely associated with the physical injury than the latter. Secondly, even if Pigney's case cannot be distinguished, Pilcher J said that "the death of the deceased was not the kind of damage that one would expect to result from the injury he received" (at 810) and was "a matter which could not reasonably have been foreseen" (at 809). He sidestepped these difficulties by citing Scrutton LJ's denial that the difference in the kinds of damage was relevant and his statement of the direct causation test in Re Polemis & Furness, Withy & Co [1921] 3 KB 560 at 577. That test is no longer good law in this country and the ratio of Pigney's case is thus now invalid. There was veiled criticism of it in Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9 at 21-22. 134 It is common to cite Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 for the proposition that if some mental disorder is foreseeable as the result of a tort, the defendant is liable for whatever disorder eventuates even though the precise form of it is of rare occurrence and is not foreseeable. In that case the plaintiff developed an extremely unusual form of schizophrenia. Windeyer J said at 402: "Liability for nervous shock depends on foreseeability of nervous shock. That, not some other form of harm, must have been a foreseeable result of the conduct complained of. The particular pathological condition which the shock produced need not have been foreseeable. It is enough that it is a 'recognisable psychiatric illness'." That reasoning is not applicable here. It was reasonably foreseeable that as a result of the 27 February 1993 accident the Deceased might suffer mental trauma by reason of the effects of his back injury. The Defendant would be liable to him for any mental trauma arising from the effects of the back injury even if the particular condition was very rare. But it does not follow that the Defendant is necessarily liable to him for mental trauma triggered by litigation where the only connection between that mental trauma and the accident is that the litigation was about the quantum of damages payable to the Deceased for the back injury and the mental trauma that briefly flowed from the back injury, let alone that the Defendant is liable to the Plaintiff by reason of the Deceased's litigation-triggered mental trauma. 135 Rowe v McCartney [1976] 2 NSWLR 72 is a decision of this Court which, though not on all fours with the present, may substantially qualify the supposed principle that if psychiatric illness of some kind is foreseeable, a defendant is liable for all psychiatric illness connected with an accident. The owner of a motor car reluctantly permitted a friend to drive it. The friend negligently hit a telegraph pole and rendered himself a quadriplegic. The owner suffered less severe physical injuries for which he recovered damages. The owner was not permitted to recover in relation to a depressive neurosis arising from having let the friend drive. Yet unquestionably it was reasonably foreseeable that once the plaintiff was physically injured in the accident she might suffer a psychiatric illness of some kind. The majority dismissed an appeal. Moffitt P did so on the basis that the illness arose from the plaintiff's own antecedent conduct which was not a cause of and was not caused by the accident, and the illness was not physical damage inflicted by the driver's negligence, psychiatric damage arising from that physical damage, or psychiatric damage arising from relevant nervous shock. At 75 he said: "psychiatric damage arising from circumstances external to the trauma caused by the negligent act can … be classified according to the kind of chain that links the damage with the negligent act, to the intent that the kind of chain must be examined to see if damage occurring in this kind of way was foreseeable." (emphasis added) 136 Samuels JA said at 89-90: "It is necessary, first, to characterize the nature of the harm which the plaintiff did suffer - held in this case to have been unforeseeable - in order to determine whether that harm can reasonably be included in a wider, more general and foreseeable category. The harm which she sustained as a result of the events which happened was the onset of a complex or obsessive feeling of guilt or remorse which manifested itself symptomatically in a depressive illness. No doubt the feeling of guilt was a neurotic reaction to the circumstances, and was thus a mental illness. But I do not consider it to be an adequate answer to the present problem merely to seize upon that description, and allot the plaintiff's damage, without more, to the category of foreseeable harm. I do not see anything in Mount Isa Mines Ltd v Pusey [(1970) 125 CLR 383], for example, which compels such a step; indeed, Windeyer J's reasoning [(1970) 125 CLR 383 at pp 402, 403] tends the other way. Certainly, if the infliction of a feeling of guilt was foreseeable, as the infliction of emotional shock was in Mount Isa Mines Ltd v Pusey [(1970) 125 CLR 383], then the nature of the sequential symptoms would not be determinative; it would not matter what kind of psychiatric disability followed. But the question here, of course, is whether that initial injury was indeed foreseeable. The learned judge found that it was not, and that conclusion is not open to challenge. However, he did fail, with respect, to make the next inquiry: so it is thus necessary for me to decide whether the feeling of guilt was harm of a kind which was foreseeable. I do not think that it was. Granted that the harm suffered might be designated as mental illness and that mental illness was foreseeable, I take the view that, in this case, it is necessary and legitimate to penetrate the categories more closely. The plaintiff's agreement to let the defendant drive was a relevant cause of the harm in fact suffered, but was, or would have been, causally irrelevant to the mental damage which the defendant ought to have foreseen. The harm suffered was, in my opinion, of an entirely different kind from that to which the defendant ought reasonably to have had regard as a likely consequence of his negligence." 137 In Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 at 535 McHugh JA said that the ratio decidendi of Rowe v McCartney was as follows: "What it decides is that mental illness as the result of irrational guilt feelings and with only a 'tenuous connection' with the defendant's negligence is damage different in kind from mental illness arising from an ordinary car accident." He continued (at 535-536): "It is a mistake in my opinion to see the case as deciding that mental illness as the result of guilt feelings is damage different in kind from mental illness arising from nervous shock or as the result of or in association with physical injuries. The case is not an authority for the proposition that mental illness per se can be divided into categories. To so hold would be quite inconsistent with what Windeyer and Walsh JJ said in Mount Isa Mines Ltd v Pusey . Rowe v McCartney belongs to the class of case of which Doughty v Turner Manufacturing Co Ltd is a member. The damage is different in kind because of the manner in which it was caused. Although there was a causal connection between the plaintiff's mental illness and the accident, the majority in Rowe v McCartney saw the part played by the accident as so tenuous as to make the mental illness a different kind of damage. The mental illness was not associated with or the result of any injuries which the plaintiff received in the accident. The difference between Rowe v McCartney and Hoffmueller v Commonwealth [(1981) 54 FLR 48] is that, while in the latter case another cause (pre-existing obsessional personality) was operative, the defendant's negligence had more than a 'tenuous connection' with his mental illness. In Rowe the other cause (irrational guilt feelings) was so predominant that the proper conclusion was that the damage was different in kind from mental illness as the result of a motor car accident. The decision in Rowe is distinguishable from the present case." At 533 McHugh JA explained Doughty v Turner Manufacturing Co Ltd as follows: "according to the decision in Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518, even when the damage is of the same kind as that which was reasonably foreseeable as a result of the defendant's negligence, the action may still fail. It will fail if the manner in which the damage occurred was not reasonably foreseeable in a general way. This is because the damage which occurred is not within the ambit of the risk of harm arising from the defendant's careless act or omission. In Doughty the Court of Appeal held that, if the foreseeable risk of injury from allowing a cover to fall into a cauldron of hot molten liquid was burning by splashing, the defendant was not liable for burning by splashing by an unforeseeable explosion caused by the cover falling into the liquid. Nevertheless, it is only when the damage can be said to be the result of a completely different 'accident' that it will be outside the foreseeable risk of harm: Hughes v Lord Advocate [1963] AC 837." At 506 Samuels JA agreed that the ratio ascribed to Rowe v McCartney by McHugh JA was correct. He said: "I do not think that Rowe should be assigned to any category of cases in which recovery failed because the sequence of events between breach and damage was not foreseeable. In Rowe it was wholly predictable. The essential problem was not that the manner in which a known source of danger materialized was unforeseeable. It was that the source of danger was unknown. It was not the defendant's negligence but the plaintiff's assent to his driving her car. The ratio of the case, as suggested by Professor Fleming (op cit at 149) is: ' … that being a passenger and being herself injured was unrelated to [the plaintiff's] neurosis, so that the proper test was not whether some shock by a passenger, but rather whether shock from feelings of guilt, was foreseeable.' It is much the same as that advanced by Professor Luntz in his Assessment of Damages , 2nd ed (1983) at 124 and see Rowe (at 76, 87 and 90). There are, incidentally, statements in Jaensch v Coffey (1984) 58 ALJR 426; 54 ALR 417 which intersect with Professor Luntz's point (see per Deane J at 450; 460 and per Dawson J at 453; 465). The ratio is succinctly expressed by McHugh JA in his judgment (at 535E) in the present case in terms with which I would respectfully agree: 'What [ Rowe ] decides is that mental illness as the result of irrational guilt feelings and with only a 'tenuous connection' with the defendant's negligence is damage different in kind from mental illness arising from an ordinary car accident.' I do not consider that that formulation offends anything said in Mount Isa Mines Ltd v Pusey . What was foreseeable in Mount Isa Mines Ltd v Pusey was mental disturbance caused 'by the sight of a burning or recently burnt human' (per Barwick CJ at 389). It was the precise kind, or extent, of a mental disturbance so caused which was in issue. Suppose, however, that the plaintiff in Mount Isa Mines Ltd v Pusey had himself persuaded the victim to take the job at which he was fatally injured: and had developed schizophrenia not by reason of the shock at seeing the consequences of the accident, but because of remorse or guilt at having put his friend in the way of his death. That would have raised the essential point in Rowe's case; and I venture to think that a similar result would have ensued." 138 While on the one hand McHugh JA denies that different mental illnesses can be divided into "kinds" or "categories", both he and Samuels JA saw damage in the form of mental illness caused by the car accident as different from damage in the form of mental illness caused by irrational guilt feelings about the origins of the car accident. In terms of foreseeability they saw the crucial issue as being whether shock consequent on physical injury on the happening of the accident was foreseeable or whether in addition shock from feelings of guilt was. In terms of causation, what Rowe v McCartney decided was that the particular psychiatric illness was not relevantly related to the accident, despite the fact that it would not have occurred had the accident not happened. Similar inquiries are called for here. They reveal that it is not enough to find merely that psychiatric illness "of some kind" was foreseeable as a result of the physical injuries which the Deceased suffered on 27 February 1993. The unusual nature of the case 139 There is only "a tiny handful of non-employment, non-physical accident cases where a duty of care" not to cause harm by nervous shock has been found: Morgan v Tame (2000) 49 NSWLR 21 at [26] per Mason P. This is an employment case, but only in a special sense. It is also a physical accident case, but again only in a special sense. It is a highly unusual case, because it depends on liability for mental trauma caused to the Plaintiff by reason of mental trauma caused to the Deceased. This background reveals the difficult nature of the enterprise which the Plaintiff undertook. The difficulty is increased by the fact, as Lord Hoffmann said in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 at 368: "a duty to protect a person of full understanding from causing harm to himself is very rare indeed". Liability for nervous shock depends on foreseeability of nervous shock. But it is not enough that it was foreseeable that if the Plaintiff came upon the Deceased just after the 27 February 1993 accident she might have been shocked. Just as in Mount Isa Mines Ltd v Pusey the question was "whether there was a real risk that a foreseeable accident such as occurred would cause a man in the powerhouse to suffer a nervous shock having lasting mental consequences" (at 403), so here the question is whether there was a real risk that a foreseeable accident such as occurred at the Deceased's place of work on 27 February 1993 at a time when the Plaintiff was not there and was not in a position to perceive either the accident or its aftermath would cause the Plaintiff to suffer nervous shock. It is clear that the Defendant would not be liable for nervous shock suffered by the Plaintiff either on being told of the accident or on being told of the Deceased's suicide: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 407; Jaensch v Coffey (1984) 155 CLR 549 at 567; Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [105]-[110]. What is novel about the present case is that the Plaintiff's nervous shock did not have a close temporal and geographical connection with the physical injury immediately resulting from the Defendant's tort, or with the consequences of any depression arising as part of that physical injury. The Plaintiff's nervous shock resulted from a physical injury suffered by the victim of the tort, but a self-inflicted one, and one occurring five years later by reason of a psychiatric illness arising in response to a stimulus which was quite different from the physical injury suffered by the victim of the tort, though the stimulus would not have existed but for the happening of that physical injury. The irrelevance of the nature of the litigation to which the Deceased reacted 140 In a case like the present, it does not matter that the depression was caused by the reaction of plaintiffs to a hearing about extending the time for starting proceedings, or their reaction to an interlocutory hearing during the proceedings once started, or their reaction to the trial of those proceedings, or their reaction to a step taken during an appeal from orders made at the end of the trial. It does not matter that the depression was caused by the reaction of plaintiffs to compulsory attendance upon medical experts selected by a defendant's insurer. It does not matter that the depression was caused by investigators taking films. Nor does it matter that the depression was caused by worry about costs orders. So far as the submissions against the Plaintiff in this appeal attempted to characterise what happened as not reasonably foreseeable because the Deceased's failure to sue within three years added another layer of complication to the circumstances, they fail. His failure to sue within three years was reasonably foreseeable. So was the possibility that he might be cross-examined aggressively, that his answers might be cut off, that he might experience confusion and embarrassment, that critical remarks might be made in address which were hurtful to him, that he might worry about his powers of memory and articulation, and that he might be concerned about adverse costs orders. But all these possibilities could arise as much at the trial of proceedings started within time as they could on an application to extend the time for starting proceedings. One critical question is whether his reaction to the typical events of litigation, whether started within time or not, was reasonably foreseeable. Another is whether, given the reaction he suffered, it can be said that in law the Defendant's negligence caused the Plaintiff's injuries. The nature of the inquiry 141 The liability of the Defendant depends on whether the Plaintiff can establish a duty of care (for which reasonable foreseeability is at least a necessary condition), breach (which would be readily inferred if there were a duty), causation and an absence of remoteness. In Jaensch v Coffey (1984) 155 CLR 549 at 571-2 Brennan J said that issues of reasonable foreseeability, causation and remoteness: "are all questions of fact, but they are questions of impression and degree which cannot be directly proved by evidence of what is too remote and what is not, of what is reasonably foreseeable and what is not. They are matters of judgment for the jury or, where there is no jury, for the judge. Hence Lord Wright in Bourhill v Young [1943] AC 92 at 110, in answer to the question where the thing is to stop, replied that 'it should stop where in the particular case the good sense of the jury or of the judge decides'. The stopping point is not to be defined as a proposition of law, nor are new principles to be invented to stop the thing going too far …. … The thing will stop where good sense in the finding of facts stops it …. Of course, the room for judgment is manifest as it always is in the evaluation of facts, but that provides no warrant for introducing new criteria to limit liability." In Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 398-9, Windeyer J said: "Whether at some time in the past the prospect of the happening of an event which in fact happened was such that it created an obligation to take precautions against it is called a question of fact. It is really a value judgment upon ascertained facts." In Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [7], Malcolm CJ said: "The question of reasonable foresight is more than a question of fact because it involves a value or qualitative judgment about the standard of reasonableness of human behaviour or capacity." 142 Because direct admissible evidence of foreseeability, causation and remoteness can be difficult to obtain, and indeed was entirely absent from the present case; because the inquiry depends on matters of impression and degree; because the analysis ultimately turns on the application of "good sense" in the finding of facts; and because the analysis also involves a "value judgment upon ascertained facts" - a "qualitative judgment", it is not easy to give reasons for arriving at particular conclusions which are either lengthy or explicit. Did the Defendant owe the Plaintiff a duty of care? 143 So far as the Plaintiff's claim for nervous shock is concerned, it is necessary for her to establish that the Defendant owed a duty to take reasonable care to avoid causing reasonably foreseeable injury in the form of mental trauma to the Plaintiff. That is because the Defendant caused no physical injury to the Plaintiff's body, no physical injury to the Plaintiff's property, and no financial injury to the Plaintiff's financial position. The damage to the Plaintiff was "pure" psychiatric damage; the damage to the Deceased flowing from the hearing was also "pure" psychiatric damage in the sense that though the 27 February 1993 accident had caused depression, the Deceased had overcome that depression. Assuming that psychiatric injury occasioned to the Plaintiff by her shock at the Deceased's death was "caused" by the Defendant, did the Defendant owe a duty to take reasonable care to avoid it? 144 So far as the Plaintiff's nervous shock claim is concerned, the problem raised by this case is analogous to the problem in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383. In this case, while the Defendant plainly owed a duty to the Deceased to prevent injury to him, it is a question whether it owed a duty to the Plaintiff to prevent an injury to her in consequence of an injury to him. Similarly, in Mount Isa Mines Ltd v Pusey, where two electricians were badly injured, and shortly afterwards died, by reason of their mishandling of a multi-meter while testing a powerhouse switchboard, and by reason of their employer's failure to instruct them properly in its use, there was little doubt that the employer owed them a duty of care, but it was a question whether it owed a duty to the plaintiff, who worked on a different floor and who contracted schizophrenia after coming to the aid of one of the electricians. At 397 Windeyer J said: "Foreseeability here predicates the foresight of a reasonable man. The reasonable man is not here anyone on the Clapham omnibus. He is a man who notionally stood in the shoes of the defendant and had such knowledge, and capacity for care and foresight, as that defendant actually had and in addition such as a reasonable man in that position is expected to have. He is, in the words of Lord Wright in Bourhill v Young [1943] AC 92 at 111, 'a reasonable hypothetical observer'. He is not a seer who can foretell future occurrences that are quite unlikely according to the natural and ordinary course of events. Happenings that were fortuitous, in the sense that no reasonable man would have thought of them as within the range of possible consequences, cannot be said to have been reasonably foreseeable. And knowledge after the events, when it is easy to be wise, cannot shew that the event was foreseeable. Fullagar J spoke of this in Rae v Broken Hill Pty Co Ltd (1957) 97 CLR 419 at 422: 'The fact of the happening of the accident is, of course, itself a relevant consideration, but, in considering whether it ought to have been foreseen, it is wrong to take as the standard of comparison a person of 'infinite resource-and-sagacity'.'" 145 Was either the suicide or the depression reasonably foreseeable on this test? That is a question on which expert evidence imparting information about the state of contemporary medical knowledge could have been admissible: Morgan v Tame (2000) 49 NSWLR 21 at [130]. But none was tendered. Apart from the historical evidence of the Deceased's general medical practitioner, Dr Vesey, and his orthopaedic surgeon, Dr Stening, about their observations of the Deceased, the evidence consisted only of Mr Anning's evidence of his treatment of the Deceased for depression and the evidence of Dr Gertler, who never saw the Deceased, as to what caused his death. 146 The Deceased's suicide in response to the proceedings was "quite unlikely according to the natural and ordinary course of things". It was a fortuitous event, because no reasonable person would have thought of it as being within "the range of possible consequences" after the 27 February 1993 accident for a person of normal susceptibility. The same is true of the Deceased's depression after 24 April 1998. 147 Counsel for the Plaintiff knew of no instance in his experience when a party to litigation had committed suicide in consequence of the manner in which that party was treated by the legal representatives of an opposing party. The law reports reveal no instance of a plaintiff in civil litigation doing this. Nor do they reveal any case in which a plaintiff in civil litigation developed a psychiatric illness by reason of the behaviour of the opposing legal representatives. Since these events happened in this case, they are obviously capable of having been foreseen, in the sense that they were not beyond the realms of all possibility in relation to a person of the Deceased's susceptibility. But they were not reasonably foreseeable for a person of normal susceptibility. They were reactions to the hearing, but irrational reactions. They were reactions beyond what a person in the Defendant's position on 27 February 1993, applying criteria of reason to a person of normal fortitude, would contemplate. In ordinary experience people of normal fortitude only commit suicide because they are suffering great physical, mental or emotional stress. Litigation generates stress of a kind in persons of normal fortitude, but not stress of a magnitude or kind making either suicide or a psychiatric illness a reasonably foreseeable response. Litigation can generate disappointment, outrage, distress, worry, anxiety, anger and shame in persons of normal fortitude, but these reactions are qualitatively different from psychiatric illness or suicide: Morgan v Tame (2000) 49 NSWLR 21 at [32] per Spigelman CJ. 148 In Donoghue v Stevenson [1932] AC 562 at 580, Lord Atkin said: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." It cannot be said of the Defendant, when it carried out the acts and made the omissions that caused the accident to the Deceased on 27 February 1993, that it ought reasonably to have had the Plaintiff in contemplation when directing its mind to those acts or omissions. It cannot be said that it could "reasonably foresee" that those acts or omissions would cause the Plaintiff to suffer injury because of the Deceased, assuming him to have been a person of normal fortitude, either suffering depression or being at risk of committing suicide in consequence of depression. It was not foreseeable that the Plaintiff would have witnessed the condition of the Deceased or the sight of the accident of 27 February 1993 immediately after it happened, and in any event this was not how her mental trauma was triggered. It was foreseeable that she might witness his distressed condition in hospital or on arrival at home, but his condition immediately after the accident did not cause him to go to hospital, and his condition on arrival at home was not such as to cause her mental trauma. 149 Assuming the Deceased to have been a person of normal fortitude, and conceding that for a person of normal fortitude depression and suicide may have been remote possibilities, neither was a "real risk", and foreseeability of a remote possibility is not enough to establish reasonable foreseeability: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 52-53 per Wilson J. Each possibility was no more than "a fantastic or far-fetched possibility" as distinct from a "real risk": Wyong Shire Council v Shirt (1980) 146 CLR 40 at 46 per Mason J. 150 For the above reasons, the Defendant did not owe the Plaintiff a duty to take care to avoid the risk of mental trauma to her arising by reason of the accident of 27 February 1993 causing the Deceased to suffer from depression, or by reason of his committing suicide in consequence of that depression. Causation 151 It has been noted that the Defendant and the Insurer accepted that "but for" the 27 February 1993 back injury there would have been no hearing of the Deceased's application to extend the limitation period, no depression suffered by the Deceased after that hearing, and no suicide in consequence of that depression. But causation does not depend solely on a "but for" test. On what criteria does it depend? They are stated in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. In that case Mason CJ (with whom Toohey and Gaudron JJ agreed) said that the "but for" test was not definitive; that causation was a question of fact; but that it was a question of fact into which considerations of policy and value judgments necessarily entered. He suggested at 510 that traditional formulae about "direct" consequences, or "natural and probable consequences", or "direct and natural consequences", or "proximate" causes or "real effective" causes concealed "the making of value judgments or reliance on unexpressed policy reasons for refusing to allow liability to extend to the damage sustained in particular cases". At 515-516 he said: "The common law tradition is that what was the cause of a particular occurrence is a question of fact which 'must be determined by applying common sense to the facts of each particular case', in the words of Lord Reid: [ Stapley v Gypsum Mines Ltd [1953] AC 663 at 681] …. It is beyond question that in many situations the question whether Y is a consequence of X is a question of fact. And, prior to the introduction of the legislation providing for apportionment of liability, the need to identify what was the 'effective cause' of the relevant damage reinforced the notion that a question of causation was one of fact and, as such, to be resolved by the application of common sense. Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact - to be determined by the application of the 'but for' test - and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing: see e.g., Fleming, Law of Torts , 7th ed. (1987), pp. 172-173; Hart and Honoré, Causation in the Law , 2nd ed. (1985) p. 110. It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments: see Fleming, p. 173. However, this approach to the issue of causation (a) places rather too much weight on the 'but for' test to the exclusion of the 'common sense' approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn [(1954) 91 CLR 268 at 277] 'it is all ultimately a matter of common sense' and '[i]n truth the conception in question [i.e. causation] is not susceptible of reduction to a satisfactory formula' [(1954) 91 CLR 268 at 278]. That said, the 'but for' test, applied as a negative criterion of causation, has an important role to play in the resolution of the question. So much was conceded by Dixon CJ, Fullagar and Kitto JJ in Fitzgerald v Penn [(1954) 91 CLR 268 at 276-277] in their discussion of the unreported decision of this Court in Skewes v Public Curator (Qld) (6 September 1954) where A and B were driving their vehicles at excessive speeds in conditions of poor visibility so that their vehicles collided. A was on his correct side of the road, B was not. A's negligence was not causative of injury. Their Honours pointed out that, had the action been tried by a jury, it would have been correct for the judge to instruct the jury 'to ask themselves the question whether they were satisfied that the collision would not have taken place with the same results if driver A had been driving at a reasonable speed'. See also ICIANZ Ltd v Murphy [(1973) 47 ALJR 122 at 127-128]; Duyvelshaff v Cathcart & Ritchie Ltd [(1973) 47 ALJR 410 at 414-417, 419; 1 ALR 125 at 134-135, 138, 142-143]. The commentators acknowledge that the 'but for' test must be applied subject to certain qualifications. Thus, a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury, unless the risk of the accident occurring at that time was greater: see Hart and Honoré, at p. 122. As Windeyer J observed in Faulkner v Keffalinos [(1970) 45 ALJR 80 at 86]: 'But for the first accident, the [plaintiff] might still have been employed by the [defendants], and therefore not where he was when the second accident happened: but lawyers must eschew this kind of 'but for' or sine qua non reasoning about cause and consequence.' The 'but for' test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The application of the test 'gives the result, contrary to common sense, that neither is a cause': Winfield and Jolowicz on Tort , 13th ed. (1989), p. 134. In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury: see e.g., Chapman v Hearse; Baker v Willoughby [[1970] AC 467]; McGhee v National Coal Board; M'Kew (to which I shall shortly refer in some detail). The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations." He continued (at 517-519): "In similar fashion, the 'but for' test does not provide a satisfactory answer in those cases in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation which would otherwise have resulted from an earlier wrongful act. Many examples may be given of a negligent act by A which sets the scene for a deliberate wrongful act by B who, fortuitously and on the spur of the moment, irresponsibly does something which transforms the outcome of A's conduct into something of far greater consequence, a consequence not readily foreseeable by A. In such a situation, A's act is not a cause of that consequence, though it was an essential condition of it. No doubt the explanation is that the voluntary intervention of B is, in the ultimate analysis, the true cause, A's act being no more than an antecedent condition not amounting to a cause. But this explanation is not a vindication of the adequacy of the 'but for' test. The facts of, and the decision in, M'Kew [1970 SC (HL) 20] illustrate the same deficiency in the test. The plaintiff would not have sustained his ultimate injury but for the defendant's negligence causing the earlier injury to his left leg. His subsequent action in attempting to descend a steep staircase without a handrail in the normal manner and without adult assistance resulted in a severe fracture of his ankle. This action was adjudged to be unreasonable and to sever the chain of causation. The decision may be explained by reference to a value judgment that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant's wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff. But in truth the decision proceeded from a conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action. The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk: see Chomentowski v Red Garter Restaurant Ltd [(1970) 92 WN (NSW) 1070]. To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content. It has been said that the fact that the intervening action was foreseeable does not mean that the negligent defendant is liable for damage which results from the intervening action: see Chapman v Hearse [(1961) 106 CLR 112 at 122]; M'Kew [1970 SC (HL) 20 at 25]; Caterson v Commissioner of Railways [(1973) 128 CLR 99 at 110]. But it is otherwise if the intervening action was in the ordinary course of things the very kind of thing likely to happen as a result of the defendant's negligence. In Dorset Yacht [[1970] AC 1004 at 1030], Lord Reid observed: 'But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortious or criminal. Unfortunately, tortious or criminal action by a third party is often the 'very kind of thing' which is likely to happen as a result of the wrongful or careless act of the defendant.' Much the same approach was adopted by this Court in Caterson where Gibbs J [(1973) 128 CLR 99 at 110] (with whom Barwick CJ, Menzies and Stephen JJ agreed) pointed out that, if the plaintiff's action in jumping from the train was, in the ordinary course of things the very kind of thing likely to happen as a result of the defendant's negligence and was not unreasonable, the jury was entitled to find that the plaintiff's injuries were caused by the defendant's negligence. The finding that the plaintiff's action was not unreasonable was then essential to that conclusion because contributory negligence was a defence in New South Wales at the relevant time. See also Chapman v Hearse [(1961) 106 CLR 112 at 124-125]; and note the reference in Mahony [(1985) 156 CLR 522 at 529], to the acceptance by Gibbs J in Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd [(1975) 132 CLR 323 at 329-330], of the suggestion that, if a pedestrian were run over by two drivers consecutively and both were negligent, the injuries caused by the second driver would be damage for which both drivers were liable if those injuries were also the foreseeable consequence of the first driver's negligence. As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the 'but for' test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it." 152 These tests raise several queries in relation to the present facts. The Defendant behaved negligently; this set the scene for the Deceased to sue the Defendant, to suffer depression and to commit suicide; the Defendant's negligent behaviour was in that sense an essential condition for the Deceased's depression and suicide. But was it a "cause" of those consequences? As a matter of value judgment, is it just to hold the Defendant legally responsible for an injury to the Plaintiff which, though it can be traced back to the Defendant's wrongful conduct, was the immediate result of unreasonable action on the part of the Deceased? Was the injury the consequence of an action by the Deceased which was not independent and unreasonable? Even if, contrary to earlier conclusions, one assumes the depression and the suicide to be foreseeable, was it the case that either of them in the ordinary course of things were the very kind of thing likely to happen as a result of the Defendant's negligence? In particular, is there some reason in common sense, logic or policy for regarding the Defendant's conduct as the cause of the Plaintiff's loss? 153 These questions should be answered "no". The assumption that the Deceased was of normal susceptibility must be made in relation to causation as it is to be made in relation to foreseeability. It would be bizarre if for part of the analysis he were treated as being of normal susceptibility, but for another part he were treated as being the opposite. Nothing in the law justifies that distinction. On the assumption that the Deceased was of normal susceptibility, to develop depression and then to commit suicide is not reasonable. Developing depression and committing suicide were events which were not only unreasonable, but were independent of the Defendant's conduct. Developing depression and committing suicide were not, in the ordinary course of things, the very kind of thing likely to happen as a result of the Defendant's negligence to a person of normal susceptibility. There is no reason in common sense, logic or policy for regarding the Defendant's conduct as a "cause" of the Plaintiff's injury in view of the Deceased's depression and suicide. But even if the Deceased is not assumed to be a person of normal susceptibility, the fact that he developed depression and the fact that he committed suicide were not events which were reasonable or in the ordinary course of things the very kind of thing likely to happen as a result of the Defendant's negligence. No considerations of common sense, logic or policy suggest the Defendant's conduct as the cause of the Plaintiff's injury in view of the Deceased's depression and suicide. If the question is approached in the way the Court approached the problem in Rowe v McCartney [1976] 2 NSWLR 72, though the Deceased would not have suffered the psychiatric illness which led to his death but for the accident, that psychiatric illness was not relevantly related to it: it had only a tenuous connection with it, its manner of causation was different from the manner in which the Deceased's psychiatric illness which was cured before 24 April 1998 was caused, the chain linking it to the Defendant's negligence was different from the chain linking other injuries to the Deceased to the Defendant's negligence, the former type of harm was different in kind from the latter. Remoteness 154 If there was a duty of care, it was breached - at least the Defendant and the Insurer did not contend otherwise. Contrary to what has just been concluded, let it be assumed that the breach caused the Plaintiff's damage. In Morgan v Tame (2000) 49 NSWLR 21 at [160] Mason P said: "Proof of causation of damage is not sufficient for a plaintiff …. Even where there is a duty and a breach, it must be shown that the damage suffered was not too remote." Was the damage too remote? 155 In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 510 Mason CJ (with whom Toohey J and Gaudron J agreed) said that the test of reasonable foreseeability was not a test of causation, but of remoteness. That is, a breach of duty may be said to have caused damage, but recovery might nonetheless be prevented by reason of remoteness, and remoteness turns on reasonable foreseeability. As Windeyer J said in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 397: "we have the blessed, and sometimes overworked, word 'foreseeability' as a single test for both the existence of liability and negligence and the extent of recoverable damage." In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 510, Mason CJ said: "However, in Chapman v Hearse [(1961) 106 CLR 112 at 122], this Court said, 'the term 'reasonably foreseeable' is not, in itself, a test of 'causation'; it marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act'. More recently, in Mahony v J Kruschich (Demolitions) Pty Ltd [(1985) 156 CLR 522 at 528], the Court said: 'A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens: M'Kew v Holland & Hannen & Cubitts [1970 SC (HL) 20]. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone: see Chapman v Hearse [(1961) 106 CLR 112 at 124-125]. Whether such a line can and should be drawn is very much a matter of fact and degree [(1961) 106 CLR 112 at 122].' Just as Chapman v Hearse rejected reasonable foresight as a test of causation, so M'Kew and Mahoney rejected it as an exclusive criterion of responsibility." 156 For the reasons stated in relation to the conclusion that there was no duty of care, the damage caused was not reasonably foreseeable, and hence it was too remote. Section 77 of the Motor Accidents Act 1988 157 For the reasons already given, independently of s 77 of the Motor Accidents Act 1988, the Plaintiff would not have been entitled to recover damages for nervous shock. Its enactment does not improve her position. It provides: "Damages for psychological or psychiatric injury No damages for psychological or psychiatric injury shall be awarded in respect of a motor accident except in favour of: (a) a person who suffered injury in the accident and who; (i) was the driver of or a passenger in or on a vehicle involved in the accident, or (ii) was, when the accident occurred, present at the scene of the accident, or (b) a parent, spouse, brother, sister or child of the injured person or deceased person who, as a consequence of the injury to the injured person or the death of the deceased person, has suffered a demonstrable psychological or psychiatric injury and not merely a normal emotional or cultural grief reaction." Like many of the provisions of the Motor Accidents Act , s 77 is not a provision intended to widen common law liability, but to narrow it, or at least maintain, its limits. It picks up all the common law rules relating to, and restrictive of recovery for, psychological and psychiatric injury and adds to them, at least in relation to the classes of plaintiffs who can recover. The trial judge found for the Plaintiff because he found that the suicide had been caused by the accident. Since that conclusion is not correct, and since there are other bars to recovery, the trial judge's finding in favour of the Plaintiff under s 77 is erroneous. In argument the possibility was raised that the expression "as a consequence of the injury" was intended to introduce a more liberal test for causation than those contemplated by March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. The Plaintiff did not embrace that possibility or put argument in support of it. In this her approach was sound. In Avoushadi v CIC Insurance Ltd (1996) 23 MVR 385 at 387, Handley JA, with whom Priestley JA and Cole JA agreed, said: "s 77 does not purport to confer any cause of action. It allows causes of action for psychological injury at common law, or under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) within the limits imposed by the section and excludes other causes of action for such injury. The section confers no rights. Its operation is wholly negative." To construe "consequence" so as to widen common law causation tests would give s 77 something other than a "negative" operation. The need for a sudden shock to the Deceased's senses 158 There may be another obstacle to the Plaintiff's success. Liability for psychiatric injury caused by negligence is generally restricted to cases where the injury is caused by a physical injury or by a sudden shock to the senses: that is, "the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognisable psychiatric illness": Jaensch v Coffey (1984) 155 CLR 549 at 565 and 567 per Brennan J; Morgan v Tame (2000) 49 NSWLR 21 at [42]-[61], [145]-[159] and [167] per Spigelman CJ, Mason P and Handley JA; Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [70]-[77] per Ipp J; and cases cited in the latter two authorities. There is no doubt that that requirement was satisfied in relation to the Plaintiff's mental trauma. But does a similar test apply to the Deceased's mental trauma? The sudden shock to the Plaintiff was the sound of the shot causing her husband's death and the sight of his remains. Must it be established that the Deceased fired the shot because of a psychiatric illness which was the result of a sudden shock to his senses? The cases assume or assert that there are sound reasons of legal policy for the rule that psychiatric injury to a plaintiff who has not been physically injured must be caused by a sudden shock. If there are in truth sound reasons, the same reasons would appear to justify a rule that where an element in the chain of causation is the psychiatric injury of a third party, that must be caused by a sudden shock also. The Deceased's reaction to the hearing of 24 April 1998 cannot be described as being the result of a sudden sensory perception of a person, thing or event, which was so distressing that it affected the Deceased's mind. Rather his depression arose progressively as a result of him persistently and morbidly meditating, fretting and brooding about a number of different aspects of the litigation: his worries about having a poor memory exposed, his fears about costs orders, his resentment of having been accused of being excessively eager to make compensation claims, his hurt at having been called untruthful. These things did not come to him with a sudden shock. They gnawed at him, they corroded him, they wore away his powers of resistance. 159 However, it is not necessary to reach a final decision about the matters discussed under this heading in view of the other barriers in the path of the Plaintiff. Public policy against fettering cross-examination? 160 For the same reason, it is not necessary to discuss the argument that there is a public interest in cross-examiners being able to put suggestions to witnesses which may cause injurious reactions, without being fettered by the risk of creating or increasing liability. The creation of an immunity of this kind would be difficult as a matter of linguistic formulation. Its desirability as a matter of legal policy may be highly controversial. The enterprise is not appropriate for an intermediate appellate court, at least not when the decision of the particular case does not make it necessary to embark on it. It is also, therefore, unnecessary to determine whether the conduct of the hearing on 24 April 1998 went beyond the limits of whatever public interest exception or immunity might be held to exist. That hearing was conducted in a manner which is very common in personal injury litigation. It is a manner which those who adopt it have doubtless done advisedly, though others may prefer different techniques. What happened when viewed in the light of hindsight might, like most other human conduct when so viewed, have been done differently. It does not, however, of itself appear to have been behaviour of a kind which could destroy any available public interest exception or immunity. Proximity 161 No argument was addressed by any party to the necessity or otherwise of establishing proximity. In Western Australia it must be established (Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [104]). In this State, Morgan v Tame (2000) 49 NSWLR 21 at [12] suggests that it need not. In view of the other reasons for denying relief to the Plaintiff, it is not necessary to consider this issue. The Compensation to Relatives Act 1897 claim 162 Section 3(1) of this Act provides: "Whensoever the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to a serious indictable offence." 163 The trial judge held that the test of liability under s 3(1) is whether the death was caused by the wrongful act, default or neglect of the Defendant. He held that the Plaintiff was therefore not required to prove that the Deceased's death by suicide was reasonably foreseeable by the Defendant, but merely that his death by suicide was a consequence of the Defendant's negligence. He based that approach on authority: Haber v Walker [1963] VR 339; Zavitsanos v Chippendale [1970] 2 NSWR 495 at 500. Accordingly he saw the only relevant issue as being causation, and having already found that the 1993 accident caused the suicide, found for the Plaintiff under s 3(1). 164 Since the trial judge's conclusion on causation has been held incorrect for the reasons given above even if the Deceased is not assumed to be of normal fortitude, his holding for the Plaintiff under s 3(1) must be reversed. It is not necessary to consider whether the authorities relied on to exclude the relevance of reasonable foreseeability should be followed. Orders 165 It follows that, inadequate though the sums awarded by the trial judge for nervous shock and under the Compensation to Relatives Act 1897 to compensate the Plaintiff for the loss of her husband may be, they went beyond what the law binding on this Court permits. However, the verdict for the Plaintiff as executrix of the Deceased's estate was not challenged and continues to stand. 166 Counsel for the Defendant and the Insurer informed this Court that their instructions were that if their appeals succeeded, they would not seek a costs order in relation to the appeals against the Plaintiff. In the circumstances there should be no order for the costs of the appeals. Counsel for the Defendant and the Insurer also conveyed instructions, which were humane, that their clients did not seek to disturb the costs orders made by the trial judge in favour of the Plaintiff. 167 Both the Defendant and the Insurer sought orders that the Plaintiff repay by way of restitution all monies paid to her pursuant to the judgments in the Court below in respect of which the appeals have been allowed "together with interest thereon from the date such sums were paid to the date of judgment in this appeal". Those words are ambiguous. They do not make it clear whether the rate of interest is to be the rate established pursuant to rules of court, or whether it is to be the rate of interest actually earned on the monies while in the hands of the Plaintiff. In all the circumstances (which include the circumstance that the case is in some ways a test case operating at the frontier of the law) the interest payable should only be the interest actually earned. No submission was advanced by either the Defendant or the Insurer to the contrary. 168 In the appeal by the Roads & Traffic Authority of NSW (CA 40399 of 2000), the following orders are proposed: 1. That the appeal be allowed. 2. That Order 2 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof there be verdict and judgment for the Roads & Traffic Authority of NSW on the Plaintiff's claim pursuant to the Compensation to Relatives Act 1897. 3. That Order 3 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof there be verdict and judgment for the Roads & Traffic Authority of NSW on the Plaintiff's claim for damages for nervous shock. 4. That Order 4 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof that there be a verdict and judgment for the Roads & Traffic Authority of NSW against AMP General Insurance Ltd in the sum of $23,336 with interest from 13 April 2000. 5. That the Second Respondent pay to the Appellant, by way of restitution, all monies paid pursuant to the judgments in the Court below in respect of which the appeal has been allowed together with interest actually earned thereon from the date such sums were paid to today's date. 6. That there be no order as to the costs of any party to the appeal. 169 In the appeal by AMP General Insurance Ltd (CA 40319 of 2000) the following orders are proposed: 1. That the appeal be allowed. 2. That Order 2 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof there be verdict and judgment for the Roads & Traffic Authority of NSW on the Plaintiff's claim pursuant to the Compensation to Relatives Act 1897. 3. That Order 3 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof there be verdict and judgment for the Roads & Traffic Authority of NSW on the Plaintiff's claim for damages for nervous shock. 4. That Order 4 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof that there be a verdict and judgment for the Roads & Traffic Authority of NSW against AMP General Insurance Ltd in the sum of $23,336 with interest from 13 April 2000. 5. That the Second Respondent pay to the Appellant, by way of restitution, all monies paid pursuant to the judgments in the Court below in respect of which the appeal has been allowed together with interest actually earned thereon from the date such sums were paid to today's date. 6. That there be no order as to the costs of any party to the appeal. 170 DAVIES AJA: The general facts and issues have been set out in the reasons for judgment of Heydon JA. I need not repeat them. 171 The deceased injured his lumbar spine on 27 February 1993 in the course of unloading heavy rolls of plastic from a truck. He returned to work at the end of April 1993. Subsequently, the deceased suffered severe pain as a result of a simple twisting movement on 9 March 1995. The trial Judge was satisfied that the symptoms which became evident on that day were due to the injury to the lumbo-sacral disc which had occurred in February 1993. 172 The deceased ceased work on 7 August 1997 as he could no longer manage the pain. He had had a long history as a worker for the Roads and Traffic Authority of New South Wales ("the RTA"). As he was only borderline literate, working had been his great interest and pride. Over time, suffering pain and being unable to work, the deceased developed a depressive disorder. In November 1997, he was referred to Mr Greg Anning, a consultant clinical psychologist. The trial Judge described the deceased's condition, at that time, as follows:- "At the initial interview the Deceased was distressed and agitated but did not display overt pain behaviour and did not appear to be excessively pain focused or somatic in his presentation. He was frustrated and angry regarding the length of time the RTA had taken to accept his claim and was also of the opinion that he had upgraded to full duties far too quickly following the 1995 incident. Mr Anning assessed him as being a very active hands on type of man who prided himself on his ability to work with his hands but who was illiterate and whose notion of self worth was very much aligned to his physical abilities. As he was unable to do the things he previously did Mr Anning observed that he was feeling quite useless and worthless. He had an overriding fear of returning to the RTA on restricted duties because the only duties that he could conceive to be available was work in the office and he was frightened about being placed in this situation as it would further reinforce his inadequacies - something which his wife confirmed in her oral evidence. Mr Anning diagnosed Adjustment Disorder with Depression and Anxiety as a result of work place injuries." 173 Mr Anning's report, dated 25 February 1999, described the deceased in these terms:- "When seen Mr Boxsell was a 51 year old man who presented with symptoms consistent with a diagnosis of Adjustment Disorder with Depression and Anxiety as a result of a work related injury. His condition was exacerbated by his very grave fear that he would be made to return to the RTA on restricted duties which to him ment [sic] working in the office. He was functionally illiterate he was very concerned that he would be made to feel a fool and not be a contributing member of a team which was an important and essential work value for him. When initially seen Mr Boxsell presented with feelings of worthlessness as a result of his injury. With subsequent psychological treatment he was able to regain some selfworth." 174 The deceased had seven sessions of disability counselling with Mr Anning from 4 December 1997 to 5 March 1998. At the end of that period, Mr Anning considered that his patient, who at the first interview had presented in quite a distressed and agitated manner, appeared to have recovered from his Adjustment Disorder. 175 On 24 April 1998, only seven weeks after his last treatment by Mr Anning, the deceased was cross-examined during his application for leave to proceed under s 151D of the Workers Compensation Act, 1987. Following the cross-examination, he again suffered a depressive illness and psychiatric disorder which led shortly thereafter to his suicide. 176 As a result of the depression and psychiatric illness which developed, the deceased committed suicide by shooting himself at his home on 2 May 1998. The deceased's wife, Mrs Margaret Boxsell, heard her husband remove a gun from the gun locker. She followed him. She heard the shot and saw his body. Not surprisingly, she herself suffered a severe psychological reaction and disorder. 177 A question in this appeal is whether the deceased's suicide was an event which was reasonably foreseeable by the RTA as a consequence or possible consequence of the work accident in February 1993. It is not suggested, of course, that the suicide would have been in anybody's actual contemplation at the time. Save in special circumstances which do not exist in the present case, one does not contemplate suicide as an event likely to flow from injury. Suicide is a shocking self-destructive act and was, until 1983, a crime in New South Wales. 178 However, it has been recognised that a work injury may cause depression and that depression may cause suicide. 179 In Holdlen Pty Ltd v Walsh [2000] NSWCA 87, a widow succeeded in her claim for benefits under the Workers Compensation Act, 1987 where a work injury had been followed by unsuccessful treatment, separation from the spouse, depression and suicide. Giles JA, with whom Meagher and Heydon JJA agreed, reviewed the authorities in the United Kingdom dealing with the issue whether, in a case where suicide on the part of the worker had eventuated, compensation could be awarded for "personal injury by accident" or "where death results from the injury", terms which were used in the Workmen's Compensation Act, 1906 (UK) and the Workmen's Compensation Act, 1925 (UK). The cases in the United Kingdom had enquired into the issue of the sanity of the worker, taking the view that suicide, an intentional act on the part of the worker, would break the chain of causation between the injury and the death, unless the worker's mental state was that of insanity. In Holdlen, Giles JA rejected that view. His Honour said:- "34 There may be some difficulties, despite the hallowed past of the approach, in inquiring into insanity as going to causation in a suicide case. 35 First, the premise is that, absent a finding of insanity, the intentional act of suicide would break the chain of causation between the injury and the death. But it is now more readily recognised that in causation, said to be a question of fact although tempered by value judgments and infused with policy considerations because with a view to allocating legal responsibility ( March v E & M H Stramare Pty Ltd (1991) 171 CLR 506), an intentional act even of the person wronged may not break the chain of causation. The intentional act may be part of the chain of causation, for example the resignation of the plaintiff in Medlin v State Government Insurance Commission (1995) 182 CLR 1; the reasons of Deane, Dawson, Toohey and Gaudron JJ include (at 10) - 'The necessary causation between a defendant's negligence and the termination of a plaintiff's employment, in the sense that the termination of the employment is the product of an accident-caused loss of earning capacity, can exist notwithstanding the fact that the immediate trigger of the termination of the employment was the plaintiff's own decision to retire prematurely. If, for example, it appears that a plaintiff's decision to retire prematurely would not have been made were it not for the fact that the effect of accident-caused injuries is that continuation in employment would subject him or her to constant pain and serious risk of further injury, it may well be that commonsense dictates the conclusion that the plaintiff's decision to retire prematurely was a natural step in a chain of causation which suffices to designate, for the purposes of the law of negligence, the termination of the employment as a product of those injuries.' 36 If this be so, I do not see why, if the facts be appropriate, death by suicide could not be found to have resulted from work-related injury without a finding that the worker was insane. 37 Secondly, describing the inquiry as one into insanity may mislead. Insanity is a concept of varying content, and the true inquiry (if the validity of any such inquiry be assumed) is into the worker's mental state so that it might be found whether his suicide should be regarded as an intentional act. The test of dethronement of the power of volition has been adopted, and it does not necessarily turn on insanity. The law recognises in contexts not involving insanity that the will may be overborne or subjected to such influences that, although an act is deliberate, it is not regarded as the actor's intentional act. In the context of duress, for example, Lord Simon said that duress 'deflects, without destroying, the will of one of the contracting parties' (Director of Public Prosecutions for Northern Ireland v Lynch (1975) AC 653 at 695), and Lord Scarman took as one of the elements of duress 'pressure amounting to the compulsion of the will of the victim' ( Universe Tankships Inc of Monrovia v International Transport Workers Federation (1983) 1 AC 366 at 400). Lord Scarman said that the classic case of duress is 'not the lack of will to submit but the victim's intentional submission arising from the realisation that there is no other practical choice open to him' (ibid). Suicide, while deliberate, may often (but not always) be the product of a will so overborne or influenced by the worker's circumstances that it should not be regarded as an intentional act breaking the chain of causation. Insanity is not a necessary step to this result." 180 I respectfully agree with the views expressed by his Honour, including the point made by his Honour that cases such as Medlin accept that an intentional act on the part of an injured person can, in an appropriate case, be regarded as part of the chain of causation. In the present case, the issue does not arise in any dramatic form for the deceased's depressive state developed into a psychotic state. It would be wrong to regard his action of suicide, whilst in that state, as an intentional act which broke the chain of causation. 181 Turning to the cases which have dealt with damages for negligence, I would respectfully adopt the remarks of Handley and Beazley JJA in Commonwealth of Australia v McLean (1996) 41 NSWLR 389. Their Honours there discussed the issues which arise when an injured person has developed a stress disorder or other psychiatric illness. At p 403, their Honours said:- "A wrongdoer is responsible for all damage of the same type or kind as that which was reasonably foreseeable, even if the particular damage, or its extent, were not reasonably foreseeable, or the damage occurred in an unexpected and unforeseeable manner: see Chapman v Hearse (1961) 106 CLR 112 at 120-121. The test of liability for nervous shock is foreseeability of injury by shock: see Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402, 412; Jaensch v Coffey (1984) 155 CLR 549 at 552-553, 561, 563. The courts have recognised that for some purposes psychiatric injury is a form of bodily injury: see Page v Smith [1996] 1 AC 155 at 182-183, 187-188; Aboushadi v CIC Insurance Ltd [1996] Aust Torts Reports, 63,336 at 63,339 and American Airlines Inc v Georgeopoulos (Court of Appeal, 26 September 1996, unreported) at 12-15; see also R v Chan-Fook [1994] 1 WLR 689 at 695-696; [1994] 2 All ER 552 at 559, where psychiatric injury was held to constitute actual bodily harm. The courts have nevertheless treated damage by nervous shock as different 'in kind' from tangible physical injury." 182 At p 406, their Honours further said:- "It may be taken as a rule of law that damage by nervous shock is different in kind from damage caused by tangible physical injuries. On that view the further damage as a matter of law was different in kind from the stress disorder, but it is not necessary to go that far to decide this appeal. On the most favourable view for the plaintiff this was a question of fact for the jury: see Richards v Victoria [1969] VR 136 at 146. The 'egg shell skull' principle makes a defendant liable for damage of an unforeseeable extent, but not for unforeseeable damage of a different kind. Under this principle a defendant is liable for additional damage of a foreseeable kind suffered by a plaintiff who has some special vulnerability: see Smith v Leech Brain & Co Ltd [1962] 2 QB 405 at 414 ('not unforeseeable damage of a different kind from that which was foreseen, but more extensive damage of the same kind'). This is supported by the statement in Overseas Tankship (UK) Ltd v Mort's Dock & Engineering Co Ltd (The 'Wagon Mound' (No 1)) [1961] AC 388 at 415 '… the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen'; the statement in Hughes v Lord Advocate [1963] AC 837 at 845: 'But a defender … can only escape liability if the damage can be regarded as differing in kind from what was foreseen', and the statement in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The 'Wagon Mound' (No 2)) [1967] 1 AC 617 at 636: '… damage can only be recovered if the injury complained of was not only caused by the alleged negligence but was also an injury of a class or character foreseeable as a possible result of it.' " 183 A dramatic illustration of the implication of these principles is seen in Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 where the Court of Appeal, Samuels and McHugh JJA, Mahoney JA dissenting, held that, where a 10 year old boy had suffered only minor physical injuries but had subsequently developed symptoms of the Ganser Syndrome, a pseudo dementia, to which the overprotective and inappropriate conduct of the child's parents had contributed, the boy was entitled to damages for the dementia which he suffered. It was held that the accident was a legal cause of the Ganser Syndrome because it materially contributed to the onset and continuation of the condition. 184 The approach taken in these cases was followed in Kavanagh v Akhtar (1998) 45 NSWLR 588. Mason P, with whom Priestley and Handley JJA agreed, cited and approved the remarks of Handley and Beazley JJA in McLean and the approach taken in Nader. At p 602, Mason P said:- "It was perfectly foreseeable that a severe and continuing shoulder injury would affect a plaintiff's capacity to attend to matters of personal hygiene and adornment, particularly in a context where she was a homemaker. And it was equally foreseeable that this would put strain on marital relations, as it certainly did in the months prior to the hair cutting incident. That such strain might lead to a severe breakdown of that marital relationship with extreme psychiatric consequences for a vulnerable plaintiff was also foreseeable. The fact that the breakdown occurred in consequence of a perhaps unforeseeable step taken by the respondent (cutting her hair) or the perhaps unforeseeable reaction of her husband is irrelevant in the light of cases such as Hughes and Nader , so long as psychiatric injury is itself regarded as a foreseeable consequence of the physical injury inflicted on the respondent: see Commonwealth v McLean ." 185 Those were cases where the psychiatric illness was suffered by the injured person. Damages have also been awarded to persons who suffered an illness as a result of observing the consequences of injury or death. In Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, an engineer was working next to electricians who had not been properly instructed by their employer as to a safe system of work. The engineer saw one of the electricians severely burnt and aided him and assisted in carrying him to an ambulance. Several days later, the electrician died. About four weeks later, the engineer developed a serious mental disturbance of the schizophrenic type. Barwick CJ, McTiernan, Menzies, Windeyer and Walsh JJ held that the negligent employer was liable for the injury suffered by the engineer. Their Honours held that there was a duty of care to persons who may suffer shock on seeing an accident and that it was reasonably foreseeable that an accident, of the kind that occurred, might have consequences for somebody, of the kind that it had on the engineer. 186 This approach was applied and extended in Jaensch v Coffey (1984) 155 CLR 549. In that case, a motorcyclist suffered serious injury in a collision with a vehicle which was driven negligently. The motorcyclist's wife, who was not at the scene of the accident, saw him in hospital and she was told that he was "pretty bad". The next morning, she was told that her husband was in intensive care and, shortly thereafter, she was told that he had "had a change for the worse" and she was asked to come to the hospital as quickly as possible. Although her husband survived, the wife suffered nervous shock as a result of what she had seen and been told. It was held that, in some cases, the impact of events will occur after the accident. At pp 567-568, Brennan J said:- "The capacity of a phenomenon to cause a person who perceives it to suffer a psychiatric illness depends in part upon the distressing aspects of the phenomenon which are manifest to be perceived by anybody and in part upon any special significance which the phenomenon may have for the person who perceives it. Thus a runaway lorry rushing around a bend has a special significance for a mother who knows her children to be there; she is more likely than another bystander to be shocked by the sight of the runaway lorry: see Hambrook v Stokes Bros [1925] 1 KB 141. Of course a psychiatric illness may be induced by shock when a distressing phenomenon is perceived by a plaintiff for whom it has no special significance. Thus in Dulieu v White & Sons [1901] 2 KB 669, where it was held that a plaintiff could recover for 'a severe shock' if she proved that it was caused by the negligent driving of a pair-horse van into her husband's public house where she was behind the bar, it was not thought necessary that the plaintiff should allege and prove that she was more susceptible than other occupants of the public house to the sight of the entry of the pair-horse van. No doubt it is true to say that the more distressing and dramatic an event, the more likely it is to cause shock to those who perceive it. The scene of a road accident where an injured victim is to be seen is usually more distressing and dramatic, more inherently shocking, than the scene in a hospital ward where the victim is recovering from his injuries. There is, however, no legal principle which precludes a plaintiff from relying on phenomena other than the scene of an accident or, as in Hambrook v Stokes Bros , the scene of a potential accident. A temporal extension beyond the actual occurrence of an accident was accepted by Lush J in Benson v Lee [1972] VR 879, who allowed a claim based upon 'direct perception of some of the events which go to make up the accident as an entire event, and this includes … the immediate aftermath …' [1972] VR, at p 880. But I know of no principle which precludes a plaintiff from relying on any phenomenon which is a reasonably foreseeable result of the defendant's carelessness. It is a question of fact whether it is reasonably foreseeable that the sudden perception of that phenomenon might induce psychiatric illness." 187 In Jaensch v Coffey, Deane J, who favoured the application of a test of "proximity", expressed the test, in relation to a nervous shock claim, in this way, at pp 606-607:- "There are at least two possible rationales of the distinction, for the purposes of the requisite duty relationship, between cases where psychiatric injury was sustained as a result of direct observation at the scene of the accident and its aftermath and cases where the psychiatric injury was sustained from subsequent contact, away from the scene of the accident and its aftermath, with a person suffering from the effects of the accident. One such rationale lies in considerations of physical proximity, in the sense of space and time, between the accident and its immediate aftermath on the one hand and the injury on the other. The other lies in considerations of causal proximity in that in the one class of case the psychiatric injury results from the impact of matters which themselves formed part of the accident and its aftermath, such as the actual occurrence of death or injury in the course of it, whereas, in the other class of case, the psychiatric injury has resulted from contact with more remote consequences such as the subsequent effect of the accident upon an injured person. The choice between one or other or a combination of these two distinct rationales may obviously be of importance in the more precise identification of any essential criteria of the existence of the requisite duty relationship. On balance, I have come to the conclusion that the second, which justifies the line of demarcation by reference to considerations of causal proximity, is to be preferred as being the less arbitrary and the better attuned both to legal principle and considerations of public policy. It has been said in many cases that the general underlying notion of liability in negligence is 'a general public sentiment of moral wrongdoing for which the offender must pay': see, eg, Donoghue v Stevenson [1932] AC, at p 580; Dorset Yacht Co. Case [1970] AC, at p 1038; The Dredge 'Willemstad' Case (1976) 136 CLR, at p 575. A requirement based upon logical or causal proximity between the act of carelessness and the resulting injury is plainly better adapted to reflect notions of fairness and common sense in the context of the need to balance competing and legitimate social interest and claims than is a requirement based merely upon mechanical considerations of geographical or temporal proximity." 188 In Morgan v Tame (2000) 49 NSWLR 21, the cases were again fully considered. I need not deal with the judgment in detail for the facts were far apart from those which we are considering. Spigelman CJ, Mason P and Handley JA enunciated the view that, in nervous shock cases, issues of foreseeability must be examined in the context of "a person of normal fortitude". There is no question that, in the present case, both the deceased and Mrs Boxsell were persons of normal fortitude. Spigelman CJ, Mason P and Handley JA also held that, on the present state of the authorities, a sudden assault to the senses was an essential requirement for recovery of damages in a case of psychiatric injury. At p 31, Spigelman CJ cited, with approval, the view of McHugh JA in Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 509:- "… The illness must be the result of a shock caused by the perception of a phenomenon for which the defendant is responsible." In the present case, the requirement of a sudden assault was satisfied as Mrs Boxsell's illness arose from the shock that she received on hearing the gunshot and seeing her husband on the ground with the injuries which the gunshot had inflicted. 189 A period of five years passed between the accident and the suicide. The case is thus different from cases such as Mount Isa, where the plaintiff who suffered the shock was present at the time of the accident, or Jaensch, where the wife suffered shock whilst her injured husband was in a serious condition in hospital shortly after the accident. However, the passage of such time has not been thought to preclude findings of causation. In Holdlen, the injury had occurred on 14 November 1994 and the suicide on 14 or 15 October 1997. In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, a worker had suffered a back injury in 1981 and had had prolonged pain, anxiety and depression and died from a myocardial infarction in 1992. Whilst I accept that the lapse of time is a matter which must be taken into account, it seems to me that, in the present case, the lapse was not of such a period as to lead to the conclusion that the depressive illness or the suicide or Mrs Boxsell's psychiatric response to the suicide was not reasonably foreseeable. Clearly, in the field of psychiatric illness and nervous shock, there are sound reasons of policy why courts should impose tight restrictions upon claims made for damages. However, the restrictions applied in Morgan and in Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 are not relevant to the present case. 190 The present case is unusual for it took some time for events to work themselves out. Moreover, the claim for nervous shock was dependent on the establishment that the deceased's psychiatric illness and suicide were sequelae of his injury at work. Many years ago, such a claim would not have been recognised. See Chester v Council of the Municipality of Waverley (1939) 62 CLR 1. These days, however, the approach to psychiatric illness has changed. As Mason P said in Morgan, at p 49, "Depressive illness is widespread and it appears to be on the increase". As its existence and causes become better recognised, so the demand to compensate those whose illness has its origin in negligence will increase. 191 In the present case, although the chain of causation was a lengthy one, it seems to me that it was reasonably foreseeable that the RTA's failure to provide a safe system of work could lead to the deceased's back injury, that that injury could lead to a depressive illness, that the deceased might suicide as a result of the depression and that Mrs Boxsell might suffer a severe psychological reaction from the shock of the suicide. If that is what happened, the elements of duty of care, breach thereof and causation, would have been satisfied. So, also, would the element of proximity, for Mrs Boxsell was the wife of the injured worker, she heard the gunshot by which the deceased effected the suicide and she saw its immediate aftermath. 192 However, the crucial question is a question of causation, whether the depression and the suicide which followed the cross-examination flowed causally from the deceased's injury at work or whether the cross-examination was a novus actus interveniens, an intervening factor which broke the chain of causation. 193 Dr Gertler, a consultant psychiatrist, on 3 June 1999 reported the following, inter alia, which the trial Judge accepted:- "In the days following his court appearance, Mr Boxsell appears to have become increasingly agitated and obsessed with the court appearance. He told his wife as well as a close friend that he felt humiliated, and had been made out to be a liar and a fool. He could not be reassured by his family or close friends and became suicidal. He also appears to have developed a psychotic state as part of a major depression. He had delusions of worthlessness and also paranoid delusions about the insurance company. He spoke of his suicidal thoughts to his wife, but was apparently sufficiently reassured at the time to postpone a suicide attempt. On 2 May 1998, some eight days after his court appearance, he did commit suicide by gunshot wound. … There is no evidence that Mr Boxsell suffered from depression or other psychiatric problems prior to his appearance in court on 24 April 1998. That appearance caused him considerable distress. He appears to have been confused by the court proceedings and to have left the court feeling that he had been made out to be a fool, inadequate and a liar. Given that Mr Boxsell appears to have been a very straightforward, honest and hardworking man who was attempting to come to terms with his chronic disability and the fact that he was no longer able to work, he was apparently angered and humiliated by the suggestion that he had stopped work only to make financial gains through the compensation process. In my opinion, there is a causative link between Mr Boxsell's injury sustained in 1993 and subsequent assertions made against his character during the hearing on 24 April 1998 which ultimately led to his severe depression and suicide on 2 May 1998." 194 It was arguable before the trial Judge that the cross-examination in the application for leave undid all the benefit which had been achieved by Mr Anning's counselling and that it reactivated and enhanced the Adjustment Disorder from which the deceased had previously suffered, that the injury which the deceased suffered in February 1993 was a substantial cause both of the depression which the deceased suffered prior to his cross-examination and the depression and psychiatric illness which he suffered after the cross-examination and that the depression was occasioned by the deceased's pain, his inability to work and the fact that, in the context of his functional illiteracy, the deceased felt worthless, felt humiliated and felt that he was being or would be made to look a fool. It was arguable that it was because of the back injury that the deceased lost pride in himself. 195 However, while this was arguable and may even have been the basis of Dr Gertler's view that there was a causative link between Mr Boxsell's injury and his suicide, Dr Gertler did not express a clear view to that effect. 196 The findings of the trial Judge are inconsistent with the argument I have mentioned. His Honour held:- "56 Neither the Defendant or the Second Cross Defendant disputed that the death of Mr Boxsell was caused by the stress he underwent as a result of cross examination in proceedings for leave to commence his action outside the statutory limitation period. The Second Cross Defendant adopted the Defendant's submissions in this regard and the Defendant made no submission contrary to the Plaintiff's submission that Mr Boxsell suicided as a result of depression but submitted that it was due to stress as a result of the leave proceedings. The Defendant and Second Cross Defendant submitted that there is no evidence of depression or psychiatric illness or disturbance immediately prior to the appearance in Court on 24 April 1998 and I am satisfied that was the fact and I am also satisfied that the Deceased's pre-existing psychological or psychiatric problems which resulted in the depression which caused the referral to Mr Anning was effectively cured in early March about six weeks before the proceedings took place. 57 The Defendant and Second Cross Defendant submitted that the evidence establishes and I am satisfied on the balance of probabilities that Mr Boxsell's suicide was caused by events which took place during the application for leave and it was that event which triggered the later depression which led to him taking his life." 197 It was, no doubt, because his Honour did not see a continuing chain of factual causation between the back injury, the depression and the suicide, that his Honour expressed his ultimate finding as follows:- "In my view the 1993 incident was a legal cause of the depression and consequent suicide because it materially contributed to the onset and continuation of the severe depression." His Honour appears to have used the words "legal cause" to describe a situation which, in his view, was not one where the injury at work had developed into depression and resulted in suicide. 198 In the absence of any express or other clear evidence that the cross-examination reactivated the Adjustment Disorder from which the deceased suffered following his back injury, I am of the view that I should accept the findings of fact made by the trial Judge on this point. His Honour had the advantage of presiding over the trial and hearing the witnesses. Although I have some doubts about his Honour's findings, I am not satisfied that his Honour erred. 199 Speaking of intervening acts, Mason CJ said in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 517:- "The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct." At pp 518-519, Mason CJ went on to say:- "As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things." 200 As the depression and the suicide were not a continuation of the depression which the deceased suffered following his back injury, it seems to me that the cross-examination which brought about the suicide was a novus actus interveniens. The deceased's depression and psychosis after the cross-examination flowed, not from his back injury, but from his pursuit of compensation. The negligence of the RTA in failing to provide a safe system of work did not generate the risk that the deceased would be cross-examined as he was or that he would respond to the cross-examination by suicide. Nor did the events occur in the ordinary course of things. 201 In the result, therefore, the claims pursued before the trial Judge must fail as there was a break in the chain of causation. 202 I agree with the orders proposed by Heydon JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.