Negligence Law
Foreseeability
It is necessary for a negligence case to succeed that the harm should reasonably be foreseeable as a result of the act or omission at the centre of the claim. A duty of care exists in relation to preventing a given risk, as long as the risk is reasonably foreseeable. The standard applied by courts in determining foreseeability is whether a reasonable person in the position of the defendant should have foreseen it.
Unfortunately the reasonable person has proven to be a somewhat more lucid and thoughtful individual than one might at first think. A person of truly normal competence and tendencies in foreseeing risks would rarely come up to the standard expected by courts. (It is the author’s opinion that such foresight comes only as an advanced skill to be learned over years). Although courts are acutely aware of the deceptive nature of hindsight and regularly try to avoid thinking of the actual events of a case as being patently obvious, the reasonable person is taken by the common law now as being an individual possessed of a formidable talent for anticipating contingencies. What is even more interesting also, is the extraordinary impracticality imputed to the reasonable person when the question of contributory negligence arises in defence.
A leading case on foreseeability was Wyong Shire Council v Shirt. A waterskiing club built a jetty in a lake and the Wyong Council dredged a channel from the jetty to the deeper water in the middle of the lake. Signs were erected along the channel warning of deep water. The plaintiff mistook the signs as meaning that the whole lake was deep and skied in the shallows. He came off the skis in water one metre deep and hit his head on the bottom, becoming quadriplegic. The plaintiff sued various parties involved in the matter.
The court reasoned that a risk which is not far-fetched and fanciful is real, and therefore foreseeable. One must consider the magnitude of the risk and the probability of the risk together to judge its foreseeability. In this case, the court ruled, due to the ambiguity of the signage, a reasonable man might well have read them wrongly and mistaken the position of the deep water. He might also consider the risk that would be borne by a skier in water only one metre deep.
Kozarov v Victoria is a recent high court authority on foreseeability confirms that the foreseeability of harm applies when evident signs of mental harm appear. Kozarov relates to a prosecutor working for the Office of Public Prosecutions who was exposed to cases of sexual crimes, dealt with victims and who was overworked and who was refused rotation of duties and not offered proper support. She suffered post-traumatic stress disorder due to that.
To provide a backdrop, in Koehler v Cerebos (Australia) Ltd, it was said:
…First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job.
However, in the case of Kozarov, evident signs of mental ill-health did arise. When signs of damage appear, a duty of care arises. However, the court also ruled that where the work is inherently and obviously dangerous to psychiatric health, the duty to take reasonable precautions pro-actively arises without the need for individual evident signs of distress.
Having regard…to the magnitude of the possible harm and the degree of probability of its occurrence and, on the other hand, to the burden of alleviating action, what steps would a reasonable person in the position of the employer have taken in response?
Special Vulnerability
Some persons have special vulnerabilities such as sight impairment, a lame foot, old age and so forth, and as a result may be far more likely than most to come to harm. While commonsense may require such people to take extra care for themselves, the law does not require this. As long as a certain form of vulnerability is reasonably common, anyone whose negligent act or omission results in harm to them is liable in the same manner. An example is Haley v London Electricity Board where a blind man walking alone walked through inadequate barricades on a footpath and fell into a ditch. This resulted in brain damage that caused the loss of his hearing. Due to the commonness of blindness, it was reasonable that the responsible workers should have foreseen the potential for such a person to walk up and miss the barricades.
Purely Mental Harm
When dealing with a claim for pure (or primary) mental harm, the foreseeability of the harm claimed for depends on what would be suffered by a person of normal fortitude. This rule applies where the mental harm is resultant directly from the defendant’s negligence, and not from the plaintiff’s suffering of a physical injury caused by the defendant. Secondary mental harm, unlike primary mental harm, is still claimable per se.
In the dual appeal session of Tame v New South Wales; Annetts v Australian Stations Pty Limited, Ms Tame experienced mental harm resulting from an incorrectly recorded BAC after her involvement in a collision. Being worried for her reputation as a teetotaller, she became clinically depressed. The High Court ruled that the mental harm experienced was not reasonably foreseeable and Ms Tame was not of normal fortitude. An interesting aside in that judgment was put by Gaudron J, that if the defendant has particular knowledge of the plaintiff’s special vulnerability or of factors about the plaintiff which make them vulnerable, then liability still stands. The court was quite clear also in this case that a person merely bearing bad news has no duty of care as to the mental wellbeing of the recipient.
The above-cited case of Kozarov is a good example of a person of normal fortitude succeeding in a claim for purely mental harm arising from their employment.
Wyong Shire Council v Shirt (1980) 146 CLR 40.
Kozarov v Victoria [2022] HCA 12; (2022) 273 CLR 115.
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.
Kozarov, op cit, [105].
Haley v London Electricity Board [1965] AC 778.
Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35.
Kozarov v Victoria [2022] HCA 12; (2022) 273 CLR 115.