Negligence: Pure Physiatric Injury Weeks 5

Question 1

What are the 3 stages of the multi-factor approach and the authority for these?

Answer 1

1) Identify that the harm suffered must be recognized as capable of compensation in negligence and an infringement of a legally recognized right
2) Is the harm a reasonably foreseeable result of the defendant’s conduct?
3) Argue by analogy, induction and deduction from previously decided cases within a particular category of duty to identify the factors that were relevant to the duty of care arising

AUTHORITY: Sullivan v Moody

Question 2

What are the 5 possible factors assessed in establishing a novel duty of care?

Answer 2

1) Control - Defendants control over the risk of harm to the plaintiff (Gifford v Strang Patrick Stevedoring Pty Ltd)

2) Vulnerability - defined as a plaintiff’s ‘inability to protect themselves’:
- If there was something the plaintiff could have done then there is no vulnerability. (Gifford v Strang Patrick Stevedoring Pty Ltd)

3) Nature of the relationships
- Between the plaintiff and defendant and third parties

4) Coherency of the law
- If the court was to find a duty of care would it be consistent with other bodies of law ( e.g. contract law), obligations or duties owe by the defendant?

5) Indeterminacy
- Would recognizing a duty of care create a precedent or “expose [defendants] to a liability in an indeterminate amount of an indeterminate amount of time to an indeterminate class” of persons?

Question 3

What are the 7 steps in answering a negligence question on pure psychiatric injury

Answer 3

1) Make sure the the harm suffered is pure psychiatric injury before you being writing your answer, then;
2) Identify that only a novel duty of care would exist based on the harm
3) Identify the Multi-factor approach with authority (Sullivan v Moody)
4) Classify the harm as pure psychiatric injury using a definition and authority (Tame v NSW; Annetts v Stations Pty Ltd)
5) Assess reasonable foreseeability (Normal fortitude, direct perception, sudden shock and other factors)
6) Consider other relevant factors from the multi-factor approach (Control, vulnerability, relationship between parties ect.)

Question 4

What is the definition of pure psychiatric injury and the authority for it?

Answer 4

a plaintiff who is unable affirmatively to establish the existence of a recognizable psychiatric illness is not entitled to recover. Grief and sorrow are among the “ordinary and inevitable incidents of life”; the very universality of those emotions denies them the character of compensable loss under the tort of negligence”
AUTHORITY: *Tame v NSW; Annetts v Stations Pty Ltd