All in the mind understanding psychological injury

At the age of 15, Geoffrey Watson SC read Harper Lee’s To Kill A Mockingbird and vowed to become a lawyer like its main character Atticus Finch.

The second-youngest of five children, Watson spent his childhood in Strathfield, in Sydney.

He studied Arts and Law at the University of Sydney and joined the profession in 1983, at first as a solicitor and later a barrister.

‘My background was very typical for a barrister in those days – starting with small cases, building up to bigger cases,’ he modestly tells.

CHALLENGING CORRUPTION

In truth, Watson has carved out a colourful career, appearing as Counsel Assisting in several large scale public inquiries, including Independent Commission Against Corruption (ICAC) investigations into corrupt NSW politicians and the Police Integrity Commission inquiry into allegations of police misconduct in the shooting death of Adam Salter.

Watson is famous for his opening remarks at  the 2012 ICAC inquiry into the actions of former NSW Labor ministers Ian MacDonald and Eddie Obeid in relation to coal mining leases in the Hunter Valley.

As Counsel Assisting, Watson told the inquiry that the level of possible corruption at hand ‘is on a scale probably unexceeded since the days of the Rum Corps’.

DIFFICULT AND FASCINATING

Watson, who has always had an interest in tort law and has taught it at university level, says any thinking tort lawyer is attracted to psychological injury because it is such a difficult and fascinating area. 

‘Strangely, the most serious injuries I have ever seen in practice are the psychological injuries,’ he says.

‘I have done many cases involving quadriplegics and paraplegics who reassemble their lives and go on to build something new and good. 

‘But serious psychological injuries are worse – they often never improve.’

Watson says his biggest case in that respect was In Tame v New South Wales (2002) 211 CLR 317, which ‘really altered the law in the area of psychological injury, Australia-wide’.

POLICE ERROR SETS OFF DEPRESSION

In the Tame case, the plaintiff developed a psychotic depression after police attending her car accident incorrectly noted that her blood alcohol level was 0.14, when in fact this was the reading of the other driver.

Although the police acknowledged their mistake, the flow-on effect of a delay to the plaintiff’s insurance payments led to an obsessive fear that she was being judged or perceived as the drunk party in the incident.

The plaintiff sued the police for negligence as her obsession had been diagnosed as the cause of her psychotic depression.

THE DUTY OF CARE PROBLEM

Both the Court of Appeal and the High Court dismissed the claim as nervous shock and depression is not a reasonable general consequence of filling out a form erroneously.

However, Watson says the case shows the significance and complexity of duty of care questions.

‘During the argument in Tame’s case Justice Gaudron gave the best example,’ he says.

‘Sometimes the police are charged with the awful duty to go to a house to tell a parent that their child has died in a car accident. 

‘The relaying of that information could readily immediately inflict a psychological injury. 

‘But what duty of care can we attach to the police officer?  After all, the parent has a right to know the awful truth.’

ATTEMPTED MURDER VICTIM

As a further example, Watson points to his more recent case, Optus v Wright. 

‘This was a fascinating but sad case,’ he says.

‘Mr Wright was undertaking a course to become a call centre operator for Optus along with some other people. 

‘One of the participants, a deranged man now behind bars, took a dislike to Mr Wright and came up with a plan to murder him.’ 

The man lured Mr Wright up to a rooftop area and tried to throw him into the street below.  Luckily, he could not get Mr Wright over the top of the high railing.’ 

WAS OPTUS LIABLE?

Although Mr Wright did not suffer a physical injury, he was very badly psychologically damaged by the event.

‘The question was whether Optus should be held vicariously liable for the actions of the deranged man, and at trial Mr Wright succeeded and recovered a few million dollars,’ Watson says.

‘That result was overturned by the Court of Appeal, and the High Court declined to review it further.’

PSYCHOLOGICAL INJURY DEFINED

Watson says psychological injuries can be divided into two quite separate groups.

On one hand, you have psychological injuries consequential upon some physical injury.

‘Often such injuries are a sequel to serious physical injuries — depression is common.  Sometimes these can be very serious, but more commonly they are a relatively minor adjunct to the physical problems.’

The other group of psychological injury is the difficult one — cases of pure psychological injury.

‘This is where something has shocked someone, but they have not suffered any physical injury or loss themselves,’ Watson explains.

TRICKY RULES

Just about any kind of psychological illness can be the subject of a claim.

‘I have had claims involving Post Traumatic Stress Disorder (PTSD), depression, anxiety – and even traumatically-induced schizophrenia.

‘The most obvious example is where someone is told about the death of a close relative.  If that relative was killed by someone’s negligence, then a claim can become available.’

But Watson says the rules surrounding when such a claim can be available are arcane, complex and unsatisfying.

He says the law is not currently offering remedies for psychological injury very well.

HEALTHY LEVEL OF SCEPTICISM

‘Judges and practitioners have always been sceptical about psychological injuries as they can be easily feigned,’ he says.

‘You cannot produce an x-ray demonstrating a genuine psychological injury.  You need to be sceptical.

‘So, the law has moved slowly and carefully toward finding remedies for psychological injuries, especially pure psychological injuries.  Don’t get me wrong – the law is quite right to do this.’

A DIFFERENT UNIVERSE

At the ANZIIF 2019 Australian Liability Conference, Watson will have just one important message.

‘When considering psychological injuries, especially pure psychological injuries, think differently and carefully – you are in a different universe of discourse.’

Don’t miss hearing Geoffrey Watson speak at the 2019 Australian Liability Conference.