I Randall v Kate
A Damage
Randall (the plaintiff) suffered ‘personal injury’,[footnoteRef:1] namely physical harm (right leg amputation) and mental harm (severe depression and anxiety) following the car collision with Kate (the defendant). Factoring in s 32(3) of the Civil Liability Act 2002 (NSW) (CLA) and the definition of "consequential mental harm”,[footnoteRef:2] we can see that the mental harm was a consequence of the physical injury. [1: Civil Liability Act 2002 (NSW) s 5(a).] [2: Ibid s 27.]
B Duty of care
The driver of a vehicle owes an established duty of care to other road users including pedestrians.[footnoteRef:3] The standard applied is that of the reasonable driver - this is not affected by a driver’s level of experience, or their possession of a license.[footnoteRef:4] [3: Cook v Cook (1986) 162 CLR 376.] [4: Imbree v McNeilly (2008) 236 CLR 510.]
The defendant would be found negligent in the control and management of her vehicle. She would be liable because it was reasonably foreseeable that her actions (negligent driving) might bring harm to others.[footnoteRef:5] [5: Chapman v Hearse (1961) 106 CLR 112.]
Does the defendant owe the plaintiff a duty of care to avoid the car crash resulting in his severe depression and anxiety? To establish a duty of care, the plaintiff has to satisfy the requirement of the CLA s 32(2).[footnoteRef:6] [6: Civil Liability Act 2002 (NSW) s 32(2).]
The test under the CLA s 32(1), is whether it was reasonably foreseeable that a person of normal fortitude would suffer a psychiatric illness.[footnoteRef:7] It is reasonably foreseeable that a person would suffer a psychiatric illness after being in a car crash and having his leg amputated ending his AFL career. Factoring in CLA s 33[footnoteRef:8] and s 32(2)(a),[footnoteRef:9] it is likely that the defendant owes a duty of care to the plaintiff on the basis that mental harm was suffered as the result of ‘sudden shock’[footnoteRef:10] from the originating physical injury he suffered from the car collision. [7: Ibid s 32(1).] [8: Ibid s 33.] [9: Ibid s 32(2)(a).] [10: Tame v New South Wales (2002) 211 CLR 317.]
C Standard of care
To determine whether the defendant was at fault for the ‘personal injury’.[footnoteRef:11] As a general rule, the standard of care required is an objective one, that of a reasonable man. In Blyth v Birmingham Waterworks, Alderson B stated that ‘Negligence is the omission to do something which a reasonable man… would do something which a prudent and reasonable man would not do’. [footnoteRef:12] [11: Civil Liability Act 2002 (NSW) s 5.] [12: Blyth v Birmingham Waterworks (1856) 11 Ex 781 156 ER 1047, at 784.]
In this case, the defendant must exercise the same care as that of a ‘reasonable person’ in the same situation, which includes obeying traffic laws and paying attention to pedestrian’s and other drivers. The defendant has failed to do so as she drove through an intersection containing a S...
