Mental Harm definitions (s 67) Consequential MH MH caused by injury of any kind. – Injury Personal/bodily injury, includes psych injury. – Pure MH Non-consequential MH. – Establishing Mental Harm claims Did P suffer mental harm? Psychological injury occurred (s 67), not mental distress (s 75). Consequential mental harm MH caused by any other injury of any other kind – (s 67). Pure mental harm Any MH other than consequential MH (s 67). – Was the MH pure or consequential? Pure go to Step 3. – Consequential go to Step 4. – Pure: Is recovery possible under s 73? Did P witness the at the scene (2)(a); or Have a relationship with the victim ((2)(b); Annetts v Australian Stations; Gifford v Strang Patrick)? If recovery possible, continue. Did D owe a duty of care in relation to the pure MH? No duty unless D foresaw/could foresee that person of normal fortitude would suffer recognised psych illness if reasonable care not taken (s 72(1)). If D P has less than normal fortitude, then duty of care applies as per normal neg claim (s 72(3)). Are following circumstances present (s 72(2))? Mental harm caused by sudden shock; P witnessed, at scene, person being killed/injured/put in danger; Nature of relationship b/w P and person killed/injured/etc. Pre-existing relationship b/w P and D. Are salient features from case law present?
Mental Harm definitions (s 67) Consequential MH – MH caused by injury of any kind. Injury – Personal/bodily injury, includes psych injury. Pure MH – Non-consequential MH. Establishing Mental Harm claims Did P suffer mental harm? Psychological injury occurred (s 67), not mental distress (s 75). Consequential mental harm – MH caused by any other injury of any other kind (s 67). Pure mental harm – Any MH other than consequential MH (s 67). Was the MH pure or consequential? Pure – go to Step 3. Consequential – go to Step 4. Pure: Is recovery possible under s 73? Did P witness the at the scene (2)(a); or Have a relationship with the victim ((2)(b); Annetts v Australian Stations; Gifford v Strang Patrick)? If recovery possible, continue. Did D owe a duty of care in relation to the pure MH? No duty unless D foresaw/could foresee that person of normal fortitude would suffer recognised psych illness if reasonable care not taken (s 72(1)). If D P has less than normal fortitude, then duty of care applies as per normal neg claim (s 72(3)). Are following circumstances present (s 72(2))? Mental harm caused by sudden shock; P witnessed, at scene, person being killed/injured/put in danger; Nature of relationship b/w P and person killed/injured/etc. Pre-existing relationship b/w P and D. Are salient features from case law present?
Tort-Summary-Notes.docx