LAW 1507 Lecture Notes - Lecture 4: Safeway Inc., Gett, State Rail Authority
23 May 2018
School
Department
Course
Professor
Duty of care (step 1)
Types of harm
• physical: a duty of care will arise where a person knows or ought reasonably foresee
that physical harm is a likely consequence of his or her conduct.
o (Tabet v Gett 2010 HCA 12) – This precedent will usually be enough to
establish a duty when the physical harm was reasonably foreseeable.
When the facts fall into an established category of duty:
It is ell estalished that a dut of ae aises etee…
• Manufacturers and builders to customers (RARE + OLD)
➢ Donoghue v Stevenson
• Doctor to patient
➢ Rogers v Whittaker
• Owner to occupier
➢ Australian Safeway Stores Pty Ltd v Zalunza
• Driver to passenger (regular)
➢ Imbree v McNeilly
• Gaoler to prisoner
➢ NSW v Bujdoso (rock spider case)
• Parents to children
• School to pupil
• Master to servant
Mental Harm (special duty situation)
Must be a recognised psychiatric illness. Pure (without physical injury) and consequential
(following an injury).
Given the psychiatric nature of harm, this becomes a special duty inquiry. s53(1) of the CLA is
satisfied as… s of the CLA… s CLA has been met as the defendant could have
reasonably foreseen that a person of normal fortitude, might in the circumstances, suffer a
recognised psychiatric injury in these circumstances.
Pure mental harm
➢ A situatio of dage eatig etee fea fo the plaitiffs self o ithi the
zone of physical risk;
➢ A situation where the plaintiff was safe from physical harm but feared for
their relative(s);
➢ A situation where a relative has been badly injured and the plaintiff saw or
heard about it or was in the immediate vicinity in the aftermath of the
accident;
➢ Witnessed a horrific scene take place where the victim was killed, injured or/
and was put in peril.
find more resources at oneclass.com
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➢ Bearers of bad tiding have no liability; mere sorrow does not sound in
damages (Jaensch v Coffey)
Control mechanisms
Aied to stop the floodgates opeig fo lais. No loge a euieet. (Tame v
NSW; Annetts v Australian Stations)
Legislation for Mental Harm This is the process to use when establishing a DOC in a mental
harm enquiry. Process: s 53 THEN s 33
Civil Liability Act 1936 (SA)
33—Mental harm—duty of care
(1) A person (the defendant) does not owe a duty to another person (the plaintiff) to
take care not to cause the plaintiff mental harm unless a reasonable person in the
defendant's position would have foreseen that a person of normal fortitude in the
plaintiff's position might, in the circumstances of the case, suffer a psychiatric illness.
(2) For the purposes of this section—
(a) in a case of pure mental harm, the circumstances of the case to which the
court is to have regard include the following:
(i) whether or not the mental harm was suffered as the result of a
sudden shock;
(ii) whether the plaintiff witnessed, at the scene, a person being killed,
injured or put in peril;
(iii) the nature of the relationship between the plaintiff and any person
killed, injured or put in peril;
(iv) whether or not there was a pre-existing relationship between the
plaintiff and the defendant;
(b) in a case of consequential mental harm, the circumstances of the case
include the nature of the bodily injury out of which the mental harm arose.
(3) This section does not affect the duty of care of a person (the defendant) to
another (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff
is a person of less than normal fortitude.
53—Damages for mental harm
(1) Damages may only be awarded for mental harm if the injured person—
(a) was physically injured in the accident or was present at the scene of the
accident when the accident occurred; or
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
When the facts fall into an established category of duty: It is (cid:449)ell esta(cid:271)lished that a dut(cid:455) of (cid:272)a(cid:396)e a(cid:396)ises (cid:271)et(cid:449)ee(cid:374) : manufacturers and builders to customers (rare + old) Donoghue v stevenson: doctor to patient. Rogers v whittaker: owner to occupier. Australian safeway stores pty ltd v zalunza: driver to passenger (regular) Imbree v mcneilly: gaoler to prisoner. Nsw v bujdoso (rock spider case: parents to children, school to pupil, master to servant. Pure (without physical injury) and consequential (following an injury). A situatio(cid:374) of da(cid:374)ge(cid:396) (cid:272)(cid:396)eati(cid:374)g e(cid:454)t(cid:396)e(cid:373)e fea(cid:396) fo(cid:396) the plai(cid:374)tiff(cid:859)s self o(cid:396) (cid:449)ithi(cid:374) the zone of physical risk; A situation where the plaintiff was safe from physical harm but feared for their relative(s); A situation where a relative has been badly injured and the plaintiff saw or heard about it or was in the immediate vicinity in the aftermath of the accident;
