Negligent Misstatement - template PDF

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Mental Harm & Nervous Shock Duty of Care Definition of Mental Harm CLA S 27 - mental harm other than consequential mental harm Pure Mental Harm CLA S 30 - Limitations in recovering from pure mental harm - P is only able to recover if: a) P witnessed at the scene, the victim being killed, injured or put in peril; OR - Wicks (2010) b)

P is a close family member (Parent/guardian, spouse/de facto, child,stepchild,sibling,stepsibling, half sibling)

CLA S 31 – The pure mental harm must be a recognised psychiatric illness. - Mounts Isa Mined (1970) Establishing a duty to not cause mental harm: CLA S 32 1) Duty of care if it is reasonably foreseeable that the plaintiff may suffer a recognised psychiatric illness from the defendant’s negligence. Recognised psychiatric illness – NOT FOR EMOTIONAL DISTRESS - Annetts (2002) 2) Consider: a. Whether harm was suffered from sudden shock – need not be sudden - Annetts (2002) b. Whether the plaintiff witnessed the incident being killed, injured or put in peril– involved in the aftermath - Wicks (2010) c. Nature of the relationship between the plaintiff & the injured/deceased – workplace – Mount Isa (1970) d. Pre-existing relationship exists between the plaintiff and injured/deceased – son - Annetts (2002) CLA S 32(2) – Plaintiff can ONLY recover if: (A) Plaintiff witnesses the incident & (B) Plaintiff is a close member of the family of the victim. Consequential Mental Harm CLA S 33 Damages for economic loss from consequential mental harm only awarded for recognised psychiatric illness

Breach CLA S 5B(1) - Not negligent, unless: CLA S 5B(1)(A) – Risk was foreseeable (a likely consequence) - Wyong v Shirt (1980); Shaw v Thomas [2010]. - Mason J: ‘Risk that is unlikely to occur still foreseeable.. risk which is not far-fetched & fanciful is real’. - Whether far-fetched or fanciful is determined on the facts of each particular case (Schiller v Gregory [1985]) - A foreseeable risk of injury also includes the possibility that other people may be negligent (McLean v Tedman and Brambles (1984)) - A small risk may not be far-fetched or fanciful (Nagle v Rottnest Island Authroity (1993)) CLA S 5B(1)(B) – Not insignificant (a significant risk) - Shaw v Thomas [2010] CLA S 5B(1)(C) – Reasonable person in defendant’s position would take those precautions (defendant’s conduct is unreasonable) – refer to CLA S 5B(2) CLA S 5B(2) – Determines whether a reasonable person would have taken precautions against a risk CLA S 5B(2)(A) – Probability that harm would occur if care were not taken - Boulton v Stone [1951] CLA S 5B(2)(B) – Seriousness of harm - more serious harm = higher degree of care- Paris v Stepney [1951] CLA S 5B(2)(C) – Burden of taking precautions – risk weighed against costs/inconvenience - Romeo (1998); Graham Barclay Oysters Pty Ltd v Ryan [2002] 211 CLR 540. CLA S 5B(2)(D) – Social utility to take precautions – social utility = greater reasonability -Hertfordshire [1954]; Watt v Hartforshire County Council [1954].

Causation CLA S 5D(1)(A) – Factual causation: The negligent act was the necessary condition of the loss. But for test - Adeels Palace (2009) Material contribution/cause of loss - Strong v Woolworths (2012) Increase Risk test - If a factor increases risk, apply this test CLA S 5D(1)(B) – Scope of liability: Should the defendant bear the responsibility for the loss? Apply precedent: Similar rulings to establish liability.

CLA S 5D(2) – Where the ‘But for’ test does not work Consider amongst other relevant things, why responsibility should be imposed on the defendant. Adeels Palace v Moubarak (2009)

Remoteness CLA S 5D(4) – Consider whether or not any why responsibility should be imposed on the defendant. REASONABLE FORESEEABILITY OF DAMAGE The Wagon Mound [1961]-[1967] a) Is the Kind/type of injury foreseeable - Hughes v Lord Advocate (1963) Doughty v Turner Manufacturing (1964) b) Is the manner/extent of injury foreseeable? - NORMALLY manner/extent in how the injury occurred is not relevant as long as the kind of damage is foreseeable. Doughty v Turner Manufacturing [1964]. EGG-SHELL SKULL RULE – Take the plaintiff as found - Smith v Leech Brain [1962] o The extent of harm need not be foreseeable as long as the kind of harm is R.F.: Hughes v Lord Advocate

Defences Contributory Negligence Intoxication Voluntary Assumption of Risk Obvious Risk Inherent Risk Recreational and Sporting Activities Risk Warnings Exclusion Clauses

Dangerous Recreational Activity Good Samaritans Illegality Skilled Practitioners Self Defence...