Tort Law and Mental Harm

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TORT LAW & Mental Harm : 

TORT LAW & Mental Harm Sania El-Najjar 1

Categorising duty situations : 

Categorising duty situations 2

Mental harm: What is mental harm? : 

Mental harm: What is mental harm? Nervous shock = mental harm Recognised psychiatric injury or mental illness Distinction between consequential mental harm and pure mental harm. 3

The law’s concerns about nervous shock : 

The law’s concerns about nervous shock Courts traditionally reluctant to compensate. Why? Fear of Fabrication Difficulties with causation The risk of indeterminate liability 4

Pure Mental Harm : 

Pure Mental Harm Can a plaintiff sue for mental harm? Section 23, Wrongs Act: 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. 5

Pure mental harm vs consequential mental harm : 

Pure mental harm vs consequential mental harm Distinction between: (1) cases where plaintiff suffers mental harm as a result of some other injury; and (2) where plaintiff suffers only mental harm 6

Categories of pure mental harm : 

Categories of pure mental harm Two categories: (1) plaintiff endangered but not injured by defendant’s negligence; and (2) plaintiff develops psychiatric injury as a result of someone else being injured or killed by defendant’s negligence. 7

Normal Fortitude : 

Normal Fortitude Reasonable Forseeability: Wrongs Act, section 72(1): A defendant does not owe a duty of care not to cause a plaintiff 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 The circumstances of the case – sudden shock Mental harm to a person of normal fortitude is more likely to have been reasonably foreseeable if the injury occurred as a result of a sudden shock. 8

Relevant considerations : 

Relevant considerations Wrongs Act, s 72 (2) For the purposes of this section, the circumstances of the case include: (a) whether 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 danger; (c) the nature of the relationship between the plaintiff and any person killed, injured or put in danger; and (d) whether there was a pre-existing relationship between the plaintiff and the defendant 9

Exception to normal Fortitude : 

Exception to normal Fortitude s72 (3) This section does not affect the duty of care of the defendant to the plaintiff if the defendant knows, or ought to know, that the plaintiff is a person of less than normal fortitude. 10

Third Party Claims : 

Third Party Claims s 73 (1) This section applies to the liability of the defendant for pure mental harm to the plaintiff 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 defendant 11

Third Party Claims cont. : 

Third Party Claims cont. s73 (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 s73 (3) No damages are to be awarded to the plaintiff for pure mental harm if the victim would be unable to recover damages from the defendant. 12

Tame v New South Wales [2002] : 

Tame v New South Wales [2002] Facts: The plaintiff was involved in a minor car accident. an error was made on the police report, attributing to the plaintiff the blood alcohol reading of the other driver, who was significantly over the legal limit. as a lifelong teetotaller, she was upset by this. while the mistake was soon corrected, she became obsessed with the matter and developed a psychiatric illness. she sued the police for negligence. 13

Tame v New South Wales [2002] : 

Tame v New South Wales [2002] Held: the court was unanimous in holding that the police officer owed no duty of care to the plaintiff three main reasons : it was not reasonably foreseeable that the police officer's mistake in completing the accident report might cause the plaintiff to suffer a recognisable psychiatric illness.. the police officer had a duty to include all relevant information about the accident, …would be inconsistent with this duty to require him also to take care to protect from psychiatric illness one of the people he was investigating. this sort of case should be dealt with via the law of defamation, not the law of negligence 14

Annetts v Australian Stations (2000) : 

Annetts v Australian Stations (2000) Facts: the plaintiffs' 16 year-old son was working as a jackaroo on a cattle station in a remote part of Western Australia. The plaintiffs were worried about him doing this, but had been assured by his employer (the def) that he would be closely supervised. After working for the defendant for seven weeks, the plaintiffs' son was sent to live alone as caretaker of another cattle station. 6 weeks later, he and a jackaroo from another station disappeared into the desert. 15

Annetts v Australian Stations cont. : 

Annetts v Australian Stations cont. they were not found. The plaintiffs (lived in NSW) were notified over the phone that their son was missing. Went to the area while the search was in progress, and were shown some of their son's belongings Over 4 months after the disappearance, they were notified by phone that the vehicle driven by their son had been found; later that day, they were informed that two sets of remains were found nearby. The father returned to WA to ID the body. The plaintiffs claim to have suffered psychiatric injury as a result, and sued the defendant. 16

Annetts v Australian Stations (2000) : 

Annetts v Australian Stations (2000) Held: All seven judges held that a duty of care was owed. 17

Bearers of Bad news : 

Bearers of Bad news Tame Case, Gummow & Kirby JJ: Policy reasons no duty of care owed to those bearing the bad news.. 18

Gifford v Strang Patrick Stevedoring [2003] : 

Gifford v Strang Patrick Stevedoring [2003] Facts: the plaintiffs are the teenage children of a man who was killed in a workplace accident. They suffered psychiatric injury and sued for negligence. the question is whether the deceased's employer owed a duty of care to the children . the plaintiffs did not witness the accident, but were told about it later on the same day. 19

Gifford v Strang Patrick Stevedoring [2003] : 

Gifford v Strang Patrick Stevedoring [2003] Held: Unlike Annetts, there was no assumption of responsibility in this case. however, the relationship between the parties in this case is similar to the relationship in Annetts in other ways… 20

Consequential Mental Harm : 

Consequential Mental Harm Courts have been much more willing to allow plaintiffs to recover for consequential mental harm. where the defendant's negligence results in the plaintiff suffering physical injury, and then the plaintiff suffers mental harm as a result of the physical injuries. the recent changes to the Wrongs Act also placed restrictions on recovery for this sort of mental harm. 21

Wrongs Act : 

Wrongs Act Section 74(1) the plaintiff is not entitled to recover damages from the defendant for consequential mental harm unless: (a) 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; or (b) the defendant knew, or ought to have known, that the plaintiff is a person of less than normal fortitude and foresaw or ought to have foreseen that the plaintiff might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken 22

Wrongs Act : 

Wrongs Act Section 74 (2) For the purposes of this section, the circumstances of the case include the injury to the plaintiff out of which the mental harm arose 23

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