CLAW1001 Lecture Notes - Lecture 8: Nervous Shock In English Law, Gambling, Objective Test
22 May 2018
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Lecture 8
Duty of Care
The question of liability for negligence cannot arise at all until it is established that there is a
duty of care (owed to the plaintiff by the defendant). A person is not liable for damage to
another unless a duty of care is owed. The duty of care is the “filter” which determines what
duties are owed, and to whom, and when in contemporary society.
• Reasonable Foreseeability Test
It is important that “reasonable foreseeability” should be understood and applied with due
regard to the consideration that, in the context of an issue as to duty of care, it is bound up
with the question whether it is reasonable to required a person to have in contemplation the
risk of injury that has eventuated.
Note: today, reasonable foreseeability is a necessary but not a sufficient condition.
• Proximity Test
In 1980s proximity proposed by HCA as the test for a duty of care: proximity is directed to
the relationship between the parties.
Jaensch v Coffey [1984] HCA 52 — Does duty of care in negligence extend to the family
member of the injured person?
Facts: The respondent (Coffey) developed a psychiatric illness because of what she saw and
heard at the hospital to which her husband was admitted with serious injuries cause by the
negligent driving of the Appellant.
The Law: The extent of admissible claims for nervous shock depends on three elements: the
class of person whose claims should be recognised, the proximity of such persons to the
accident and the means by which the shock is caused.
For claim in nervous shock, the shock must come through sight or hearing of the event or its
immediate aftermath.
Held:
It was foreseeable that a person in the wife’s position would suffer nervous shock, and there
is no reason of policy why her claim should not succeed.
However, proximity test rejected as being of “limited value” by HCA in Sullivan v Moody
[2001] HCA 57
• Salient Features Test
Current test places emphasise on “salient features”:
- reasonable reliance by plaintiff on the conduct ad protection of the defendant.
- vulnerability of the plaintiff
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- whether the defendant has voluntarily assumed responsibility for protecting the
plaintiff against harm.
- capacity of the defendant to control the situation.
Reynolds v Katoomba RSL All Services Club Ltd [2004] NSWCA 234
- problem gambler sued club
- Court accepted that “vulnerability” a significant factor in establishing a duty of care
- But — in this case there is no “practical inability” of the injured party to take steps
to protect himself.
- “Appellant must accept responsibility for his own actions”
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 — Is there a duty
to protect employee from criminal acts of third parties？Should there be such duty
imposed by law?
- Anzil was the manager for Focus Video Pty Ltd, which leased premises in Modbury
Triangle Shopping Centre
- On Sunday 18 July, 1993, Anzil was attacked by three unknown men in the Centre
car park at night. The lights in the car park had been turned off.
Issue： Whether the owner of the shopping centre which owned/ controlled the carpark
should be liable for failing to take reasonable steps to protect the employee of a tenant against
the deliberate wrongdoing of a third party. Whether the shopping centre owed a duty of
relevant to the harm which befell Anzil.
Held:
- Occupier owes a duty to persons lawfully on the land whether tenants or employees or
customers of tenants.
- Shopping Centre owed a duty in relation to the physical state and condition of the car park.
- BUT, no duty owed to protect the workers in the shopping centre from unauthorised,
unknown and uncontrolled criminal activities of others:
“ There are situations in which there is a duty of care to warn or take positive steps to protect
another against harm from third parties. Usually a duty of care of that kind arises because of
special vulnerability on the one hand and, on the other special knowledge, the assumption of
a responsibility or combination of both, Those situations aside, however the law is slow to
impose a duty of care on a person with respect to the actions of third parties over whom he or
she has no control.
• Established Categories of Duty of Care
Most actions in tort arise out of relationships in which the existence of a duty of care is all
established and the nature of the duty well understood.
1. “The Recognised Cases” — Duty of Care Owed by:
- owner of premises to persons invited/ lawfully on the premises
- manufacturer to consumer
- employer to employee
- school to pupil
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Document Summary
The question of liability for negligence cannot arise at all until it is established that there is a duty of care (owed to the plaintiff by the defendant). A person is not liable for damage to another unless a duty of care is owed. The duty of care is the filter which determines what duties are owed, and to whom, and when in contemporary society: reasonable foreseeability test. Note: today, reasonable foreseeability is a necessary but not a sufficient condition: proximity test. In 1980s proximity proposed by hca as the test for a duty of care: proximity is directed to the relationship between the parties. Facts: the respondent (coffey) developed a psychiatric illness because of what she saw and heard at the hospital to which her husband was admitted with serious injuries cause by the negligent driving of the appellant. For claim in nervous shock, the shock must come through sight or hearing of the event or its immediate aftermath.
