Death or Injury to a Third Party

Torts – Ramblings

• Death or Injury to a Third Party
• Common Law FUle (Baker v Bolton +SAwan v Williams)

• The common law rule in barker v Bolton and swan is that the death of a person cannot be complained as aa civil wrong by a 3rd party.
• Using the old common law rule in baker v Bolton, a husband could not complain that he was deprived of cofort, feellowis etc. that iswhe people used the compensation to relatives act (CRA)

• Common Law fule in Baker v Bolton whereby a 3rd party cannot claim damages for the death of another person still applies with respects to areas not within the Compensaiton to relatives Act i.e. some random stranger under the baker v Bolton + Swan cannot randomly claim damages as a third party for the death of some random

• However, Compensation to relatives Act s3(1) allows when a death is caused by a wrongful act, negect or default entitles a party oto maintain an action and recover damages against D who is laible for the death of the icitm.
• CRA s4(1) Allows a claim for damages against a negligent D’s action over a victims death to be derived from the benefit of a spouse, brother, sister, haf-sibling, chid of deceased or an executor aor admnsitrator who has been named.
• S5 CRA – there is only one action allowed for one person suing as a 3rd party against D for the death of victim for the benefit of everyone listed in S4, as CRA s 5provides.

• S3(1) CRA is a conditions precedent provision and is applied in a specific way.

• S3(1) (in Stella) has been interpreted strictly and narrowly → In stella, a guy with family went on free boat trip on a free ticket, free ticket exluded D fromlaibility of any injury succumbed by their negligence to D. Husband died, free ticket excluded liaibltiy from injury, which in turn, in Stella, excluded libility from death. Therefore famiy using s3(1)(4)(1)(5) could not bring a claim for damage sin Stella.
• However, f Nunan v Souther Railways – Restrctions on a deceased actions from a ‘contractual relationship’ i.e. a ticket from a train limiting liability, does not extend to relatives making a claim. In Nunan, relatives are a new separate party and are therefore not bound by restircitons on deceased claim for laibiltiy against Southern Railways. Nunan was not a party to contract and could therefore claim damages on behalf of deceased iudner CRA s3(1) + s4 + s5

• New cause of action in Nunan = no resition on what hy can lain

• In Crotty → Invovled interepreation of CRA s3(1) ‘Caused by wrongful act, neglect or default’ – CRA s3(1) in Crotty was construed not merely restricted to tortuitous claims, but also for statutory claim for damages.

• CRA s3(1) – CAUSED by a wrongful act, neglect or degault

• For a statutory claim under CRA s3(1) (HABER V WALKER) there is no need to prove causation using a butfor test (Chattel) or a remoteness/reasonable foreseeability test (Overseas tankship Wagon Mound 2) → in HABER v Walker – It is sufficient in making a claim udner CRA s3(1) to prove that there is just a causal link between D’s negligence and death of victim in order to make a claim.
• However, this has come under criticism, with LISLE SAYING THAT a test for a causal link should be derived from a common sense test as seen in Stramere

• Therefore ‘causation’ in s3(1) → 

• Haber – just a causal link → in Haber’s case, suicide of a girl due to car crash casued by D’s negligence
• Lisle → criticism → use common sense test as seen in march v stramere

• Once it is established that you may have a claim for damages udner s3(1), CRA, s4, s5 and you hav eproved that ther is a causal lin k(Haber, Lisle) and that there are no exclusiosn from laibility (Stella, Nunan)

• Then you see what particular damages you can claim

• Use Case la to interpret hat damages you can get.

• Nguyen v Nguyen – Damages for loss of domestic services, even if you weren’t gonna pay for themanyway, can be claimed
• Franklin – Damages for a reasonably excepted loss of pecuniary benefit which was going to be conferred on relative from deceased can be claimed
• Burgess v Florence Nigtingale – Couple ballet dancing → Cannot make a claim for loss of business services cannot be calied, however, a claim for a joint account b/w a husband a wife that shares expenses can be claimed as a wife in sharing ajoint account imparts a benefit for Husband.
• De Sales – Cannot deduct a persons claim for damages merely because they have good prospects of marriage, court cannot determine this in de sales, prospect of remarriage can only be considered as a factor in detemrinig overall decutions, not constitue a deduction in itself in de sales.

• Contingency of a good prospect of remarriage iis only elevant as a consideration for general contingencies in reuction of damages

• Survivial of causes of action in tort fter death

• What happens to a person if they ie, but has not had their claims resolved? The person who dies can either be P or D i.e. if just before Im gonna make a laim for damages due to D’s negligence, I die.
• Before in common law, there was a rule that if you died so did your claim for damages. However, this common law position has since been overruled by the LAW REFORM MISCELANEOUS PROVISIONS ACT s2(1)

• There cannot be any claim for exemplay damaes. However, under Law Reform s2(1) aboilishes the common law position, allowing some other person to make a claim on my behalf if I die.

• Cause for action for damages does survive even if original P dies Law Reform s2(1)

• However, under s2(2) Law Reform, there cannot be any claim for exemplary damages (if someone has died) + Where there is contributory negligence on bealf of 1t P, under s2(2) Law Reform, there cannot be any reference in calculating the damages to the prson’s estate. + in CN, no pain, suffering or mental trauma or los of expectiton of life of the deceased can be taken into accont
• Kupke → ven if 1st person dies, claim can still be made by second  (L

• Cause for ation still remains even if 1st P dies (Law Reform s2(1) + Kupke

• Contributory Negligene and compensation to others

• Under the Law Reform Act s13 → Use to be that CN would still allow for full recovery of damages under CN, however, CLA s5T → Principle of Apportionment in cases of contributory negligence apply to a relative making a claim under Compensation Relatives Act s3(1), 4, 5

• Therfore, CN, alothough under Lw Reform s13 use to still allow families to make a full claim for damages without deducitons, CLA s5T applies principle of apportionment onto families making a claim for damages on behalf of deceased (In CRA)

• CN → Use CLA s5R → Look for the SOC the plaintiff knew or ought to have known given the risk they faced → Caterson + Double Day v Kelly

• Action ofr Loss of Consortium

• Loss of Consotioum is pno longer a head of damages (i.e. company, help, affection, sex) → An aplicaiton of loss of consortium is not a valid heads of damage → CLA Schedule 2 Clause 1 → Under CLA Schedule 2 Clause 1 → abolition of common law rule that a spiuse can claim for a loss of consortium. Previously, common law position used to be that is ur spouse died, you van make a claim for loss of consortium, CLA schedule 2 has eliminated this ability for loss of consortium for a spouse as a heads of damage (affirmed, statutory interpretation of CLA Schedule 2 in RTA v Jelfs).

• However, can still make a claim under CRA s(3) for loss of domesic services (Nguyen).
• Consortium = intangible services (RTA v Jefs + CLA schedule 2( → intangible servies, love, affection, sex

• Action for loss of ervices

• Common law right o an empluer to recover damage for loss of services of an injured employee

• Commissioner for railways v Scott – P sued D, D’s negligence made ‘s employee unable to drive trains = loss of services

• Action for loss of services extends to all employee/emoloyer relationships. Not confined to domestic/household

• Employer can sue for a loss of services from an employee (Commissioner of NSW Railways)

• GIO (No common la right to recover for an ojired employee) → that is if I’m in the ADF doing work and I get injured, ADF cannot get damages on my behalf under CRA. Employers cannot make a claim for damages under CRA s3(1) on my behalf (GIO)

• However, If I get injured due to D’s negligence, th ADF can make a claim for a loss of business services

• Under CRA

• NSW Railway Commission

• However, there has been partical abolition of the common law right unde the complyees laibiltiy act 1991ss3-6

• Loss of consoriium – us eto be ok in common law, CLA schedule 2 + RTA jelfs = no more head sof damage for loss of cobsotrtin

• Death  still survive casue of action

• Law Reform s2 + Kupke

• Employees laibilit Act s3 – 6 – f an employee commits a tort fo which the ir employer is also liable, employer doesn’t hav to compensate the employer
• If I work of Artilelry, RAAC cannot sue for for loss of services because I changed jobs,/provide services fro some one else

• If ADF + Trooper commits a tort, Trooper commits tort which ADF is laible for, Trooper doesn’t need to compensate the ADF

• MoACA – s142 → No damages for loss of services relating to motor vehicle accidents.

• However, s142 does not apply to CRA claims
• Court cannot award emeplary/punitive dmaages in respect of motor accident

• MACA does not apply if 1st P doies and 2nd P makes claim fordamages for loss of services in accident
• If I lose your services in an accident (domestic or employee services), under mACA, you do not get any damages, however if u put a claim troug CRA → I can still make a claim for loss of services even if it is a mtor vehicle accident.
• Nterpretation of CLA s12 → Presbyterian church statutory cap does not apply to claim by an employer for loss o servies for employe’s services

• Not applicable, statutory cap does not apply, loss of weekly wages earnings does not equal loss of services

Negligence DOC

• Donogue v Stenson → Neighbourhood principle – To establish a duty of care, the starting point is the neighbourhood principle. Question is whether there was a reaosanble foreseeable risk of injury to the plaintiff, or a class of plaintiff of which plaintiff was a member of by the conduct of D.

• Consider other requirements based on:

• Perre v Apand – Incremental, salient features, reasonable foreseeability proximity, special relationship, control
• Dorst Yacht – Reasonably foreseeable for a class of P
• Graham Barclays – Where D is a government/statutory authority

• Kirby’s Caparo test has been rejected

• Perre – Portatoes infected case

• Sellingpotatoes infected with bacteria to P, P could not sell diseased seeds.
• D did owe a duty of care – although factors relating to DOC are expansive, they are established in this case.
• However, Court should move incrementally (and weight the factors) to prevent a floodgate of litigation and weight the factors to see whether there was a reasaonbly foreseeable ris of injury to P or a class of P (Donogue, Perre)

• Test of Control → Does D exercise a lot of controlover P?
• Proximity – Howclose
• Special Relationship

• Dorset Yacht –

• Reasonably foreseeable that D’s negligence would harm a class pf P, i.e. people who had property in the vicitnity of the plce

• Duty of officers to prevent Borstal from escaping their custody owed to peosons who they could reaosanbly foresee had property situated in the vicinity of the place

• Graham Oysters – DOC will be imposed on D towhen it is rasoanble in all the circumsatnces to do so,
• Proximity test in itself is insufficient + Rejected Caparo

• Public authoritie have a DOC to ensure a sagetu of waters including sewerage management. No breach as government exercised requisitesufficient SOC.

• Public Policy Considertions – Considerations that may negative D owing a DOC.

• Public policy consideratiosnt at may negative a DOC owed
• Shaw v Shavill – a nacy operating in wartime operations does no owe a DOC. Cth is immune from suit during war-time oeprations
• Police _ Public policy Considerations

• Hill v Chief Constabel – Police do not owe a DOC to members of the public, including potential victims of a serious offender when discharging their functions of investigating and suppressing crime.

• This is public policy, If police (Hill) had to owe a DOC to every member of the public when investigating or suppressing crime, thi would severely compromise their ability to suppress and investigate crime I nthe first place.
• Smith v Chief constable of sussex police.

• Argued that positive obligation of human right should have relevant ifluece on the common law.

• Smith v Chief – Still take into consideration Human Rights European Convention that there reaches a point wehre police do owe a DOC to the public, dependent on the circumstances. Obvioust at Police exercised a great deal of control, were made aware of the fact that this person was targeting P.

• NSW v Godfrey

• Jailer owes a DOC to preventprisoners from escaping

• Whilst jailer in NSW v Godfrey did not actually owe a DOC to the pregnant woman, they did owe a DOC to prevent the prisoner from escaping (Similar to orset Yacht) to prevent criminal activity ofto prevent prisoner from escaping and thus, prisoner would not be able to hrut others in the first place. Escape → Control can still be assertd.

• Foreseeabili, assumption of responsibility, control, extent of laibilti vulnerability, conflict and coference, remoteness

• Miller v Miller

• Joint Cirminal enterprise, Although P and D both engged in criminal exercise, once P stopped taking a part in the criminal enterprise (driving in car) and wante out, D owed a DOC. Becasuse P had withdrawn from an d was no logner participating in the crime of illegally suing the car when the accident happened, D then owed a DOC to P.

• Fact that P was acting illegally is no determinative when ijunred as a result of Ds negligence in stalbishing a DOC.

• When D crashed, D owed Passenger a DOC who ws not complicit in the ctrime

• Sullivan v Moody

• A DOC cannot be established if it is incompatible with other duties D must exercise

• D cannot owed a DOC Sullivan if it is incompatible with their duties whih D owes

• State community
• Police
• Teacher
• Medical practitioner
• Legal officers
• ADF

• D cannot owe a DOC of care to P if it is incompatible with their eponsiblities owed to P

• DOC owed by Manufactueres + builders + others to pevent injury arising from deective products and structures

• DOnogue – DOC for manufacturers owed to their custoemrs → engages in business of food and drink intedned for the consumption by public in udner duty to take care in manufaturers
• Grant v Australia Knitting → Define the precise relationship b/w duty to take care
• Oli Inflewood

• Architect owes a DOC to prevent a reaosanbly foreseeable risk from their building )desgined) to any reasonably foreseeable person who would use the uilding

• Architect is laiabel to anyone whom it could reasonably have been epected might be injured as a result of their negligence

• Architect I liable to anyone whom it could reaosanbly have been expecred might be injured as a result of their negligence.

• What an architect must do to avoid laibility for neggience is defiend by him using reaosnble care, skill and diligence in the perfroance of the work the undertake.

• Architect owes a DOC to anyone whom it would be reaosanbly expected would suffer an injury due to their negligence. Architect (Vogli) must execise due care, skill and diligence → SOC of architect is to exrcise due care, skill an diligence

• Liability of Occupiers and Landlords over defective remises

• Australia Safeways Stores → Courts rejecte traiional approach of occupiers laiiliy → when a person goes into a shop and makes a commercial transaction, there is an expectation that the store will exercise a DOC to provide a safe environment.
• Woolworths → Affirmed Aus Safeway Stores → Comercial transaction with store = store owes a DOC to customer.
• Woolworths liable for contributory negligence
• Hackshaw – An occupier of a premises owes a DOC to a person entering their land, even if they are a respasser, if it is reasonably foreseeable that the trespasser will be injured by D’s neglgiece.
• Hacksaw – An occupier of a preporty owes a DOC to a trespasser if it is reaosnbly foreseeable the trespasser cold e injured by the negligence of the occupier

• i.e. occupier shot at trespassers → D owes a doc to P to avoid injuring her by firing his rigle.

• Jones v Barnett – Landlord owes a DOC to prevent reasonably foreseeable injury occurring to prospective tenants due to the rneglgience in maintaining their occupied area.

• Limtied to the practical extent (Jones v Barnett) that the landlord can exercise
• Landlord have a DOC to take reaosnble steps to asveyain the existence of hidden defects. Jones v Barnett
• Landlords have a DOC to take reaosanble steps to avoid reasonable foreseeable risk of injury to their prospective tenants, members of their household

• Landlord owes a DOC to ensure premises is free from dangers that are reaosnblyfroeseeable to cause injury to tenants (Class of People_ whou would b reaosnbly expected to enter the premise.

• Romeo Conservaiton

• In estalbishin a breach of a DOC (i) Was there a reasonably foreseeable risk of injury of P due to D’s negligence? Must not be far-fetched or fanciful (Bolton v Stone)
• (ii) Shirt Calculus → What would a reaosanble person in D’s position would ave done in response to he reaosanble foreseeable risk of injury to D (What is the requisite SOC D should exercise) → Romeo + Rta + Bolton

• Whether risk was obvious
• Magnitude of the risk
• Seriousness of any potential injury
• Cost/inconvenienve of implementing saety precaustions
• Practicality and cost
• Social utility (CLA)

• Agar v Hyde – Board owes no DOC to monitor the rules of a game in a rugby game

• No such duty to monitor whether rules are being adhered to in a rugby game.
• Woods v multisport

• No DOC to be exercised for issuing of protective head gear when it was never really established in he rules/practice for there to be rugby gear.
• Too mu burden to impose such a duty of care.
• Not reasonable to provide headgear which was not even designed for the game (Woods v Multi-Sports) holding.

• RTA – RTA only owes a doc to drivers who drive safely and no careless drivers.

• DOC owed to rescuers

• D owes a duty of care if it is reasonably foreseeable that due to their negligence, the accident they caused would compel an individual (P) to help D as a result of their negligence. D owes a DOC to prevent injury fromoccurring to a rescuers.
• D’s negligent conduct whih laces themselves and other sin a dangerous situation D owes a DOC to the person who esponds to the situation.

• Not necessary to establish precise mater P sstains injuries, only that injures sustained were easoamble foreseeable. Injury to a clas of person whih might have been foreseen as a cosneuence

• CLA ss27-33 → DOC to rescuers

• Supervision and Control of P and third parties

• Smith v leurs

• Smith v Leurs 0 A parent is not vicariousl liable for the torts of their child, but they have a duty to supervise/control the child. Whether the duety has been breached will depend on the circumstances
• Parents are NOT vicariously liable for the actions of the child, but have a DOC to supervise/control their children

• Breach of a parents DOC to supervise/control child is dependent on the circumstances

• Whether child is mature enough etc.

• General rule is that one man is not esponsible for the acts of another in doing damage to a third

• Mobuy Triangy

• Owner of s shopping centre does not owe a DOC to prevent harm occurring to P due to a third parties criminal conduct.

• D had no control over the harmful activity, that is, has no control over the activities of the criminal thid party. The existence of attack is not sufficien, to impose a duty on an occupier of land a DOC to take reasonable care to prevent harm to somebody who lawfully enters their land from the criminal activities of a third party is unfair and impractical.
• Light used was for the purpsoes of aiding poele in the car park, not to prevent attack
• For a party to owe a DOC to control the conduct of a 3rd party, must be able to aster control over that third party.

• No control over what happened to P, attack by 3rd party was random and unpredictable and irrational.

• Modbury v Trinalgle

• Cole v South Tweed.

• Occupier of a hotel/premises that serves alchol oes not owe a DOC to prevent risk of injury of P when they are intoxicated, neither do they owe a DOC to prevent P from being intoxicated → Principle of personal autonomty

• COle v South Tweed – Occupier of premises serving alohol/Club does not owe a DOC to prevent an invotxiated person from risks of injury – personal autonomy → P ws intoxicated, D eft estalihment afte resufing managers offer of a drive home, D hit by a pedestrian.         Afirmed in Cal no. 14 → person who owns a hotel does not own a DOC to customers to monitor or minimise the service of alcohol nor do they owe a DOC to prevent an intoxicated customer from risks of injury caused by intoxication .

• CAL No 14 NO DOC Owed to prevent someone from getting drunk when serving alcohol (i.e. monitoring or minimising inebriation/intoxication) neither to they owe a DOC to prevent injury

• Ie. Calling to wife for help.

• Broughton Competitive Foods → Since Youths did not purchase anything, no commercial transaction -→ Therefore no DOC of Occupier to P.
• Stuart v Kirkland – There is no DOC owed by D to prevent P from inflicting elf-harm.

• Knowledge of risk + statutory power to prevent suicide = no DOC to prevent someone from inflicting self-harm

• Parissis v Bourke 

• Householders did not owed a DOC as social hosts, to their party goers
• Parissis → Householders who host a social party do not owe a DOC to guests getting pissed.
• Carmanthashire → Teacher owes a DOC to child as well as anyone else on a highway if the child is walking on the hild → DOC to prevent injury to people on a highway (reaosanbly foreseeable clas of people_ from a reaosanbly foreseeable risk of injury of a child walking down a street.
• Intovign

• Introvigne – Teacher owes a DO to students P to take positive steps to aintain the saety of P against risks that are reaosanble foreseeable.

• Similar to Smith v Leurs (Parent not laible for acitons of child, but has a DOC to control/superview child)

• Carthmanshire --. DOC to to child + highway child
• Introbigne → Teacher DOC to students to take positive steps against reaosanblyforeseeable risks towards student. → DOC teachers owe to child in tnrovigne extend to playground, classroom, school activities/sports
• NSW Bujdoso – Prisoners owe a DOC to reasonably foreseeable harm that could occur to prisoners.

• Prison Guards exercise a great deal of control over activities of prisoners and have a spcial relationship with them (NSW Bujdoso + NSW Godfrey) + (Dorset Yacht Club) → different fromgeneral law abiding community.

• Psychiatric Injury
• History of psychiatric injury → Before, courts were reluctant to recognise psychiatric injury (nervous shock) as something with which a DOC could be owed to → Due to lack of technology and understanding in what would constitute a ‘recognised psychiatric injury’

• Victorian Railways Commission
• Chester v Waverly Corporation – not reasonably foreseeable that council’s act of leaving trench would cause a psciatroc injury
• Law Reforms4(1)

• Development of psychiatric injury in modern tort law

• Mount Isa v Pusey → D did owe a DOC to P. Employer owes a duty to protect employee from physical and psychological injury.

• Recognised
• Relationship
• Perception

• Sudden Shock use to be arequireebt – Jasench v Cofey → However, was rejected in Tame v Annetts.

P bears onus of proof in proving that D owes a DOC to avoid causing psychiatric injury to P.

CLA S31(1)

• CLA s31(1) There must be a recognisable psychiatric injury

• Not mere anguish, grief or sorrow (Tame & Annetts + Wicks)

• Emotions only relevant in assessing damages

• CLA s32(1) – It was reasaonbly foreseeable that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric injury if reasonable care was not taken
• 31(1) recognisable psychiatric injury
• CLA s32(1) Recognisable psychiatric injury that was reasonably foreseeable to be suffered by a person of normal fortitude

• (Tame;;Annetts) → Normal Fortitude = Reasoanbl foreseeable, not far-fetched and facnficul like in annetts wehre the woman was paranoid , P’s response cannot be idiosynchriatic or extreme

• Reasonbly foreseeable for a person of normal fortitude (not a prerequisite, according to Tames Annets + Wicks, just a factor in consideration) → Not extreme or idiosynchriatic → not far fetched or fanfiful.

• Just a consideration (Wyong Shire Counci _ Tame _ Wick) → P can be outsie normal fortitude, but risk of psychiatric injury fetched or fancifcul

• CLA s32(1) + s31(1) Recognised psychiatric illness

• D may be laible if he/she had known or ought to have know that particular P was especially vulnerable to injury.

• CLA s31(1) – Recognisable psychhitric injury
• S32(1) (Tame and Annetts) – Reasonbly foreseeable that a person of normal fortitude would suffer psychiatric injury

• Wyong Shire, tame annetts, Wicks Railway – Not far-fetched or fancicul, must be reasonably foreseeable + P’s response must not be idiosyncratic or extreme (Tame)

• CLA s32(2) In determining reasonable foreseeability, Court considers the circumstances of the case (these are not prerequisites, but still factors considered) (Tame + Wicks) + Annetts

• (a) sudden shock
• Whether P witnessed, atht eh scene, A PERSON BEING KILLED, INJURED OR PUT IN PERIL

• Can take over a long period of time (Wicks) until vicitms are no longer in peril

• © Nature of the relationship b/w P and any person skilled, injured or put in peril

• Nature f relationship b/w P and person injured/killed/put in peril

• Restricted by s30(5) – to close fmembers of family (child, de facto, spouse, brother, sister, etc.)

• Whether there was a pre-existing elationship b/w P and D

• (a) whether mental harm was the result of sudden shock (Jasench v Coffey) requirement criticised in (Tame;Annetts)
• (b) Whether P witnessed., at the scene, erson injured, killed, put in peril
• © Nature of relationship between P and victim (must be familial, s30(5), close members of family) → this was interpreted as wide in (Wicks v Railway) for rescures at a scene, so many people injured that no relationship needed to be established
• (d) Whether ther was a pre-existing relationship

• CLA s32(1) Reasonable fortitidue → Reasoanbly foreseeable judge using this criteria (not prerequisites, merely factors to be considere, tame annetts, wicks)

• (a) sudden shock
• (b) whether they witnessed, at the scene, victim being killed, injured,put in peril
• (c) nature of relationship b/w P and victim

• Restricted by30(5)

• Wicks → rescue so many people, not required

• (d) whether there was a pre-existing legal relationship

• CLA s31(1) → recognisabl psychiatric injury

• Tame v NSW + Annetts

• Rejection of three control mchanisms – normal fortitude, sudden hock and perception as prerequisites. Tame v annetts merely held these control mechanisms to be ‘relevant considerations in assessing foreseeability’, but not actual deteminants in themselves. Not treated as a condition necessary to finding a DOC (Wicks)

• Nomal fortitude

• Limited as a personmay noe be of normal fortitude, but it is not far-fetched or fanciful that it is reasonly foreseeable they would suffer psychiatric injury

• Sudden hok limtid – aribitrary
• Direct perception/immediate aftermath → no longer a pre-requisite only relevant in assessing

• Tame – P became paranoid, was not of normal fortitude as it was not reaosnbly foreseeable that taking blood alcohol would cause psychiatric injury → P’s reaction was far fetched and fanciful andher behaviour was indiosyncratic and extreme (Tame +_ Wyong Shire Council v Shirt)
• Annetts – Was raosnbly foreseeable that exposing song to dangers (D exercise control over Hames) --. That their parent would suffer psychiatric harm.

• Was highly foreseeable that parents would suffer pure sychiatric shock

• S31(1)
• S32(1) – normal fortitude

• (a) sudden shock
• (b) witnessed at the scene
• © relationship with P
• (Any existing relation ship

• S30 → Psychiatric injury to the rescure → In cases of pure mental harm (NO psychiatric injury to P, just mental harm, there is a futher requiement

• S31(1) – recognisable psychiatric injury (Wicks, Tame, Annetts, Shirt)
• S30(1) → D inflicts harm on P ariding wholly or partly from mntal or nervous shock in connection with naohte rperson being killed, injured or pit in peril

• Wicks – construe widely, does not have to be an immediate shock, can be aseries of mental shocks – not confine to the shock of what railway rescures saw at firt.

• S30(2)

• (a) P witnessed a the scene people in peril, injured, killed

• Wicks → Does not have to be ‘at the scene’ can be until person is no onger in peril.
• Can take over a long period of time.

• () is a close member of the family of the victim

• Limited by s30(5) → What is a close member of the family

• However, in Wicks, so many people/victims that limitation by family ws no longer necessary. No longer need to be a relaitonshi, so many people

• S30 – Damages awarded for ure ental harm still reduced via CN
• Wick –

• Waterfall train disaster – wicks first on scene as a rescuer, saw death, suffered sychiatric injury 0 brought claim of negligence and beach of  DOC to prevent psychiatric injury occurring on a reasonably foreseeable peron of normal fortitude.
• Affirmed (Tame) → Reasonble foreseeability = central detemrinanct of a DOC to prevent psychiatric injury – normal fortitude, sudden shock, relationship, pre-existing relationship – witnessing → all used for assessing foreseeability

• DOC that D ought to have foreseen that a person of normal fortutde, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care was not taken

• S30 → series of mental shocks, taking over a period of time
• Seen in peril --. Peril can take over a period of time.
• Cannot assume thall all cases of deah, injury, peril takes place in an instant

• White v chief constable of south Yorkshire police – onlfact that P’s oomkiroes were sistaomed diromg dity dod mpt justif p’sc;a,s

• Dd only owed its duies to take care of employees and take reaosnble steps to protect them from physical harm. DOC of police does not extent to protect from psychiatric harm, especially when rthere was n obreach of DOC fromphysical injuy

• Property Damage

• Attia  British Gas 0 British Gase were liable for hthe subsequent shock and depression of Attia following the negligent destruction of her home
• Nervous shock from witnessing destruction of peroperty is actionable.
• Campbelltown v Mackay

• Action for nervous shock depends on the sudden sensory perception of a phenomenon which affronts or insults the P’s mand and causes recognisable psychiatric illness

• Pre-natal injury

• Watt v Rama – Drive of car owes DOC to an unborn foetus
• Lynch v Lynch – A mother driving negligently owes a DOC from foreseeable risks to unborn foetus.

• Wrongfullife

• Common law position was that Dr.s were liable for ‘wrongful life. McKay – Dr. only has a DOC to protect child not to DOC to terminate the ife of a child

• McKay – NO DOC to terminate life of child

• Harriton v Stephens – HCA dismissed a ‘wrongfullfie’ claim brought by a disabled woman born after negligent medical advice resulted in her morther’s pregnancy

• Wrongful Birth

• Cattanach → Common law position that duty owed for Dr. prevent brith if mother requested contraceptive treatment → Dr. was aible for payment of the child.
• This has been repealed by legislation CLA s70 → Dr. is no logner liable for a wrongful birth .

• Neglgience – Breach of Duty
• After establishing that D owed a DOC to prevent reasonably foreseeable risk of injury, it must be determined whether this duty of care owed was breached. P must prove, on the balance of probabilities and on the basis of facts (Shirt) that (i) there was a reasonably foreseeable risk of injury (ii) and whether D exercised the requisite standard of care i.e. if D met the reasonable standard of care = the response of a reasonable person in D’s shoes given the foreseeable risk (Shirt, Romeo, RTA).
• First step in establishing whether there was a breach of a DOCis whether the risk of injury sustained by P was reasonably foreseeable (Bolton). As long as it is not far-fetched or fanciful (Unlike in Bolton whereby theer was a risk of injury, but it was not reasonably foreseeable as chances of a cricket ball hitting person was far-fetched/fanciful)

• (Bolton v stone) not far-fetched or fanciful risk

• (ii) Once it is established that th risk is reasonably foreseeable → aa negligence calculus is used (Shirt, Romeo, RTA) is used to balance factors in orer to determine what a reasonable person in D’s [position would have done in response to the foreseeable risk

• What SOC should D apply

• S5B (1) D is not negligence unless there was a reasonably foreseeable risk of harm → determined whether
• (a) the risk was foreseeable → Not fa-fethed or fanciful (Bolton v Stone)
• (b) the risk was not insignificant
• © in the circumstances a reaosnble person in P’s position would have taken such precautions

• In determining s5B(1) → must determine what the standard of care D must exercise, if D falls below this standard of care, he has breached the DOC. SOC is determined by considering (CLA s5B 2 + Romeo + Shirt Calculus + RTA).

• SCommon law position of the Shirt Calculus was ebodied in the CLA s5(2)(2)

• Considers
• A) the probability of the harm occurring
• B) the seriousness of the harm
• C) the burden of taking precuations to avoid the risk of harm
• D) social utility

• A) probability
• B) seriousness
• C) burden/practicality of implementing safety precaustions
• D) Social utility

• S5b(2) When deterinig the standard of care – i.e. what a reasonable person in D’s shoes would have done given the reasonably foreseeable risk

• Probability, seriousness, burden/practicality, social utility
• Probability/Whether risk was obvious

• (RTA)BOLTON) even though a risk is foreseeable, the probability of it may be low, for example in RTA the probability of peoplejuping off the risk was low, whereas in Romeo, probability of someone jumping off was very unlikely,
• Magnitude of the risk – is the risk of injury veriy serious → usually more serious = a higher sSOC for the more vulnerable (Paris) higher SOC for more vulnerable peole
• Practicality  & Cost of Safety Precaustions (Burden) – SOC lowered by economic and practical constraints

• Conflicting reponsibilitie
• IN Romeo and RTa, very expensive to erect a fence, not practical to do so, not for every cliff face, expensive given the low probability of risk, despite high magnitude. However, in Shirt, putting signs to tell of shallow water did not outweight the need to alleviate the risk was not outweighted by the expense and difficulty of outing up signs.

• Social utility CLA s5B(2) -+ Romeo SOC is lowered and raised depending on effects which proposed safety implementations/measures have on society as a whole

• Romeo, erecting a fecne affects social utility

• S5b(1) reasonably foreseeable risk → Bolton, not farfetched or fanciful
• S5b(2)- determining soc needed to be exercised by D

• Probability
• Magnitude of risk
• Cost/practicality/purden
• Social utility.

• A DOC is discharged once D has exercised the requisite standard of care
• Standard of Care is also influences using an OBJECTIVE TEST of a ‘reasonble person’, it may
• Whilst the SOC is determined using an objective test of a ‘reasonble person’ in D’s shoes, SOC is subject tto change given the statuts of Defendant

• The SOC exercised by D is influenced by their status

• D’s inexperience

• Jones – Dr.s inexperience does not lower their SOC, inexperience of a Dr. is not a relevant considerations
• Imbree – Inexpereicned, unqualified driver does notahve a lower SOC

• MACA s141 → SOC owed is not affected b ythe driver’s inexperience
• Imbree + MACA – Drivers inexperience/unqualifiedness does not lower their duty of care

• MACA SOC owed is not affected by knowledge of driver’s inexperience. ‘

• Defendant’s characteristic
• D’s inexperience (Jones, Dr. inexperience, Imbree + MACA s141 → Dr. + Drivers inexperience)
• D’s characteristics

• Mental illness does not reduce SOC owed

• Carrier v Bonham
• Adamson v Motor Vechicle Trust – Lunatic not shoed a lower standard of care

• Adamson + Carrier → Crazy people no lower SOC
• Mullin v Mchale Watson → Child has a lower SOC
• Adambson + Carrier v Bonham → Crazy people= no lower standard of care
• Intoxication CLAs49(1) → Not relevant to consider ikelihood of someone becoming drunk in establishing a DO or SOC
• B) P is not owed a DOC merely because they are intoxicated
• C) Intoxicaiton does not lower or raise D’s duty owed to P

• If you are really drunk, does not affect SOC. CLA s49

• McHale v Watson + Mulin v Ricahrds → Child = lower SOC due to the childhood experience, unsoundness of mind
• Prevailing Practice

• Prevailing practice only serves as a guide for a standard of professional care, epect dr.s to follow procedure which other doctors would follow

• Mercer

• Tram injuries, no brake because common practice not to have brake → prevailing practice/common conducts only serve (Mercer) as useul guidelines, - simply because lots of peole do it does not make an unreasonable act reaosnble, prevailing practice in itself can be negligence
• Wodds v Multi Sports Hall

• Cricket guard → should have provided hel,et → no brwch of SOC, because of lack of industries use of helmets for spots protection (Woods Multi Sports Hall_ → due to previaloing practice as a guide lowers the SOC owed by D to P

• Rogers v Whitaker → I informing patients on medical treatment, inherent risks must be disclosed that a reasonable person would attach meaning/significance too

• Dr. SOC owed to reasonable risk involves giving advice to a patient (Rogers v Whitaker), that the patient would attach significan too

• Even with a special case of patient, what would they attach significance too? Bolam principle rejected in Rogers v Whitaker
• If a reasonable or vulnerable person would attach meaning to information, then in Rogers, Dr. must exercise a SOC in giving advice tailored towards patients needs.

• CLA s5o(1) – However, in CLA s5O → If Dr. uses methods in treatment which are prevailing practice, they have exercised requisite DOC. However, if s5P, this principle does not apply with respects to medical adice or information → Therefor Dr.s cannot rely on s5O to satisfy their SOC, Dr. in giving advice (ROgersv v Whitaker), must give advice that a reasonable person or sensitive patient would attach significane too.

• Medical teamtnet = prevailing practice ok CLA s5O
• However, CLA t5P (Rogers v Whitaker) → providing medical advice, bolam principle of prevailing ractice is not good, Dr. in exercising requisite SOC, must provide advice that a reasonable or sensitive patient wuld attach meaning too.

Temporal Considerations – Breach must be jucged from events at the time

        E v Red Cross – Aids infected blood, testing wasn’t available at time → Temporal considerations are taken into account, SOC judged on events at the time, @ time of AIDS, screening was not developed, therefore had exercised requiste SOC due to temporal considertions (Red Cross)

Standard knowege needs to be pimputd to D at the time of the tory