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Rule

Discuss about the case study Law of Torts for Rights and Liabilities in Tort.

The first issue in and in a related with the damages that can be awarded to David and Richard's mother Fiona who have suffered post-traumatic stress disorder and Fiona has not been able to sleep for months. Therefore it needs to be seen if the damages for psychiatric injury can be awarded in this case or not. Similarly verified that the president is this is related with the liability of Armidale District Council for the injuries suffered by Barry as a branch of a tree adjoining the road fell on his car. In this case, the responsibility for the upkeep of the road and the adjoining land was of the Council. Another reason that also needs to be discussed in this assignment is if the wife of Richard, Constance and his two children, Albert and Edwards were entitled to compensation, particularly when they had started to live with a wealthy stockbroker, Hector who was taking very good care of them.

Rule: As is the case with negligence under the common law, for the purpose of establishing negligence under the Civil Liability Act, a plaintiff is required to establish that the defendant owed a duty of care to the plaintiff, such duty of care has been breached by the defendant and it has resulted in the damage alleged by the plaintiff. Generally it is considered that the modern negligence law has been recognized in Donoghue v Stevenson. Therefore, for bringing a positive claim under negligence, it is essential that the claimant establishes that the defendant had a duty of care towards the plaintiff; such duty has been breached by the defendant; the breach of duty has resulted in damage and such damage was not too remote. The legal test that can be used for imposing the duty differs on the basis of the type of loss suffered by the claimant. Therefore in case of personal injury and property, generally the Caparo test is applied by the courts. On the other hand, in case of psychiatric injury, the Alcock test is applied. In order to establish a breach of duty, an objective test is used for the purpose of deciding if the defendant has breached the duty of care. On the other hand, the 'but for' test is used for the purpose of deciding causation. This test was provided by the court in Barnett v Chelsea & Kensington Hospital. But, in certain conditions, some other concerns may also apply. The test provided in The Wagon Mound no 1 is used by the courts for the purpose of deciding the remoteness of damage. According to this test, defendant can be held liable only if the loss was of a foreseeable nature. Therefore if the loss suffered by the claimant was of the foreseeable nature, the defendant will be liable to the full extent of the loss even if the loss suffered by the claimant was much greater than expected. The tort law in Australia is heavily influenced by the common law but this position has been changed after the introduction of the Civil Liability Act.

Advice for David and Fiona for the psychiatric injury suffered by them

Advice for David and Fiona for the psychiatric injury suffered by them:  A restricting approach has been assumed by the court in awarding damages for the psychiatric injury that has been inflicted as a result of negligence. Apart from the Caparo test that is used for imposing a duty of care, several restrictions have been imposed by the courts that have to be satisfied by the claimant for the purpose of establishing reliability of the defendant for the psychiatric injury that has been inflicted as a result of negligence. First of all, an actual psychiatric injury should have been caused. The result is that the emotions of sorrow and grief are not sufficient to be considered as psychiatric injury. In the same way, the feelings of fear, panic or terror are also not considered as psychiatric injury. In the beginning, the claims for psychiatric injury were limited to those who fear for their personal safety. However, as a result of the development of the law in this field, a wide range of circumstances have been allowed by the courts but still they are quite restricted. In this regard, the law makes a difference amid the primary and secondary victims. In this regard, Lord Oliver stated in Alcock that primary victims are the persons who have been involved mediately or immediately as a member in the incident. Later on, this was restricted to the persons who were in the physical danger zone as mentioned in White & Ors v Chief Constable of South Yorkshire. In this context, the court stated in McFarlane v E. E. Caledonia that an objective attitude has to be adopted by deciding if the plaintiff is in physical danger area or not. The law requires that the primary victims only have to establish that the physical harm suffered by them was foreseeable. Therefore it is not required that the psychiatric harm suffered by them was also foreseeable if the personal harm was probable. In this regard it also needs to be noted that a primary victims does not have a duty of care towards the secondary victim, regarding self-inflicted harm. On the other hand, the secondary victims are the persons who are not within the physical danger zone but who have witnessed horrific events. In this case, the law requires that the secondary victims should establish that the four criteria mentioned in Alcock are present for the purpose of establishing liability. These are the presence of a close tie of love and affection; seeing the event with their own unaided senses; closeness to the occurrence itself or the immediate aftermath of the event; and the psychiatric harm suffered by the claimant should be due to a shocking event.

Liability of Armidale District Council for injuries suffered by Barry due to falling tree branches

The law provides that a close tie of love and affection is presumable between parent and child and between spouses but in case of other relationships, it has to be proved by the claimant. Particularly, in case of siblings, generally there is no presumption in favour of a close tie of love and affection. The second requirement is that the claimant should have witnessed the event the own unaided senses. Therefore, for example witnessing the event on the television is not considered a sufficient. The other requirement is the proximity to the event itself or its immediate aftermath. For example in Alcock, it was held by the court that the relatives who had visited the makeshift mortuary for identifying their loved ones were not within the immediate aftermath of the event. Therefore, what amounts to immediate aftermath of an event depends on the facts of each case. It is also require that the psychiatric injury should have been caused by a shocking event. In this context, Lord Ackner stated in Alcock that, “shock, in context of this cause of action, involves the sudden appreciation of qualifying event, by sight or sound, which has violently educated the mind. However it is yet to include the psychiatric injury that has been caused as a result of accumulation of more gradual assaults on the nervous system over a period of time”. As a result, the persons who have suffered psychiatric injury due to the long-term process of providing care to a loved one underwent harms due to the negligence of the defendants, are excluded.


In this part of the assignment, the issue is related with the liability of Armidale District Council (ADC) as David's brother, Barry has suffered injuries when he was driving along a country road and was hit when an overhanging branch of the tree fell off. The responsibility for the road and the tree was vested with the ADC.  It can be said in this regard that in certain respects, the statutory bodies are not different from other defendants so far as they liability under negligence is concerned. Therefore, the law provides that if the loss of the lament as being caused by the negligence of the public authority, for example by negligently causing the plaintiff to suffer physical injury or making a misleading statement to the plaintiff negligently, the statutory authority can be held liable in the same way as in case of any other defendant and the ordinary principles of the law of negligence can be applied. The emerging contemporary position regarding the liability of the statutory authorities have negligence is that if the powers vested in the authority by the statute gives the authority a significant amount of control on the safety of the persons and the persons are in a vulnerable position, then a duty of care will be present on part of the authority towards these persons. Although, it will be a question of fact if the requisite degree of control and vulnerability is present in a particular case, it was decided by the court in Brodie v Singleton Shire Council that the highway authority was in a position where they had physical control on the object which was the source of harm suffered by the plaintiff. Therefore in the absence of immunity, the authority will have a duty of care towards the road users.

Similarly, the liability of Warwick has to be decided regarding the death of Richard that was caused as a result of the accident that took place due to the negligence of Warwick. It has been stated by the High Court that the monetary cap that has been imposed by section 12(2) of the Civil Liability Act is not applicable to the claims that have been initiated under the Compensation to Relatives Act, 1897. As there is no reference to the deceased in section 12(2) the section should not be considered as limiting damages for the economic loss to the gross weekly earnings of the claimant.

In this regard, it needs to be noted that Richard had a wife, Constance and two children aged 3 and 16. At the birth of their first child, Constance had given up her job and was taking care of the family. However after the death of Richard, Constance met her old boyfriend Hector who was a wealthy stockbroker and was taking very good care of the children. Under these circumstances, it needs to be decided if Warwick will be liable to pay compensation to Constance and Albert and Edward. In this regard, the law provides that the basis of compensation is not solatium or in other words, the damages awarded for damaged feelings or due to sentiments but these images are founded on the reimbursement for a monetary loss This is the approach approved in Australia regarding compensation and the law in Australia has been interpreted as applying only to the pecuniary loss that has been incurred by those members of the family of the deceased who were eligible to bring the claim. In most of the cases, the highest monetary loss is the forfeiture of income.

Therefore it needs to be noted that the main source of pecuniary damage is the forfeiture of the net earnings of the deceased, present as well as the future. Therefore the foundation of calculation is the quantity of the wages or earnings of the deceased and out of this, the estimated amount required by the deceased for his personal and living expenses, has to be deducted. Therefore, the value of dependency not only includes expected maintenance but also savings. The law also provides that the domestic services provided by the deceased also have a economic value that can be assessed and the deprivation of service is also a pecuniary loss as is the lack of income. The extent of compensation that can be paid in a particular case has to be decided on the ground of the actual damages up until the time the damages are evaluated and the fiscal value of the support and services reasonably expected to be provided by the deceased in future. 


Application
: Under these circumstances, it can be said that David does not satisfy the test described in Alcock. The reason is that he does not have a closed idea of love and affection with the victim of the accident. Moreover, he had not witnessed the accident himself or its immediate aftermath.

In the same way, it can be said that the mother of the victim, Fiona also does not have a successful claim for the psychiatric injury suffered by her because although they can be presumed that she had a close tie of love and affection with the victim, being a mother but she had not witnessed the incident with her own unaided senses.

In the present case also, Barry was driving on a country road and the responsibility for the road and the tree was of the ADC. At the same time, the Council was aware of the fact that the branches of trees falling off and hitting cars on the roads was a problem and the Council has also developed procedure for deciding the priority according to which the trees have to be cut down or pruned for reducing this risk. However the procedure for determining the priorities was adopted carelessly by the Council and if a careful process would have been adopted by the Council, the branch that hit Barry's car and injured him would have been removed earlier. In this way, it is clear that in the present case, Barry had suffered injury as a result of negligence on the part of the Armidale Development Council. Under these circumstances, it can be said that that he Barry has a claim under negligence against the Council.


In the present case also, Richard was a qualified solicitor and was 35 years of age. He was looking after his wife, Constance and two children Edward and Albert. Therefore in this case even if the family had started to live with Hector who was taking good care of the family, still the amount of damages payable to Constance and the two children has to be decided on the basis of their income of Richard. Warwick will be liable to pay damages to Constance and Albert and Edward on the basis of the past as well as the expected future income of Richard.

Conclusion

In this case, it can be said that compensation cannot be awarded to David and Fiona for the psychiatric injury suffered by them. On the other hand, Armidale District Council is liable to pay damages to Barry for the injuries suffered by him when a branch of a tree fell on his car. Warwick will be liable to pay compensation to Constance and the children of Richard, Albert and Edward even if Hector is supporting them and taking good care of them.

References

Balkin RP and Davis JLR, 2013, Law of Torts (LexisNexis Butterworths, 5th ed.)

Davies M and Malkin I, 2014, Focus:Torts (LexisNexis Butterworths, 7th ed).

Lunney M & Oliphant K, 2013, Tort Law: Text and Materials, Oxford University Press, 5th ed.

Luntz, H., Hambly, D., Burns, K., Dietrich, J. and Foster, N., 2012, Torts: Cases and Commentary (LexisNexis Butterworths, 7th ed.

Mendelson, D, 2015, The New Law of Torts, Oxford University Press, 3rd ed.

Richards B, De Zwart M, Ludlow K, 2013, Torts Law Principles, Thomson Reuters

Sapideen, Vines & Watson, 2012, Torts: Commentary and Materials (Thomson Reuters)

Stewart, P & Stuhmcke, 2012, Australian Principles of Tort Law (Federation Press, 3rd ed)

Stickley A, 2013, Australian Torts Law, LexisNexis Butterworths, 3rd ed.

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310

Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428

Behrens & ors v Bertram Mills Circus Ltd. [1957] 2 QB 1

Brodie v Singleton Shire Council [2001] HCA 29

Caparo Industries plc v Dickman [1990] UKHL 2

Donoghue v Stevenson (1932) AC 562

Greatorex v Greatorex [2001] 1 WLR 1970

Hinz v Berry [1970] 2 QB 40

McFarlane v E. E. Caledonia [1994] 1 Lloyd's Rep 16

Page v Smith [1996] 1 AC 155

Reilly & Anor v Merseyside Regional Health Authority [1994] EWCA Civ 30

Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227

Shaddock V Parramatta City Council (1981) ALR 385

W v Essex County Council [2000] 2 WLR 601

Wagon Mound no 1 [1961] AC 388

White & Ors v Chief Constable of South Yorkshire [1998] 3 WLR 1509

Wyong Shire Council v Shirt [1980] HCA 12

Civil Liability Act, 2002
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