Civil Liability Act - Part 3 – Mental harm
 
27 Definitions

In this Part:

"consequential mental harm" means mental harm that is a consequence of a personal injury of any other kind.
"mental harm" means impairment of a person's mental condition.
"negligence" means failure to exercise reasonable care and skill.
"personal injury" includes:

(a) pre-natal injury, and
(b) impairment of a person's physical or mental condition, and
(c) disease.

"pure mental harm" means mental harm other than consequential mental harm.

28 Application of Part

(1) This Part (except section 29) applies to any claim for damages for mental harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

(2) Section 29 applies to a claim for damages in any civil proceedings.

(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.
29 Personal injury arising from mental or nervous shock

In any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock.

30 Limitation on recovery for pure mental harm arising from shock

(1) This section applies to the liability of a person ("the defendant") for pure mental harm to a person ("the plaintiff") arising wholly or partly from mental or nervous shock in connection with another person ("the victim") being killed, injured or put in peril by the act or omission of the defendant.

(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 peril, or
(b) the plaintiff is a close member of the family of the victim.

(3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.

(4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.

(5) In this section:"close member of the family" of a victim means:

(a) a parent of the victim or other person with parental responsibility for the victim, or
(b) the spouse or partner of the victim, or
(c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or
(d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.

"spouse or partner" means:

(a) a husband or wife, or
(b) the other party to a de facto relationship within the meaning of the Property (Relationships) Act 1984, but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify.

31 Pure mental harm--liability only for recognised psychiatric illness

There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

32 Mental harm--duty of care

(1) A person ("the defendant") does not owe a duty of care to another person ("the plaintiff") to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric psychiatric illness if reasonable care were not taken.

(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

(a) whether or not 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 peril,
(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.

(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

33 Liability for economic loss for consequential mental harm

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

Elements of Nervous Shock:

The notion of psychiatric illness induced by shock is a compound, not a simple, idea. Its elements are:

- On the one hand, psychiatric illness and,
- On the other, shock which causes it.
- Liability in negligence for nervous shock depends upon the reasonable foreseeability of both elements and of the causal relationship between them

Examples: Post-Traumatic Stress Disorder & Pathological grief disorder

The Victims:

• Primary victims
What needs to be reasonably foreseeable? Some personal injury, physical or psychiatric, to the primary victim

Page v Smith [1996] - Primary victims are victims whose damage arises directly from the negligent act.

The Facts: A victim of a road accident caused by another's negligence claimed damages solely for psychiatric illness.
The Decision: Primary victims are victims whose damage arises directly from the negligent act. The test for reasonable foresee ability based on hindsight rather than foresight is support by this case.
- Motor Accidents  Compensation Act 1999, s 141 bars claims to all except primary victims  as drivers, relatives or  those who were present at the scene at the time of the accident
 
•  Secondary victims
Secondary victims are those whose damage arises from either having a close relationship to the victim, or viewing the negligent act as it causes the damage to the primary victim.
 
1. Close Relationship - CLA s30.
Jaensch v Coffey - Damages recovered even if Plaintiff wasn’t at location of accident.
 
The facts: The plaintiff was the wife of a person injured in a road accident. She developed a psychiatric illness because of what she heard and saw following the accident, in the hospital.
The Issue: The key difference here is she was not present at the accident and her experience was limited to events at the hospital.
The Decision: High Court by unanimous decision held that she was entitled to recover damages for this negligence. The shock to Mrs. Jaensch was clearly foreseeable shock but a question arose as to whether reasonable foresee ability of nervous shock was enough to establish liability.

- S.30 CLA “Close member of the family” and “spouse or partner” defined
2. Proximity/nearness to accident or aftermath

Bourhill v Young - Miscarriage by mother

The Decision: A child born with deformities through the defendant’s negligence would have a claim for nervous shock suffered as a result of this.

Also, if the mother has suffered nervous shock, the courts have been ready to compensate for a miscarriage or the birth of a child with deformities caused by the shock.

Mount Isa Mines v Pusey - Reasonably foresee ability of illness - CLA s32.

The facts: The respondent witnesses, an employee suffering from an electric shock due to a short circuit. He assists the employee to an ambulance and later finds out that he had died. Suffers depression and schizophrenic reactions.

The Decision: High court determined that the scope of liability of the appealnt must be in respect to:

* The lack of relationship between those who sustained physical injury and the respondent
* The question of the relevance of the individual characteristics of the respondent and
* Whether the particular pathological conditions needs to be foreseeable.

Courts held that the foresee ability of the condition was not causally connected to the incident - CLA s32

Also note the distinction between "pure" mental harm arising directly from the negligent act, and "consequential" mental harm arising from other forms of personal injury - Civil Liability Act 2002 s.27

Hotelier/Publican to Intoxicated Patron

***IMPORTANT as maybe is in exam***

Duty of care arise when an issue of non-feasance (Failing to act) is imposed on an Hotelier(Occupier) and a drunken patron. Positive duties of care to act may be imposed where the defendant is in a pre-existing “protective” relationship with the plaintiff. This is seen in,

South Tweed Heads Rugby League Football Club Limited v Cole & 1 Or [2002] - Portrays the courts willingness not to protect those who failed to take reasonable care of themselves.

The Facts: On the evening of 26 June 1994, Ms Cole was seriously injured when struck by a motor vehicle driven by Mrs Lawrence. Ms Cole had been drinking at the Club’s premises and had consumed a large quantity of alcohol throughout the day.

• Ms Cole arrived at the Club at around 9.30am and attended a "champagne" breakfast at which free Spumante was available. When the free supply ceased Ms Cole and a friend purchased and consumed further bottles of Spumante. Ms Cole was refused service at the bar in the afternoon because of her intoxicated state. Ms Cole stayed at the Club and its surrounds for the day and was ejected between 5.30 and 6pm for being intoxicated. The Club had offered to call a taxi for Ms Cole as well as offering her the use of the Club bus and driver. One of the men Ms Cole was with had told the Club manager that he would look after her. At some time after this Ms Cole left the Club.

Mrs Lawrence's vehicle hit Ms Cole at around 6.20pm. She had been travelling within the speed limit, it was dark and she had her lights on low beam at the time of the accident. Mrs Lawrence's evidence was that she had not seen Ms Cole until it was too late to avoid the collision. Ms Cole, who was wearing black clothing, suffered serious injuries from the accident and has continuing disabilities.
 
The Decision:

• Ipp JA (Santow JA & Heydon JA agreeing):
 
“To a person stationary at the point of impact and facing north, Mrs Lawrence's vehicle must have been visible for at least 100 metres ...  A vehicle travelling at 70 kilometres per hour travels at 19.4 metres per second. Therefore, the vehicle must have been visible to Ms Cole for at least five seconds. It must also have been clearly audible. Yet it seems that she took no avoiding action. When the impact occurred, she was on the roadway in front of Mrs Lawrence's vehicle.

I infer that Ms Cole's grossly intoxicated state was the reason for her omission to take precautionary measures. This could be the only explanation for her failure, over a period of five seconds, to avoid the oncoming vehicle. ...

Ipp JA (Santow JA & Heydon JA agreeing): - Mrs. Cole’s duty of care was sufficient.
 
“Ms Cole's behaviour was so outside the norm in failing to move away from the path of Mrs Lawrence's vehicle that it becomes a matter of total speculation in attempting to establish what she was doing shortly before she was seen by Mrs Lawrence...
     I conclude that the evidence was not capable of establishing facts from which it could properly be inferred that Mrs Lawrence drove her vehicle negligently. I would uphold her appeal. ”

• Duty of the Club: Ipp JA - Subjective facts of her alcohol consumption.
 
“...[T]he source of alcohol she acquired that afternoon is a matter of mere speculation. There are at least three possibilities. The first is that Club employees served alcohol to Ms Cole within the building. The second is that she acquired alcohol from others outside the building. The third is that she was provided with alcohol purchased for her inside the building by friends or persons in whose company she was. In my view, there is no reliable basis whereby a greater degree of likelihood can be ascribed to any of the three.

Thus, in my opinion, while it was undoubtedly so that, when Ms Cole left the Club at about 5.30 pm, she was very drunk and had been drunk long before that time, the evidence was not capable of establishing on a balance of probabilities that, after the 12.30 pm bottle, she purchased alcohol from the Club or that the Club supplied alcohol to her.

• Duty of the Club: Ipp JA

“The conclusions to which I have come are determinative of the Club's appeal. In my view, the Club's appeal should be upheld on the ground that it was not established that it committed a breach of the duty of care found by Hulme J. Nevertheless, as the issues relating to the scope of the duty of care were touched on in argument, and as the case may be taken further, I shall express my views upon those matters and also upon the consequences of Ms Cole refusing the Club's offer of safe transport.”

• Extension of the duty of care?: Ipp JA:      
 
“In my opinion, the Club owed to Ms Cole only the ordinary general duty of care owed by an occupier to a lawful entrant. The scope of that duty should not be enlarged to an extent that required the Club to cease serving alcohol to Ms Cole when it knew that it was likely that she would become intoxicated, or when she was obviously intoxicated.

In my opinion, as a general proposition, considerations of personal responsibility, autonomy, practicality and certainty override those factors such as foreseeability, proximity, control and vulnerability which have persuaded some courts, in similar circumstances, to extend the scope of the general duty of care.

• Extension of the duty?: Ipp JA (Santow JA agreeing) - If the opposite situation occurred, duty of care will be established.

“There may, however, be circumstances which bring about a different result. For example, it may be that where a person is so intoxicated as to be completely incapable of any rational judgment or of looking after himself or herself, and the intoxication results from alcohol knowingly supplied by an innkeeper to that person for consumption on the premises, the scope of the duty of care of the innkeeper will be extended to require reasonable steps to be taken for the protection of the intoxicated person. But Ms Cole's case was not put on this basis and it is not necessary to deal with the issue.”