1B. Duty of Care - Psychiatric Injury

Question 1

PART 3 - MENTAL HARM - Definition can be found in…

Answer 1

Section 27, CLA 2002 (NSW)

Question 2

Section 27 - definition.

Mental harm that is a consequence of a personal injury of any other kind.

Answer 2

“consequential mental harm”

Question 3

Section 27 - definition.

impairment of a person’s mental condition.

Answer 3

“mental harm”

Question 4

A failure to exercise reasonable care and skill.

Answer 4

“negligence”

Question 5

“personal injury” includes:

Answer 5

(a) pre-natal injury, and
(b) impairment of a person’s physical or mental condition, and
(c) disease.

Question 6

mental harm other than consequential mental harm.

Answer 6

“pure mental harm”

Question 7

Application of Part

This Part (except section 29) applies to any claim for damages for mental harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

Answer 7

CLA 2002 (NSW) Section 28 (1)

Question 8

Section 29 applies to a claim for damages in any civil proceedings.

Answer 8

CLA 2002 (NSW) Section 28 (2)

Question 9

This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

Answer 9

Section 28 (3)

Question 10

Personal injury arising from mental or nervous shock

In any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock.

Answer 10

SECTION 29

Question 11

‘Mental or Nervous shock’ is not defined in statute.

Answer 11

(Wicks v SRA (NSW) 2010 HCA)

Question 12

‘Mental or Nervous shock’, as oppose to ‘sudden shock’ in s 32 (20)(a), may be referred to as a consequence

Answer 12

(Wicks v SRA (NSW) 2010 HCA

Question 13

‘shock’ in is a central expression to be notion of a “sudden and disturbing impression on the mind or feelings; one produced by an unwelcome occurrence or perception, by pain, grief or violent emotion (or joy), and tending to occasion lasting depression or loss of composure

Answer 13

(Wicks v SRA (NSW) 2010 HCA)

Question 14

This section applies to the liability of a person ( “the defendant” ) for pure mental harm to a person ( “the plaintiff” ) arising wholly or partly from mental or nervous shock in connection with another person ( “the victim” ) being killed, injured or put in peril by the act or omission of the defendant.

Answer 14

SECTION 30 (1)

Limitation on recovery for pure mental harm arising from shock

Question 15

The plaintiff is not entitled to recover damages for pure mental harm unless:

(x) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or

Answer 15

SECTION 30 (2)(a)

Limitation on recovery for pure mental harm arising from shock

Question 16

(x) The plaintiff is not entitled to recover damages for pure mental harm unless:
(y) the plaintiff is a close member of the family of the victim.

Answer 16

SECTION 30 (2)(b)

Limitation on recovery for pure mental harm arising from shock

Question 17

Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.

Answer 17

SECTION 30 (3)

Limitation on recovery for pure mental harm arising from shock

Question 18

No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.

Answer 18

SECTION 30 (4)

Limitation on recovery for pure mental harm arising from shock

Question 19

“Section 30 (2) provides that DOC is not found unless condition is satisfied”

Answer 19

(Wicks v SRA (NSW) 2010 HCA)

Question 20

Police Rescue - Mental Harm Case

Answer 20

Wicks v SRA (NSW); Sheehan v SRA (NSW) (2010) 241 CLR 60; [2010] HCA 22

Question 21

Section 30(2)(a) - “the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril or …”

“In this sense, it is not read just as something instant, but can be an extending period. People could continue still being injured while being removed from the train. “

Answer 21

(Wicks v SRA (NSW) 2010 HCA)

Question 22

• (I drove past the accident where my bro was killed, now I’m mentally messed case)

Answer 22

King v Philcox [2015] HCA 19

Question 23

Driving past the scene several times may not confer the notion of being present ‘at the scene’ (s 30(2)(a)) of the accident when the accident occurred

Answer 23

King v Philcox [2015] HCA 19

Question 24

30(2) The plaintiff is not entitled to recover damages for pure mental harm unless:

(b) the plaintiff is a close member of the family of the victim.

This also expands to siblings.

It is reasonably foreseeable for a family member to stumble into the scene of the accident and suffer PSYH.

Answer 24

King v Philcox [2015] HCA 19

Question 25

A relative is a person who is closely affected by the driver’s negligence that the driver should have them in contemplation as potentially affected.

Answer 25

King v Philcox [2015] HCA 19)

Question 26

Pure mental harm-liability only for recognized psychiatric illness

There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

Answer 26

SECTION 31

Question 27

DOC is not found unless condition (section 31) is satisfied.

Answer 27

(Wicks v SRA (NSW) 2010 HCA)

Question 28

SECTION 32 (1) Mental harm-duty of care

Answer 28

SECTION 32 Mental harm-duty of care

(1) A person ( “the defendant” ) does not owe a duty of care to another person ( “the plaintiff” ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

Question 29

For the purposes of the application of this section (s 32(1)) in respect of pure mental harm, the circumstances of the case include the following:

“whether or not the mental harm was suffered as the result of a sudden shock”,

Answer 29

SECTION 32(2)(a)

Question 30

For the purposes of the application of this section (SECTION 32 Mental harm-duty of care) in respect of pure mental harm, the circumstances of the case include the following:

“whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,”

Answer 30

SECTION 32(2)(b)

Question 31

For the purposes of the application of this section (SECTION 32 Mental harm-duty of care) in respect of pure mental harm, the circumstances of the case include the following:

“the nature of the relationship between the plaintiff and any person killed, injured or put in peril,”

Answer 31

Section 32(2)(c)

Question 32

For the purposes of the application of this section (SECTION 32 Mental harm-duty of care) in respect of pure mental harm, the circumstances of the case include the following:

“whether or not there was a pre-existing relationship between the plaintiff and the defendant.”

Answer 32

S 32(2)(d)

Question 33

‘sudden shock’ is no more than a circumstance that bear upon whether a DEF “ought to have foreseen that a person of nominal fortitude might suffer recognized PSYH”

Answer 33

• (Wicks v SRA (NSW) 2010 HCA)

Question 34

‘sudden shock’ is neither necessary nor a sufficient condition for finding that D owed DOC to not cause P ‘pure mental harm’.

Answer 34

(Wicks v SRA (NSW) 2010 HCA)

Question 35

‘sudden shock’ may be referred to as the event or cause.

Answer 35

(Wicks v SRA (NSW) 2010 HCA)

Question 36

‘shock’ in is a central expression to be notion of a “sudden and disturbing impression on the mind or feelings; one produced by an unwelcome occurrence or perception, by pain, grief or violent emotion (or joy), and tending to occasion lasting depression or loss of composure

Answer 36

• (Wicks v SRA (NSW) 2010 HCA)

Question 37

Section 32 (2) is not necessary or a sufficent condition to find DOC

Answer 37

(Wicks v SRA (NSW) 2010 HCA)

Question 38

Section 32 does not prescribe consequences as following from the presence or absence of the circumstances of s 32(2)(a) - (d)

Answer 38

(Wicks v SRA (NSW) 2010 HCA)

Question 39

According to Tame, s32 assumes that foreseeability is the central determent of duty of care.

Answer 39

(Wicks v SRA (NSW) 2010 HCA)

Question 40

A court cannot make an award of damages for economic loss for consequential mental harm resulting from negligence unless the harm consists of a recognized psychiatric illness.

Answer 40

SECTION 33 Liability for economic loss for consequential mental harm

Question 41

DOC also includes avoidance of PSYCH INJURY

Answer 41

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44

Question 42

In relation to sudden shock, liability is imposed for consequences which D judged by the standard of a reasonable person, ought to have foreseen.

Answer 42

TAME v NSW; Annetts v Australian Stations PL (2002) 211 CLR 317

Question 43

Expert evidence about foreseeability not decisive, however recognition of psychiatric illness does require expert evidence.

Answer 43

• (TAME v NSW; Annetts v Australian Stations PL (2002) 211 CLR 317)

Question 44

• It is not necessary that a particular type of disorder was reasonably foreseeable; it is sufficient that a class of injury, psychiatric illness, was foreseeable consequences of D’s conduct.

Answer 44

• (TAME v NSW; Annetts v Australian Stations PL (2002) 211 CLR 317)

Question 45

It is reasonably foreseeable that the negligence of the failure to instruct employees to a dangerous situation could cause other employees who might rescue to suffer a nervous shock and perhaps injuries.

Answer 45

• (Mount Isa Mines v Pusey (1970) 125 CLR 383) (Electric Switchboard Case)

Question 46

DOC may be established the notion that it is reasonably foreseeable, a family member, that after being told of the accident, a person of normal aptitude would go the scene and might suffer the mental harm or otherwise learns of the plight of the victim.

Answer 46

(King v Philcox [2015] HCA 19)

Question 47

: In the case, NSW Police’s duty to report to his superior is not a duty to make sure that a person doesn’t suffer the harm. If both duties were to be upheld, there would be a conflict, and if there is a conflict, the main duty would prevail

Answer 47

TAME v NSW

Question 48

ANNETTS owed DOC to James, thus only agreed that DEF was to supervise James and ensure safety. Relationship amounts to DOC

Answer 48

• TAME v NSW; Annetts v Australian Stations PL (2002) 211 CLR 317)

Question 49

• ON MENTAL FORTITUDE
• Normal fortitudes and sudden shock should not be preconditions for the recovery cases of negligent infliction of PSYH. WHY?
  
  • 1. Normal fortitude is imprecise and artificial as everyone is diverse and does not stand well with the egg-shell-skull rule.
  • 2. Sudden shock is not settled in Australia, recognized PSYH happens without sudden shock.

Answer 49

( TAME v NSW; Annetts v Australian Stations PL (2002) 211 CLR 317)

Question 50

PSYH or nervous shock must be more than grief or sorrow

Answer 50

(Mt Isa Mines v Pusey (1970) 125 CLR)

Question 51

• Mental harm from prolonged incidences should not be entitled to damages.

Answer 51

TAME v NSW; Annetts v Australian Stations PL (2002) 211 CLR 317 - HCA)

Question 52

What is the difference between CLA s 31 and s. 33?

Answer 52

S 31 prevents liablity for PURE MENTAL HARM unless harm consists of RECOGNISED PSYCHIATRIC ILLNESS.

S.33 prevents liablity for CONSEQUENTIAL MENTAL HARM unless is the harm is also recognised.