Pure+Mental+Harm+-+Nervous+Shock

Nervous shock is a psychiatric injury that a P suffers as a result of Ds negligence. It must be more than upset or embarrassment – it must be a recognised psychiatric injury.

The type of psychiatric injury must be reasonably foreseeable: **//Tame v NSW//**
 * à Reasonable Foreseeability**

__s.72(1) Wrongs Act__ D does not owe a DOC not to cause pure mental harm to P unless D foresaw, or ought to have foreseen that person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care was not taken.
 * D needs to have foreseen
 * P must be of normal fortitude
 * P must suffer recognisable psychiatric illness
 * D must have not taken reasonable care

__s.72(2) – ‘In the Circumstances’ include:__
 * Whether mental harm was suffered as a result of sudden shock;
 * Whether P witnessed, at the scene, a person being killed, injured, or put in danger;
 * The nature of the relationship between the P and the V; and
 * Whether there was a pre-existing relationship between the P and D (e.g. employment)


 * à ‘Normal Fortitude’**
 * If P suffers ‘shock’ he/she has no action for negligence unless P was emotion and mentally a ‘normal’ person: **//Mount Isa Mines//**
 * If P was susceptible to shock, a DOC will not exist unless the D knew or ought to have known that P was of less than ‘normal fortitude’: **//Mount Isa Mines;// s.72(3) //Wrongs Act//**

D must have known (or ought to know) that a person of normal fortitude would have suffered mental harm in the circumstances by showing:

__Sudden Shock__
 * Mental harm is more likely to a person of normal fortitude if there is sudden shock – if P witnesses, or is involved in something shocking (i.e. life threatening or dangerous), a DOC is more likely to be found that if you hear about something and run out to see it.

__Direct Perception of Harm__
 * Mental harm is more likely if it occurred as a result of P directly seeing the injury to the V.

__Relationship between P and V__
 * If there was a relationship between the P and V, it is reasonably foreseeable that the reasonable person would suffer more than if they did not know the V.

__Relationship between P and D__
 * If the P was in a close relationship with the D, it is more likely to be reasonably foreseeable that mental harm would occur.

__Assumption of Responsibility__
 * à Salient Features**
 * If the P sought assurance form the D that he would take responsibility for the V, and the D did take responsibility, the D impliedly assumed responsibility for minimising the risk of psychiatric injury to the P: **//Annetts//**

__Indeterminacy of liability__
 * D only owes a duty to those that he assumes responsibility to.

__Vulnerability__
 * Where there any steps the P could have reasonably taken to protect from psychiatric injury? **//Gifford//**

__Control__
 * If the D controls the risk to which the P is exposed, the court is more likely to find a DOC (e.g. employee-employer): **//Gifford//**
 * If the D controls the conditions in which the V is hurt, that will point towards there being a DOC, because the D will be able to control the risks to which the V is exposed: **//Annetts//**; **//Gifford//**.

__Interference with legitimate business activity’__
 * If a DOC is already owed to a family member, there will be no change if the duty is extended to others of the same family: **//Gifford//**
 * If the D caused the harm as a part of business activity, it points towards there being no duty. But if the D already owed a duty to someone, particularly the V, it suggests there is a duty.

__Conflict of duties__
 * Does recognising a DOC conflict with any other duties that D may have to others? (e.g. policeman to other road users, and to P). **//Tame//**

__Conflict of law__
 * Is there any area of law that could better deal with this case? **//Tame//**

__s.73 – D will only be liable if:__
 * à Where Ps a 3rd Party**
 * The P witnessed at the scene the V being harmed or put in danger; or
 * The P was in a close relationship with the V.

__s.73(3) – Restriction__
 * No damages should be awarded to a P of mental harm if the V would not be able to recover damages. It does not matter if the V does not actually claim damages, just whether they could have been successfully claimed.
 * Note –** Need to show that V could have successfully claimed damages.


 * à Bearers of Bad News**
 * No DOC is owed to break the bad news in a tactful, sensitive or thoughtful way because otherwise people would be discouraged from telling people bad news: **//Gifford// per Gummow & Kirby**.
 * It was not considered what would happen if the bearer of bad news provided incorrect information in providing the news.


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