#6922 - Torts B Summary Mental Harm - Torts Law

MENTAL HARM – Particular Duty of Care Scenario (Use instead of normal DOC structure)

• Has the P suffered mental harm?

  • “Sorrow on its own does not establish damage…must be a lasting disorder” Mt Isa Mines v Pusey

  • It must be a “recognisable psychiatric illness” Gifford v Strang Patrick Stevedoring

  • A court cannot make an award of damages for economic loss for mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness. S 75

  • Mental Harm: psychological or psychiatric injury S 67

  • Legislation does not override common law S 71

  • Damages can be claimed for mental or nervous shock S23

    • In any action for injury to the person the plaintiff shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock 23

• Is it consequential or pure harm?

  • S67 Consequential Mental Harm: mental harm that is a consequence of any other injury of any other kind

  • Pure Mental Harm: mental harm other than consequential mental harm

  • Injury: personal or bodily injury – including pre-natal injury; psychological or psychiatric injury; disease; aggravation, acceleration or recurrence of an injury or disease

• PURE MENTAL HARM

  • Two types:

    • Where the defendant’s negligence directly causes the plaintiff’s mental harm – e.g. D’s negligence places them in a situation of apparent danger

    • Where the defendant’s negligence indirectly causes the plaintiff mental harm – the plaintiff suffers mental harm due to witnessing or learning of another being killed, injured or put in danger

  • WAS THERE A VICTIM (THIRD PARTY) Exceptions when P suffers harm seeing V die or injured or put in danger

    • S 73 (1) applies when P harm arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in danger by the act or omission of the defendant.

    • LIMITATIONS (2) The plaintiff is not entitled to recover damages for pure mental harm unless-

      • (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in danger; or

      • (b) the plaintiff is or was in a close relationship with the victim.

    • (3) P cannot get damages for pure mental harm if the victim could not have sued the D

  • Normal fortitude test (reasonable forseeability

    • Common law says that it is an important factor but not critical Tame & Annets but this received strong dissenting judgment

    • Wrongs Act S 72

      • (1) D does not owe a duty to P to not cause pure mental harm unless the defendant foresaw or 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 is: Was it foreseeable that a person of normal fortitude would suffer mental harm because of D’s actions?

          • The harm suffered must not be ‘far-fetched or fanciful’ per Wyong

          • Can’t be an extreme of idiosyncratic response Tame

• Must take into account the circumstances of the case. (If these can be proven, it will make it easier to satisfy the normal fortitude test) (S 72) (2)

  • (a) whether or not the mental harm was suffered as a result of a sudden shock ;

    • Annetts. Now, the fact that the psychiatric illness may have been caused by shock will continue to be relevant but the illness no longer must be caused by the shock.

  • (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger;

    • origins at common law (eg Jaensch v Coffeywhere P could only recover damage if illness was a direct result of the P’s proximity to the event that gave rise to the claim) but now see Annetts. In this case, it was considered arbitrary and abolished.

    • Can include them witnessing themselves

  • (c) the nature of the relationship between the plaintiff and any person killed, injured or put in danger

    • nature of relationship between P, D and victim (see Annetts&Gifford) Problems arise with ‘secondary victims’.

    • Relationship can be between P and themselves

  • (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

• Did the D know that P was a person of less than normal fortitude?

  • (2) if the defendant knows, or ought to know, that the plaintiff is a person of less than normal fortitude.

    • Then S72 DOES NOT APPLY and you go back to analysing Duty of Care in the normal way

• Other salient features to consider (satisfying these may preclude D from owing P a duty of care)

  • Conflict of Duties: to find duty in favour of P would conflict with someone elses duties eg. police officers’ statutory investigative and reporting duties in relation to car accident Tame

  • Incoherence in the law: Would other areas of the law better suited to addressing problems experienced by P Tame.

  • Assumption of Responsibility: If there is a nAntecedent relationship between the Pffs and the D, in circumstances where D had assumed responsibility not to expose them to the risk of psychiatric illness there is a duty of care. Annets

  • No Indeterminate Liability: If D specifically undertook to minimise the risk of harm to victim and by inference to minimise the risk of psychiatric illness to the Pffs. Annets

    • Question is do we want to impinge on the freedom of activity? Look at how large the class of P’s is.

  • Vulnerability: The vulnerability principle is applied in cases where the salient features of control, knowledge, reliance and assumption of responsibility exist. Annets

    • Note: that for present purposes vulnerability is linked to relationship between P and the D. Not concerned with the personality of the P - see ‘normal fortitude’.

  • (Level of) Control: D controlled the circumstances that gave rise to the risk to the Pffs The control over the risk of harm to victim and the risk of consequent...