1. TORTS LECTURE 10 Mental Harm Clary Castrission Clary@40k.com.au

2. Tonight’s Lecture 1.Going through the Assignment 2.Mental Harm with problem question 3.Overview of Negligence

3. Mental Harm At common law- only type of pure mental harm where this liability is recognised psychiatric illness: Tame v NSW (2002) 211 CLR 317 Thus grief or sorrow doesn’t sound damages:Mount Isa Mines v Pusey (1970) 125 CLR 383

4. The 2 major cases Both heard together: –Tame v NSW (2002) 211 CLR 317 –Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317

5. Affecting Factors Was illness result of sudden shock? Direct perception of distressing events? Relationship between primary and secondary victim Relationship between Plaintiff and Defendant

6. 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, (b)impairment of a person ’ s physical or mental condition, and (c)disease. "pure mental harm" means mental harm other than consequential mental harm.

7. Mental harm 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. (eg Waverley Council v Ferreira [2005] NSWCA 418)

8. Mental harm 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 illness if reasonable care were not taken. Codifies the common law test for foreseeability of risk of mental harm in Tame v NSW; Annetts v Australian Stations Pty Ltd [2002] HCA 35

9. Mental harm 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.

10. Wrapping Up Torts Reform through the CLA Duty of Care under the CLA: Part 1A Obvious Risk Professional Negligence Mental Harm

11. Practice Question Arnold was a serving police officer who attended the scene of an horrific train derailment in Katoomba NSW, whereby six people were killed and many were injured. He was among the first ones at the scene following the derailment and was involved in the rescue operation by providing emergency first-aid and assisting the injured from the carriages. Arnold searched through the train where he saw dead bodies in horrible condition, as well as badly injured people. One of them, he recognised to be his high-school friend, Steve. Arnold suffered post traumatic stress syndrome, nervous shock and major depressive disorder. State Rail had failed to ensure the train’s “deadman’s” safety device was operating Arnold brought a claim for damages against State Rail alleging he had suffered psychiatric injury due to the negligence of State Rail in failing, inter alia, to ensure the train’s “deadman’s” safety device was operating, or was designed so as to operate in the event of the incapacitation of the driver. Advise Arnold about any actions in tort that he may pursue against State Rail.

12. Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22 (16 June 2010)