Negligence: PPI

Question 1

Definition?

Answer 1

• Pure psychiatric injury is where a psychiatric injury is caused independently of any physical injury to the plaintiff. Janech v Coffey

Question 2

Does plaintiff have recognised psychiatric injury/multi factorial test?

Answer 2

The court applies the multi-factorial approach to novel duties: Sullivan v Moody; Perre v Apand.
HOWEVER
The courts are reluctant to recognise new novel duties. Perre v Apand

Question 3

1. RECOGNISABLE PLAINTIFF

Answer 3

The harm suffered must be compensatable and an infringement of a legally recognised right. Sullivan v Moody
• Must be a medically recognised psychiatric injury Coates v SGIO (Tame v NSW)
• Grief, anxiety and sorrow are not considered a recognised psychiatric injury Coates v SGIO; tame v New South Whales; Annetts v Stations Pty Ltd
• A consequential Psychiatric injury from personal injury is NOT a novel duty. Will just be an established duty Nader v Urban Transit Authority

Question 4

2. REASONABLE FORESEEABILITY

Answer 4

• The damage must be a reasonably foreseeable consequence of D’s alleged negligence Tame v NSW
• The defendant must know or ought to know that their actions must cause harm Perre v Apand McHugh J
i.e Defendant knew, or ought to know that it could have avoided harm by not supplying contaminated seeds to the neighbouring properties.
A defendant does not breach a duty simply because a risk is foreseeable. Perre v Apand McHugh
Normal fortitude, direct perception and sudden shock are no longer preconditions of Pure Psychiatric Injury only relevant to determining reasonable foreseeability Tame v New South Whales; Annetts v Stations Pty Ltd

Question 5

Normal Fortitude

Answer 5

• A risk of psychiatric injury may not be reasonably foreseeable, if the injury is due to some abnormal sensitivity on the part of the plaintiff
• If the plaintiff is not of normal fortitude, they may still recover if:
• The defendant knows of the plaintiff’s special position; or
• If it is foreseeable that a reasonable (or “ordinary”) person in the plaintiff’s position would suffer psychiatric injury
• Foreseeable if not far-fetched or fanciful
• Only need to foresee injury of the “type” suffered, not the particular “kind”

Question 6

Direct Perception

Answer 6

• Where a plaintiff suffers pure psychiatric injury as a result of harm occasioned to someone else. Only if the plaintiff had direct perception of the accident or its aftermath Jaensch v Coffey
• The relationship between the plaintiff and the victim may become more relevant

Question 7

Sudden Shock

Answer 7

• Is the plaintiff’s pure psychiatric injury induced suddenly or by shock
• Also relevant to foreseeability
• Protracted suffering may pose problems for a claim

Question 8

3. OTHER FACTORS

Answer 8

Nature of Relationship
Control and Vulnerability
Coherency of Law
Inderteminate Liability
Commercial/Autonomous Freedom

Question 9

Nature of Relationship

Answer 9

• Was the plaintiff a member of an ascertainable class who may be affected by the defendants actions. Perre v Apand
• Were the parties in such physical or commercial proximity that they may be affected by a negligent act. Perre v Apand
• The closeness of the plaintiff and victim’s relationship is taken into account over legal relationship, although it cannot be anyone Mount Isa Mines Ltd v Pusey
• The relationship between plaintiff and defendant can extend duty in some circumstances Mount Isa Mines Ltd v Pusey; Annetts v Stations Pty

Question 10

CONTROL AND VULNERABILITY

Answer 10

• If the defendant exercises control over the plaintiff or the situation causing harm in some way, it will point towards a duty. Hill v Van Erp
• If the plaintiff has taken or could have taken steps to prevent the harm and was not induced by the defendant into taking those steps, no duty will be owed. Pyrenees Shire Council v Day
• How vulnerable was the plaintiff to incurring loss by reason of the defendants conduct? Perre v Apand J McHugh

Question 11

COHERENCY OF LAW

Answer 11

The duty must not undermine the integrity of pre existing relationships such as statutory and contractual obligations. Perre v Apand; Tame v New South Whales; Gifford v Strang Stevedoring Pty Ltd

Question 12

INDETERMINATE LIABILITY

Answer 12

• The courts must avoid to impose liability in an indeterminate amount for an indeterminate time for an indeterminate class. Bryan v Maloney
• Liability is indeterminate only when it cannot be realistically calculated. Perre v Apand
• Liability must not exceed fault. Caltex Oil v The Dredge Willemstad
• For policy reasons, a duty may be denied or restricted. Perre v Apand
• Courts will look at the number of potential plaintiffs and the control mechanisms, or restrictions that might be imposed on the duty Sullivan v Moody

Question 13

COMMERCIAL/ AUTONOMOUS FREEDOM

Answer 13

Novel
• Imposing a duty must not undermine an individuals ability to be responsible and make their own choices. Perre v Apand
• Imposing a duty must not prevent a person from pursuing their legitimate business interests. Hill v Van Erp