Mental HARM Notes PDF

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Summary

Structured checklist to answer mental harm questions in Torts...

Description

MENTAL HARM [CLA] Step 1.

State relevant legislation and define what Mental harm is … CLA 2002 (WA) Part 1B applies to claims for personal injury damages for mental harm> s5R … “Mental harm” means “impairment of a person’s mental condition” > s5Q

Step 2.

Identify what type of damage plaintiff has suffered… o

Consequential Mental Harm  Consequential mental harm means mental harm that is a consequence of a personal injury of any kind > s5Q [Go to Step 3]

o

Pure Mental Harm  Pure mental harm means mental harm other than consequential mental harm > s5Q [Go to Step 4]

CONSEQUENTIAL MENTAL HARM Step 3.1

…State: s5S(1) provides the requirements for a duty of care is owed by the defendant to

Step 3.2

Did P suffer a Recognised psychiatric illness  Court cannot make an award of personal injury damages for pecuniary loss for consequential mental harm unless the harm consists of a recognized psychiatric illness >s5T  Must be more than sorrow/distress > Mount Isa Mines  Expert evidence?

Step 3.3

Was the harm/illness foreseeable in the circumstances of the case?  Circumstances of the case include the personal injury suffered by the plaintiff >s5S(3) o I.e. Was mental harm/psychiatric illness foreseeable given the circumstances that caused the personal injury would have  The particular kind of mental harm [ie. schizophrenia] not required to have been foreseen so long as it is w’in the class of what was RF > Mount Isa Mines

Note: recognised harm is narrower than recognisable harm Note: Person of normal fortitude not an independent requirement, and simply part of foreseeability test >Tame; Annetts further affirmed in Gifford v Strang; Guerla

PURE MENTAL HARM Step 4.1

…State: s5S(1) provides the requirements for a duty of care is owed by the defendant to

Step 4.2

Recognised psychiatric illness?  Must be more than sorrow/distress > Mount Isa Mines  Expert evidence?

Step 4.3

Was the harm/illness foreseeable in the circumstances of the case? Given these considerations, is it RF that a Ptf in this position would develop a psych injury? Is the Ptf in the “danger zone”? … the particular kind of mental harm [ie. schizophrenia] not required to have been foreseen so long as it is w’in the class of what was RF > Mount Isa Mines

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Circumstances for PURE MENTAL HARM > s5S(2) NOTE: Circumstances are NOT PRECONDITIONS just factors to be taken in to account o

Mental harm suffered as a result of a sudden shock> s5S(2)(a)  HOWEVER Direct perception/sudden shock is NOT required but can be considered > Annetts

o

Witnessed at the scene, a person being killed, injured or put to peril > s5S(2)(b)  Was plaintiff present at the accident or shortly after the accident? > Wicks v State Rail Authority  Someone who is killed or put in peril is not something that begins and ends in an instance > Wicks v State Rail Authority HOWEVER  Duty was owed despite plaintiff went to hospital after accident > Jaensch v Coffey  Direct perception test was rejected > Annetts; Tame

o

Nature of relationship between Plaintiff and person injured, killed or put in peril > s5S(2)(c)  Was there a “Close Tie of Love and Affection”?  Close relationship with parent and child > Annetts [Son went to jackaroo, mother called employer]  Spouses > Jaensch v Coffey [Husband in motorcycle accident, wife went to visit in hospital]  Family relationships (parents + children) > Gifford v Strang [Husband crushed dead, mom+children sued] HOWEVER  Not a requirement, could be a rescue cases > Wicks v State Rail Authority

o

Pre-existing relationship between Plaintiff and Defendant > s5S(2)(d)  Created? Parents phoned the employer who reassured them, otherwise they wouldn't have allowed son to go > Annetts  Pre-existing? Children form an obvious category of psychiatric harm in employer contemplation for employee (employer –employee relationship) > Gifford v Strang

NOTE:  If psychiatric harm is from work stress, THEN consider the contractual obligations. Courts reluctant to allow employee claim for work stress > Koehler v Cerebos (Australia) Ltd  Circumstances might be more stringently applied in mass disaster >Alcock v Chief Constable...