Legislation Flashcards
Part 3 CLA
Mental Harm
ss27-33
s27
Definitions (mental harm)
- consequential mental harm means any mental harm that is a consequence of a personal injury of any other kind
- personal injury includes (a) pre-natal (b)impairment of a person’s physical or mental condition (c) disease
- pure mental harm means mental harm other than consequential mental harm
s29
29 Personal injury arising from mental or nervous shock
- In any action brought for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or partly from mental or nervous shock
s30
30 Limitation on recovery for pure mental harm arising from shock
s30(1)
This section applies to the liability of a person (D) for pure mental harm to a person (P) 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
s30(2)
The plaintiff is not entitled to recover damages for pure mental harm unless:
(a) the plaintiff witness, at the scene, the victim being killed, injured or put in peril, or
(b) the plaintiff is a close family member of the victim
s30(5)
close member of the family of a victim means:
(a) parent/parental responsibility for the victim
(b) spouse or partner
(c) child/stepchild/parental responsibility of victim
s32
32 Mental harm - duty of care
(1) A person does not owe a duty of care to another person 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
(CIRCUMSTANCES in (2))
s32(2)
(2) for the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following
(a) whether or not the mental harm was suffered as the result of a sudden shock
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril
(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant
s32(4)
This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff
s33
33 Liability for economic loss for consequential mental harm
- A court cannot make an award of damages for economic loss for consequential mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness
Part 8 CLA
Good samaritans
ss55-58
s56
56 Who is a good samaritan
- For the purposes of this Part, a good samaritan is a person who, in good faith and without expectation of payments or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured
s57
57 Protection of good samaritans
(1) A good samaritan does not incur any personal civil liability in respect of any act or omission done by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured
(2) This section does not affect the vicarious liability of any other person for the acts or omissions of the good samaritan
s58
58 Exclusion from protection
s58(1)
(1) The protection from personal liability conferred by this part does not apply if it is the good samaritan’s intentional or negligent act or omission that caused the injury or risk of injury in respect of which the good samaritan comes to the assistance of the person
s58(2)
(2) The protection of personal liability conferred by this part in respect of an act or omission does not apply if:
(a) the ability of the good samaritan to exercise reasonable care and skill was significantly impaired by reason of the good samaritan being under the influence of alcohol or a drug voluntarily consumed (whether or not for mediation), and
(b) the good samaritan failed to exercise reasonable care and skill in connection with the act or omission
s58(3) (paraphrased)
person not protected for act/omission done while impersonating health care/emergency services or while falsely representing as having special skills in connection with rendering assistance.
s5B
5B General principles
s5B(1)
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk that the person knew or ought to have known)
(b) the risk was not insignificant
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions
s5B(2)
NEGLIGENCE CALCULUS
In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)
s5B(2)(a)
the probability that harm would occur if care were not taken
s5B(2)(b)
the likely seriousness of the harm
s5B(2)(c)
the burden of taking precautions to avoid the risk of harm
s5B(2)(d)
the social utility of the activity that creates the risk of harm
s5(5) Employees Liability Act 1991 (NSW)
VICARIOUS LIABILITY
This act does not apply to a tort committed by an employee if the conduct constituting the tort:
(a) was serious and wilful misconduct
(b) or did not occur in the course of, and did not arise out of, the employment of the employee
s5O
Standard of care for professionals
(1) paraphrase - no liability in negligence if it is established that the service was widely accepted as COMPETENT PRACTICE at the time
s5P
s5O does not apply to duty to warn (see Rogers v Whitaker)
s5C
5C Other principles
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not itself give rise to or affect liability in respect of the risk and does not itself constitute an admission of liability in connection to the risk
s5E
5E Onus of proof
In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation
s5
In this part: "harm" means means harm of any kind, including the following (a) personal injury or death (b) damage to property (c) economic loss "personal injury" (a) pre-natal injury, and (b) impairment of a person's physical or mental condition, and (c) disease
s5D(1)
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation)
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so cause (scope of liability)
s5D(4)
5D
(4) For the purpose of determining the scope of liability, the court is to consider (among other things) whether or not and why responsibility should be imposed on the negligent party
s5R(1) paraphrased
The principles used to determine whether a person has been negligent also apply when determining whether a person has been contributorily negligent
s5R(2)
(2) for that purpose
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what the person knew or ought to have known at the time
s9 Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
damages can be apportioned between P and D ‘as the court thinks just an equitable’
s5S
In determining the extent of a reduction in damages by reason of CN, a court may determine a reduction of 1–% if the court thinks it is equitable to do so, with the result being that the claim for damages is defeated.
s50 (fifty)
No recovery where person intoxicated (paraphrased)
Court not to award damages unless harm would have occurred even without intoxication. Even then, there is a presumption of CN of 25% or greater.
ONLY if intoxication self induced
s30
30 Limitation on recovery for pure mental harm arising from shock
(3) (Paraphrased)
Damages awarded to P from pure mental harm reduced in the same proportion of any reduction recovered on the basis of the CN of the victim
s5F
Meaning of obvious risk
s5F(1)
(1) For the purposes of this Division, an ‘obvious risk’ to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
s5F(2)
(2) Obvious risks include risks that are patent or a matter of common knowledge
s5F(3)
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring
s5F(4)
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
s5G (paraphrased)
Injured persons presumed to be aware of obvious risks
(1) unless person proves on BoP that they were not aware
(2) person considered to be aware if they aware of the certain kind of risk, if not the precise nature, extent or manner of occurrence of the risk
s5H
No proactive duty to warn of obvious risks
s5I
No liability for materialisation of inherent risk (see Rootes v Shelton)
s5K definitions
‘dangerous recreational activity’ means a recreational activity that involves a significant risk of physical harm
s5L
No liability for harm suffered from obvious risks off dangerous recreational activities
(2) applies whether or not the plaintiff was aware of the risk (see Ollier v Magnetic Island Country Club)
