LAW OF TORTS

Weekend Lecture 1B
Lecturer: Greg Young
greg.young@lawyer.com

Tort of Negligence
- Duty of Care
NEGLIGENCE AND FAULT IN
TORTS
FAULT

INTENTION NEGLIGENCE

TRESPASS
NEGLIGENCE
CARELESS the action
 NEGLIGENT TRESPASS
• Intentional or negligent act of D which
directly causes an injury to the P or his
/her property without lawful justification
• The Elements of Trespass:
– fault: intentional or negligent act
– injury must be direct
– injury may be to the P or to his/her property
– No lawful justification
 NEGLIGENT TRESPASS
• While trespass is always a direct tort, it is not
necessarily an intentional act in every instance.
It may be committed negligently
• Negligent trespass is an action in trespass not
in negligence:
• Where the facts of a case permit, it is possible
to frame an action in both trespass and
negligence on the same facts
• Williams v. Molotin (1957) 97 CLR. 465.
 What is Negligence?
• It is the neglect of a legal duty
• It involves the three elements of
• duty
• breach;
• resultant damage
 Negligence: The Elements

Duty of care

Negligence
Breach

Damage
 Negligence: The Early Cases
• Heaven v. Pender (1883)
• (Defective equipment supplied to plaintiff painter)
• The dicta of Brett MR:
• whenever one person is by circumstances placed in such a
position with regard to another, that every one of ordinary
sense who did think would at once recognise that if he did
not use ordinary care and skill in his own conduct with
regard to those circumstances he would cause danger or
injury to the person or property of the other (person) a duty
arises to use ordinary care and skill to avoid such danger.
 Donoghue v. Stevenson
• Ginger beer-decomposing snail-P has shock-
gastroenteritis
• Privity of contract. Issue was whether D owed P
a duty
• Dicta of Lord Atkin
• You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure
your neighbour. Who then in law is my neighbour? The
answer seems to be persons who are closely and directly
affected by my act that I ought reasonably to have them in
mind to the acts or omissions
 NEGLIGENCE
• Grant v Australian Knitting Mills (1936)
• The application of the rule in D v S
• a manufacturer of products, which he sells in such a
form as to show that he intends them to reach the
ultimate consumer in the form in which they left him
with no reasonable possibility of intermediate
examination, and with the knowledge that the absence
of reasonable care in the preparation or putting up of
the products will result in an injury to the consumer’s
life or property, owes a duty to the consumer to take
that reasonable care
 NEGLIGENCE: THE DUTY OF
CARE
• The dicta of Lord Atkin in Donoghue v Stevenson:
– whenever one person is by circumstances placed in such a position
with regard to another, that every one of ordinary sense who did
think would at once recognise that if he did not use ordinary care
and skill in his own conduct with regard to those circumstances he
would cause danger or injury to the person or property of the other
(person) a duty arises to use ordinary care and skill to avoid such
danger.
– You must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your
neighbour/another
 Negligence: (Duty of Care)
• The Duty of care is the obligation to avoid
acts or omissions which are reasonably
foreseeable to cause damage to another.
• When does one owe a duty of care?
• Whenever one is engaged in an act which he
or she can reasonably foresee would be
likely to injure another person, one owes a
duty of care to that other person
 The Modern Requirements for
the Duty of Care
Jaensch v. Coffey (1984) per Deane J. p587-8
• A duty situation would arise from the following
combination of factors
• A reasonable foreseeability of real risk of injury
to P either as an identifiable individual or a
member of a class of persons
• The existence of proximity between the parties
with respect to the act or omission
• Absence of any rule that precludes such a duty
 What is Reasonable
Foreseeability?
• Reasonable foreseeability presupposes an objective
or a reasonable person’s standard
• The reasonable person is an embodiment of
community values and what the community expects
of a responsible citizen
• The concept allows us to evaluate D’s conduct not
from his or her peculiar position, but from that of a
reasonable person similarly placed
• Reasonable foreseeability is a question of law
 Reasonable Foreseeability: Case
Law
• Nova Mink v. Trans Canada Airlines [1951]
(Air traffic noise causing minks to eat their young ones-No
foreseeability)
• Palsgraf v. Long Island R.R. Co. (1928)
(Railway guards helping falling passenger-fireworks
explosion causing injury to plaintiff.-No foreseeability)
• Chapman v. Hearse (1961) (Car accident-Dr. stops
to help-gets killed by another vehicle-action against D who
caused initial accident- Foreseeability upheld)
 The Scope of Reasonable
Foreseeability
• United Novelty Co. v. Daniels (1949)
(Workers cleaning coin operated machine with flammable
substance-rat in machine runs into fire place causing fire
damage and death-Foreseeability upheld)
• Jaensch v. Coffey (1984) (Car accident-spouse
goes to hospital to see injured partner-suffers shock from
what she sees and hears of husband’s condition-action against
D who caused accident-Proximity-Duty-Foreseeability
upheld)
 Proximity
• Jaensch v. Coffey (1984) (Car accident-spouse goes to
hospital to see injured partner-suffers shock from what she sees
and hears of husband’s condition-action against D who caused
accident-Proximity-Duty)
• Gala v. Preston (1991) (Duty relationship between
parties engaged in an illegal enterprise-No proximity-No duty)
• Nagle v. Rottnest Island Authority (1993) (P injured
while diving into a rocky pool- pool promoted and operated by D-
Proximity, Duty upheld) Held: the board, by encouraging persons
to engage in an activity, came under a duty to take reasonable care
to avoid injury to them and the discharge of that duty... require
that they be warned of any foreseeable risks of injury associated
with the activity so encouraged
The Main Features of Proximity

PROXIMITY

Degree of proximity Evaluation

Physical
Evaluation
of legal
and policy
Circumstantial
considerations of
what is fair
and reasonable
Causal
 DUTY CATEGORIES: To
whom is duty owed?
• One owes a duty to those so closely and directly
affected by his/her conduct that she ought reasonably to
have them in contemplation as being so affected when
undertaking the conduct in question.
• Examples:
- Employer/Worker
- Driver/Other Road Users
- Doctor/Patient
- Consumers, users of products and structures
• Donoghue v Stevenson
• Voli v Inglewood Shire Council
• Bryan v Maloney
– Users of premises etc.
• Australian Safeway Stores v Zaluzna
 Proximity - Criticised
• Sullivan v Moody (2001) 207 CLR 562

Facts – In separate proceedings, fathers were denied access to their children as

Dr Moody (employed by the SA Dept of Community Welfare) incorrectly
diagnosed sexual abuse; The fathers sued in negligence for psychiatric injury.
Judgment – Appeals dismissed as no duty of care exists to protect a suspected
abuser from emotional distress
Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ:
[573] “…foreseeability of harm is not sufficient to give rise to a duty of care”
[578] “The formula is not ‘proximity’. Notwithstanding the centrality of that
concept, for more than a century … it gives little practical guidance in
determining whether a duty of care exists in cases that are not analogous to
cases in which a duty has been established”
 Unborn Child
• The unborn child:
– The duty is not simply to take reasonable care in the abstract but to
take reasonable care not to injure a person whom it should reasonably
be foreseen may be injured by the act or neglect if such care is not
taken (Winneke CJ/ Pape J)
– There can be no justification for distinguishing between the rights…
of a newly born infant returning home with his /her mother from
hospital in a bassinet hidden from view on the back of a motor car
being driven by his proud father and of a child en ventre sa mere
whose mother is being driven by her anxious husband to the hospital
on way to the labour ward to deliver such a child ( Per Gillard J in
Watt v Rama)
- Lynch v Lynch (1991)
 Unborn Child
• Wrongful life cases
– Harriton v Stephens [2006] HCA 15 (9
May 2006) The specific duty of care postulated was
a duty upon Dr Stephens to diagnose Rubella and then
advise Mrs Harriton to terminate the pregancy.
– Appeal dismissed (7 to 1 majority)
– Crennan J (Gleeson CJ, Gummow & Heydon JJ
agreeing), Hayne J and Callinan J in separate
judgments dismissed the Appeal
– Kirby J dissented
 Harriton v Stephens
• Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)
• [244] “It was not Dr P R Stephens's fault that Alexia
Harriton was injured by the rubella infection of her
mother. Once she had been affected by the rubella
infection of her mother it was not possible for her to enjoy
a life free from disability. ... Dr P R Stephens would have
discharged his duty by diagnosing the rubella and advising
Mrs  Harriton about her circumstances, enabling her to
decide whether to terminate her pregnancy; he could not
require or compel Mrs  Harriton to have an abortion. ”
 Harriton v Stephens
• Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)
• [249] “It is not to be doubted that a doctor has a duty to advise a
mother of problems arising in her pregnancy, and that a doctor has a
duty of care to a foetus which may be mediated through the mother
[403]. However, it must be mentioned that those duties are not
determinative of the specific question here, namely whether the
particular damage claimed in this case by the child engages a duty of
care. To superimpose a further duty of care on a doctor to a foetus
(when born) to advise the mother so that she can terminate a
pregnancy in the interest of the foetus in not being born, which may or
may not be compatible with the same doctor's duty of care to the
mother in respect of her interests, has the capacity to introduce
conflict, even incoherence, into the body of relevant legal principle ”
 Harriton v Stephens
• Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)
• [251 & 252] “Because damage constitutes the gist of an action in
negligence, a plaintiff needs to prove actual damage or loss and a court
must be able to apprehend and evaluate the damage, that is the loss,
deprivation or detriment caused by the alleged breach of duty. ... In the
Court of Appeal, Spigelman CJ recognised that in cases of this kind, to
find damage which gives rise to a right to compensation it must be
established that non-existence is preferable to life with ...
• A comparison between a life with disabilities and non-existence, for
the purposes of proving actual damage and having a trier of fact
apprehend the nature of the damage caused, is impossible. ”
 RESCUERS
• There are two separate issues in rescue:
– The ‘duty’ to rescue
– The duty of care owed to the rescuer
• There is no positive legal obligation in the common law
to rescue - The law does not ‘cast a duty upon a man to go to the
aid of another who is in peril or distress, not caused by him
• There may however exist a duty to rescue in master
servant relationships or boat owner and guest
relationships for instance
– Horsley v Macleran (The Ogopogo) (1971) 22 DLR
• One is only required to use reasonable care and skill in
the rescue
 THE DUTY OWED TO
RESCUERS

• The rescuer is generally protected : torts recognizes the

existence of a duty of care owed to the rescuer

• The issue of volenti-non fit injuria: This principle does

not seem to apply in modern tort law to rescue situations
– Note however the case of Sylvester v GB Chapman Ltd
(1935) :attack by leopard while attempting to put out a
smoldering cigarette in straw
 THE DUTY OWED TO
RESCUERS
‘The cry of danger is the summons to relief. The law does not
ignore these reactions of the mind.. It recognizes them as normal…
and places their effects within the range of of the natural and the
probable [and for that matter the foreseeable] per Cardozo J in
Wagner v International Railway Co. (1921)
- Chapman v Hearse
- Videan v British Transport Commission (1963) (rescue
attempt to get a child trespassing on railway line)
Rescuers may recover for both physical injuries and nervous shock
- Mount Isa Mines v Pussey (1970)
The US fire-fighter’s Rule does not apply in Australia and the UK
- Ogwo v Taylor (1988) AC 431
 Unforeseeable Plaintiffs

• In general the duty is owed to

only the foreseeable plaintiff
and not abnormal Plaintiffs.
– Bourhill v Young [1943] AC 92
– Levi v Colgate-Palmolive (1941)
– Haley v L.E.B. [1965] AC 778
 IMPACT OF THE CIVIL
LIABILITY ACT ON THE DUTY
OF CARE
• The Civil Liability Act 2002 together with the
Civil Liability Amendment (Personal
Responsibility) Act 2002 govern the law of
negligence in NSW.
– The Civil Liability Act 2002 was enacted 28th May
2002 and received assent on 18 June 2002
• Rationale behind the legislation:
– to limit the quantum of damages for personal injury and death
in public liability instances; resultantly lowering insurance
premiums.
– to discourage ‘over litigation’, by the imposition of restrictions
and obligations and responsibilities upon plaintiffs and counsel
 The Rationale for Reform
• [I]t's my view that this country is tying
itself up in tape because of over litigation,
a long-term trend to see us litigate for
everything, to try to settle every problem
in our lives...by getting a big cash payment
from the courts....a country as small as
ours can't afford to have the American-
style culture of litigation". (Bob Carr)
 The Rationale for Reform
• ‘We need to restore personal responsibility and
diminish the culture of blame.That means a
fundamental re-think of the law of negligence,
a complex task of legislative drafting.
There is no precedent for what we are doing,
either in health care or motor accident law, or
in the legislation of other States and Territories.
We are changing a body of law that has taken
the courts 70 years to develop’ (Bob Carr)
 The Approach to Reform:
Government’s View
• We propose to change the law to exclude
claims that should never be brought and
provide defences to ensure that people who
have done the right thing are not made to pay
just because they have access to insurance
• We want to protect good samaritans who help
in emergencies. As a community, we should be
reluctant to expose people who help others to
the risk of being judged after the event to have
not helped well enough (Bob Carr)
 Torts Law Reform: Stage 1
• The 1st stage aimed both at the
number of claims as well as at the
cost of claims
– restriction of legal advertising, minimising the
promotion of claims and a restriction on the
amount recoverable for legal costs
– capping damages, applying a higher discount
rate to the final lump sum figure, and the
abolition of punitive damages
 Torts Law Reform: Stage 2
• The 2nd Stage: reforms include a range of broad-based tort
reform measures, including a fundamental re-assessment
of the law of negligence
– addressing the concept of reasonable foreseeability in the law of negligence;
– protection of good samaritans who assist in emergencies;
– waivers for risky activities;
– statutory immunity for local government; public authorities which fail to
exercise their powers will not breach any duty;
– changing the test for professional negligence to one of 'peer acceptance';
– abolishing reliance by plaintiffs on their own intoxication; preventing people
from making claims where they were injured in the course of committing a
crime;
– provide a wider range of options for damages; creating a presumption in
favour of structured settlements.
 Claims excluded from operation
of the Civil Liability Act: s3B(1)
• a) an intentional act that is done with intent to cause injury or death or
that is sexual assault or other sexual misconduct. Note Part 7 does not
apply to intentional torts done with intent to injure.
• (b) dust diseases under the Dust Diseases Tribunal Act 1989
• (c) personal injury damages where the injury or death concerned
resulted from smoking or other use of tobacco products
• (d) actions governed by Part 6 of the Motor Accidents Act 1988 and
Chapter 5 of the Motor Accidents Compensation Act 1999 except the
provisions that subsection (2) provides apply to motor accidents
• (e) Workers Compensation Act 1987, Workers Compensation (Bush
Fire, Emergency and Rescue Services) Act 1987, Workers
Compensation (Dust Diseases) 1942, Victims Support and
Rehabilitation Act 1996 or Anti-Discrimination Act 1977 or a benefit
payable under the Sporting Injuries Insurance Act 1978
 THE CIVIL LIABILITY
AMENDMENT (PERSONAL
RESPONSIBILITY) ACT
• Part 1A Division incorporates statutory reform
to the law of negligence in Sections 5A to 5T
• Commenced 6/12/02, except Section 5N applies
to breaches of warranties which occur after
10/1/03
• 5A scope of application
– The part applies to any claims in negligence
regardless of whether the claim is brought in tort,
contract, under statute or otherwise
 Duty of Care
• S 5B:(1) A person is not negligent in failing to take precautions against a risk of
harm unless:
– (a) the risk was foreseeable (that is, it is a risk of which the person knew or
ought to have known), and
– (b) the risk was not insignificant, and
– (c) in the circumstances, a reasonable person in the person’s position would
have taken those precautions.
• (2) In determining whether a reasonable person would have taken precautions
against a risk of harm, the court is to consider the following (amongst other
relevant things):
– (a) the probability that the harm would occur if care were not taken,
– (b) the likely seriousness of the harm,
– (c) the burden of taking precautions to avoid the risk of harm,
– (d) the social utility of the activity that creates the risk of harm.
 Duty of Care – commentary
• Section 5B(1) provides a person is not negligent
unless… (b) the risk was not insignificant.
- Wyong Shire Council v Shirt (1980) 146 CLR 40:
risk must be “real” in the sense that a reasonable
person would not “brush it aside as far-fetched or
fanciful.”
- It is unclear whether “not insignificant” in Section
5B(1)(b) is more restrictive than “not far-fetched
or fanciful” in Wyong Shire Council v Shirt
 Duty of Care
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the
burden of taking precautions to avoid similar risks of harm for which
the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing
something in a different way does not of itself give rise to or affect
liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been
taken earlier) have avoided a risk of harm does not of itself give rise
to or affect liability in respect of the risk and does not of itself
constitute an admission of liability in connection with the risk.
 Causation
2 stage process is adopted.

5D General principles
(1) A determination that negligence caused particular harm comprises
the following elements:
(a) that the negligence was a necessary condition of the occurrence of the
harm ( "factual causation" ), and
(b) that it is appropriate for the scope of the negligent person’s liability to
extend to the harm so caused ( "scope of liability" ).

Compare with March v E&MH Stramare Pty Ltd (1991) 171

CLR 506
 Causation
Failure to warn cases

5D General principles

(3) If it is relevant to the determination of factual causation to determine

what the person who suffered harm would have done if the
negligent person had not been negligent:
• the matter is to be determined subjectively in the light of all relevant
circumstances, subject to paragraph (b), and
• any statement made by the person after suffering the harm about what
he or she would have done is inadmissible except to the extent (if any)
that the statement is against his or her interest.
 Assumption of risk
Injured persons presumed to be aware of obvious risks
5G Injured persons presumed to be aware of obvious risks
(1) In determining liability for negligence, a person who suffers harm is
presumed to have been aware of the risk of harm if it was an obvious
risk, unless the person proves on the balance of probabilities that he or
she was not aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the
person is aware of the type or kind of risk, even if the person is not
aware of the precise nature, extent or manner of occurrence of the risk.
 Assumption of risk
5H No proactive duty to warn of obvious risk
(1) A person ( "the defendant" ) does not owe a duty of care to another
person ( "the plaintiff" ) to warn of an obvious risk to the plaintiff.
(2) This section does not apply if:
(a) the plaintiff has requested advice or information about the risk
from the defendant, or
(b) the defendant is required by a written law to warn the plaintiff of
the risk, or
(c) the defendant is a professional and the risk is a risk of the death of
or personal injury to the plaintiff from the provision of a professional
service by the defendant.
(3) Subsection (2) does not give rise to a presumption of a duty to warn of
a risk in the circumstances referred to in that subsection.
 Assumption of risk
5I No liability for materialisation of inherent risk
(1) A person is not liable in negligence for harm
suffered by another person as a result of the
materialisation of an inherent risk.
(2) An "inherent risk" is a risk of something
occurring that cannot be avoided by the exercise
of reasonable care and skill.
(3) This section does not operate to exclude liability
in connection with a duty to warn of a risk.
 Recreational activities
5M No duty of care for recreational activity where
risk warning
(1) A person ( "the defendant" ) does not owe a duty of care to another person
who engages in a recreational activity ( "the plaintiff" ) to take care in
respect of a risk of the activity if the risk was the subject of a risk warning
to the plaintiff.
(2) If the plaintiff is an “incapable person”, the defendant may rely on a risk
warning only if:
(a) the incapable person was under the control of or accompanied by
another person (who is not an incapable person and not the defendant) and
the risk was the subject of a risk warning to that other person, or
(b) the risk was the subject of a risk warning to a parent of the incapable
person (whether or not the incapable person was under the control of or
accompanied by the parent).
 Recreational activities
5M No duty of care for recreational
activity where risk warning
(10) The fact that a risk is the subject of a risk warning does
not of itself mean:
(a) that the risk is not an obvious or inherent risk of an
activity, or
(b) that a person who gives the risk warning owes a duty
of care to a person who engages in an activity to take
precautions to avoid the risk of harm from the activity.
 Recreational activities
5N Waiver of contractual duty of care for
recreational activities
(1) Despite any other written or unwritten law, a term of a contract for
the supply of recreation services may exclude, restrict or modify any
liability to which this Division applies that results from breach of an
express or implied warranty that the services will be rendered with
reasonable care and skill.
(2) Nothing in the written law of New South Wales renders such a term
of a contract void or unenforceable or authorises any court to refuse
to enforce the term, to declare the term void or to vary the term.
 Recreational activities
5L No liability for harm suffered from obvious
risks of dangerous recreational activities
(1) A person ( "the defendant" ) is not liable in
negligence for harm suffered by another person
( "the plaintiff" ) as a result of the materialisation
of an obvious risk of a dangerous recreational
activity engaged in by the plaintiff. (2) This
section applies whether or not the plaintiff was
aware of the risk.
 Recreational Activities
• At present, there are no authorities to assist us in interpreting Sections
5M to L.
• However, it is clear that the judicial approach to liability was affected
in cases decided in and around the public debate and introduction of
the Civil Liability Act.
• For example, compare the approach to liability in Beck v State of
NSW & Anor [2001] NSWSC 278
with
Swain v Waverley Municipal Council [2005] HCA 4 (9 February
2005)

Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council

[2004] NSWCA 247 (27 July 2004)
 Professional negligence
Sections 5O & 5P
• “Peer professional opinion” (or Bolam) test for
determining the appropriate standard of care
• Rogers v Whitaker (1992) 175 CLR 479
– Cases involving a risk of injury or death arising from a
professional service, community standards and other
considerations may be applied by the court in
determining the appropriate standard of care to be
exercised.
 Professional negligence
5O Standard of care for professionals
(1) A person practising a profession ( "a professional" ) does
not incur a liability in negligence arising from the
provision of a professional service if it is established that
the professional acted in a manner that (at the time the
service was provided) was widely accepted in Australia
by peer professional opinion as competent professional
practice.
(2) However, peer professional opinion cannot be relied on
for the purposes of this section if the court considers that
the opinion is irrational
 Non-delegable duties and
vicarious liability
Vicarious liability arises in circumstances “when the
law holds one person responsible for the
misconduct of another, although he is himself free
from blameworthiness or fault” (Fleming J, Law
of Torts (9th edition) at 409)

Non-delegable duty arises in circumstances where a

person cannot be excused from liability even if
reasonable care is exercised in entrusting
responsibility to another person
 Non-delegable duties and
vicarious liability
5Q Liability based on non-delegable duty
(1) The extent of liability in tort of a person ("the defendant")
for breach of a non-delegable duty to ensure that reasonable
care is taken by a person in the carrying out of any work or
task delegated or otherwise entrusted to the person by the
defendant is to be determined as if the liability were the
vicarious liability of the defendant for the negligence of the
person in connection with the performance of the work or
task.
(2) This section applies to an action in tort whether or not it is
an action in negligence, despite anything to the contrary in
section 5A.
 Non-delegable duties and Vicarious
duties

• New South Wales v Lepore ; Samin v Queensland; Rich v

Queensland [2003] HCA 4 (6 February 2003)

- Liability of school authority

- Alleged sexual assault on pupil by teacher
- Whether school authority in breach of non-delegable duty of care
- Concept of non-delegable duty
- Whether school authority vicariously liable
- Test for imposition of vicarious liability.
 Contributory negligence
5S Contributory negligence can defeat
claim
In determining the extent of a reduction in damages by reason
of contributory negligence, a court may determine a
reduction of 100% if the court thinks it just and equitable
to do so, with the result that the claim for damages is
defeated.

Compare: Wynbergen v Hoyts Corporation Pty Ltd (1997)

149 ALR 25
 Contributory negligence
5T Contributory negligence—claims under
the Compensation to Relatives Act 1897
(1) In a claim for damages brought under the Compensation
to Relatives Act 1897 , the court is entitled to have
regard to the contributory negligence of the deceased
person.
(2) Section 13 of the Law Reform (Miscellaneous
Provisions) Act 1965 does not apply so as to prevent the
reduction of damages by the contributory negligence of
a deceased person in respect of a claim for damages
brought under the Compensation to Relatives Act 1897 .
 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.
 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.
 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
 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.