AISHA’S PHYSICAL INJURY
The paradigm case in which a duty is held to arise involves a positive negligent act causing physical injury to person or property. The law often does not find a duty in the case of omissions. However, a special duty arises where occupiers of the land fail, warn or ameliorate risks to those on their land.
REASONABLE FORESEEABILITY:
To determine if a duty of care arises, it must have been reasonably foreseeable that if the occupier didn’t take steps to ameliorate the hazard, there was a risk to a class of persons on the land. It must be reasonably foreseeable that careless conduct of any kind by the defendant could cause harm to the class of persons to which the plaintiff belongs. It was reasonably foreseeable that …show more content…
It is reasonably foreseeable that a person of normal fortitude, witnessing a child in her care severely injured, could develop a recognised psychiatric illness. In regards to whether her preexisting anxiety could bar the claim, the court must determine how to interpret the CLA. However in light of Tame v New South Wales, as it is likely that a person of normal fortitude would have suffered the injury, the defendant must take the plaintiff as she is. This reasoning has been applied in Anwar v Mondello Farms and therefore would be persuasive to the court.
WITNESSED THE EVENT:
The plaintiff must either have “witnessed, at the scene, the victim being killed, injured or put in peril” or be a “close family member”. The plaintiff fulfills this criterion by witnessing the victim being injured and ‘in peril’. As established in Wicks v State Rail Authority, even though the plaintiff did not see the accident occur, this does not bar her claim because the events do not end with the tractor coming to a stop. While the victim was trapped under the tractor she was still being injured and was still in peril from her injuries.
REASONABLE …show more content…
RECOGNISED PSYCHIATRIC ILLNESS:
The disorder is not yet listed in the Diagnostic and Statistical Manual of Mental Disorders. However, as experts agree on its name and strategies to treat it, the courts may find subject to expert evidence that aboulomania is a recognised psychiatric illness.
NORMAL MENTAL FORTITUDE:
It only needs to be reasonably foreseeable that the plaintiff will suffer a psychiatric injury, not the specific one. While the disorder itself seems disproportionate to the injury, it is likely that a person of normal fortitude would find pictures of extreme injury to their child and the uncertainty of the necessity for amputation to be stressors for a recognised psychiatric injury.
CLOSE FAMILY MEMBER:
Luca is a close family member, as the father of the victim.
REASONABLE FORESEEABILITY:
It was reasonably foreseeable that the plaintiff could suffer a recognised psychiatric injury. In the circumstances of the case, the snapchat picture could be considered a sudden shock inciting greater trauma. It is established that duty still arises when the shock is prolonged. Additionally as it was his child, the close relationship would have increased the trauma. It was reasonably foreseeable that as the plaintiff was a child, news of the child’s injury to a parent could cause a recognised psychiatric
The paradigm case in which a duty is held to arise involves a positive negligent act causing physical injury to person or property. The law often does not find a duty in the case of omissions. However, a special duty arises where occupiers of the land fail, warn or ameliorate risks to those on their land.
REASONABLE FORESEEABILITY:
To determine if a duty of care arises, it must have been reasonably foreseeable that if the occupier didn’t take steps to ameliorate the hazard, there was a risk to a class of persons on the land. It must be reasonably foreseeable that careless conduct of any kind by the defendant could cause harm to the class of persons to which the plaintiff belongs. It was reasonably foreseeable that …show more content…
It is reasonably foreseeable that a person of normal fortitude, witnessing a child in her care severely injured, could develop a recognised psychiatric illness. In regards to whether her preexisting anxiety could bar the claim, the court must determine how to interpret the CLA. However in light of Tame v New South Wales, as it is likely that a person of normal fortitude would have suffered the injury, the defendant must take the plaintiff as she is. This reasoning has been applied in Anwar v Mondello Farms and therefore would be persuasive to the court.
WITNESSED THE EVENT:
The plaintiff must either have “witnessed, at the scene, the victim being killed, injured or put in peril” or be a “close family member”. The plaintiff fulfills this criterion by witnessing the victim being injured and ‘in peril’. As established in Wicks v State Rail Authority, even though the plaintiff did not see the accident occur, this does not bar her claim because the events do not end with the tractor coming to a stop. While the victim was trapped under the tractor she was still being injured and was still in peril from her injuries.
REASONABLE …show more content…
RECOGNISED PSYCHIATRIC ILLNESS:
The disorder is not yet listed in the Diagnostic and Statistical Manual of Mental Disorders. However, as experts agree on its name and strategies to treat it, the courts may find subject to expert evidence that aboulomania is a recognised psychiatric illness.
NORMAL MENTAL FORTITUDE:
It only needs to be reasonably foreseeable that the plaintiff will suffer a psychiatric injury, not the specific one. While the disorder itself seems disproportionate to the injury, it is likely that a person of normal fortitude would find pictures of extreme injury to their child and the uncertainty of the necessity for amputation to be stressors for a recognised psychiatric injury.
CLOSE FAMILY MEMBER:
Luca is a close family member, as the father of the victim.
REASONABLE FORESEEABILITY:
It was reasonably foreseeable that the plaintiff could suffer a recognised psychiatric injury. In the circumstances of the case, the snapchat picture could be considered a sudden shock inciting greater trauma. It is established that duty still arises when the shock is prolonged. Additionally as it was his child, the close relationship would have increased the trauma. It was reasonably foreseeable that as the plaintiff was a child, news of the child’s injury to a parent could cause a recognised psychiatric