Tors Essay
Michelle v Canconcert Pty Ltd
Duty:
Since Michelle suffers from depression, a recognized psychiatric illness, and does not suffer any physical injury, this is a case of duty of care (DOC) under Mental Harm (MH), as provided in s34 CLWA. Circumstantial factors will be used to answer the reasonable foreseeability question. From the facts, ‘sudden shock’ can be established as Michelle was in the midst of buying water when she was suddenly shocked by the bang and screams. Determination of DOC then falls upon s34(2)(b).
The contentious issue is whether hearing the accident and its aftermath constituted ‘witnessing’. A similar (but not identical) statutory interpretation issue arose in Wicks/Sheehan, and the courts took a broad interpretation of the statute. Following this trend in interpretation, the concept of ‘witnessing’ should therefore not be limited to sense of ‘sight’ alone, as it is reasonable in such circumstances for one to be affected psychiatrically by sounds. By referring to provisions in s36(1)(c) CLWA, it can be further inferred that in general, statute intends for witnessing to encompass both concepts of ‘sight’ or ‘sound’ for MH.
It was reasonably foreseeable that Michelle could suffer MH under s34(2)(b) as she witnessed Ben being injured and put in danger. The fact that Ben’s leg was broken due to the collapsed seating area shows that he was injured and being put in danger, and is still continually injured and being put in danger till Ben receives medical assistance. Therefore in considering those factors, it was reasonable for Michelle to suffer MH. DOC is established.
Breach:
The facts indicate that Canconcert had been careless and caused the seating area to collapse. Since Canconcert’s conduct was negligent, there is breach of duty.
Causation:
In establishing necessary condition, the ‘but for’ test is satisfied by showing that the incident had a profound effect on Michelle, resulting in depression. This satisfies factual causation.
Duty:
Since Michelle suffers from depression, a recognized psychiatric illness, and does not suffer any physical injury, this is a case of duty of care (DOC) under Mental Harm (MH), as provided in s34 CLWA. Circumstantial factors will be used to answer the reasonable foreseeability question. From the facts, ‘sudden shock’ can be established as Michelle was in the midst of buying water when she was suddenly shocked by the bang and screams. Determination of DOC then falls upon s34(2)(b).
The contentious issue is whether hearing the accident and its aftermath constituted ‘witnessing’. A similar (but not identical) statutory interpretation issue arose in Wicks/Sheehan, and the courts took a broad interpretation of the statute. Following this trend in interpretation, the concept of ‘witnessing’ should therefore not be limited to sense of ‘sight’ alone, as it is reasonable in such circumstances for one to be affected psychiatrically by sounds. By referring to provisions in s36(1)(c) CLWA, it can be further inferred that in general, statute intends for witnessing to encompass both concepts of ‘sight’ or ‘sound’ for MH.
It was reasonably foreseeable that Michelle could suffer MH under s34(2)(b) as she witnessed Ben being injured and put in danger. The fact that Ben’s leg was broken due to the collapsed seating area shows that he was injured and being put in danger, and is still continually injured and being put in danger till Ben receives medical assistance. Therefore in considering those factors, it was reasonable for Michelle to suffer MH. DOC is established.
Breach:
The facts indicate that Canconcert had been careless and caused the seating area to collapse. Since Canconcert’s conduct was negligent, there is breach of duty.
Causation:
In establishing necessary condition, the ‘but for’ test is satisfied by showing that the incident had a profound effect on Michelle, resulting in depression. This satisfies factual causation.