Tors Essay

Topics: Tort, Duty of care, Negligence Pages: 11 (3258 words) Published: August 25, 2013
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.

No scope of liability (SOL) issues as Michelle’s MH is direct result of the collapse seating area. Michelle’s depression is the kind of harm that is reasonably foreseeable due to Canconcert’s admitted negligence for the incident.

Defenses:
No defense available, thus Canconcert fully liable for negligence.

Fiona v Canconcert Pty Ltd
Extension of Liability:
Since Fiona suffers from a depressive episode, a recognized psychiatric illness, and does not suffer any physical injury, this is a case of DOC under MH, as provided in s34 CLWA. From the facts, ‘sudden shock’ can be established as Fiona received sudden tragic news about the concert. Given her close relationship to Ben, it is reasonably foreseeable that she will suffer from nervous shock. Fiona satisfies the provision in s34 CLWA as she is Ben’s mother, hence satisfying both s34(2)(c) and s34(2)(d) CLWA.

It was established that Canconcert admit liability in the tort of negligence concerning Ben’s injuries. In pursuant to s36(1)(a) of CLWA, Canconcert’s liability should also extend to Fiona, as she is a parent of Ben and a family member of Ben.

Fiona would have legal remedy in the tort of MH.

Ben v Lisa
Duty:
As Lisa’s conduct was a clear positive act causing further injury, this is a non-problematic case. Existence of DOC depends on reasonable foreseeability of class of plaintiffs. By subsuming Ben under a broad class of plaintiffs – ‘persons receiving aid’ – the requirement of foreseeability is easily fulfilled. Thus, it was reasonably foreseeable that Ben would suffer subsequent injury if Lisa failed to take reasonable care while rendering Ben aid. Hence, DOC is established, and Lisa is liable in relation to positive acts.

Breach:
Lisa’s act of treating Ben with poison was negligent. Since the possibility of carelessly further injuring Ben by treating the wound with poison is not far-fetched or fanciful, foreseeability exists. The significance of further injuring someone is also a...
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