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the claimant before the accident, and then clearly delineates them in pre- and post-accident terms, the court will be effectively substituting the adverb “substantially” for “solely” when calculating damages for gratuitous care. It also would be helpful to develop a definition of “need” for the purposes of gratuitous services or devise a legal test for assessing it. Statutory thresholds merely measure its “quantity” in terms of hours, to be translated into hourly or weekly rates.

Interface between damages for gratuitous care and compensation for pure psychiatric injury (pure mental harm)

Finally, the major policy consideration underlying the concept of compensation for gratuitous care is the acknowledgment – in a rather peculiar and indirect way – of loss, sometimes hardship, experienced by family members and friends who deal on a day-to-day basis with the demands of caring for someone who has suffered an injury. When this head of damages was created in the 1970s, the law, with some notable statutory exceptions,47 was still virtually in total denial of the fact that an injury to, or death of, a person can have devastating psychological consequences for those with whom he or she was in a loving relationship. Since then, the High Court in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317,48 followed by Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33, enunciated that the determining factor of recovery for “pure mental harm” is reasonable foreseeability of psychiatric injury.49 Hence, defendants’ liability for “pure mental harm”50 should be “the closeness and affection of the relationship” between the person injured or killed by the defendant and her or his close relatives. McHugh J in Gifford v Strang Patrick Stevedoring Pty Ltd (at [51]) expressed the rule in the following terms:

The test is, would a reasonable person in the defendant’s position, who knew or ought to know of that particular relationship, consider that the third party was so closely and directly affected by the conduct that it was reasonable to have that person in contemplation as being affected by that conduct?

In general, all Australian States and Territories allow recovery for pure mental harm in the form of a recognised psychiatric illness if the claimant is a close member of the family of a person killed, injured or endangered in the accident.51 This means that, once found liable, a defendant who has wrongfully injured or killed one person can face separate actions by several claimants arising out of the same wrong.52 The defendant will have to pay damages that include compensation for gratuitous services provided to the plaintiff by close relatives. If the gratuitous carers for whose services the injured person has been compensated are also close relatives who have suffered a foreseeable psychiatric injury as a result of the wrongful injury to the plaintiff, the relatives may have an independent action in negligence for mental harm against the defendant.

For example, in Masri v Marinko [1998] NSWSC 467, Mrs Masri suffered catastrophic brain damage while undergoing an abortion. Through her next friend, she sued in negligence the medical practitioner who performed the abortion. She was awarded $3.7 million in damages, which included $317,200 for past gratuitous services by her husband, Mr Masri, and $2,726,850 for future care and management.

47 Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4; Law Reform (Miscellaneous Provisions) Act 1956 (NT), Pt VII, ss 23, 24 and 25; Law Reform (Miscellaneous Provisions) Act 1955 (ACT), Pt VII, ss 23, 24 and 25; Civil Liability Act 1936 (SA), ss 28 and 29; Compensation (Fatal Injuries) Act 1974 (NT), s 10.

48 49 The Tame and Annetts cases were heard together. The term “mental harm” has been defined as “impairment of a person’s mental condition”: see Civil Liability Act 2002 (NSW), s 27.However, both at common law and under statute, damages are not available for conditions other that “recognised psychiatric illness”.

50 The action for variously called “pure psychiatric injury”, “pure nervous shock” or “pure mental harm” refers to liability for negligently inflicted psychiatric illness that does not arise from a physical injury to the claimant.


Civil Liability Act 1936 (SA), s 53; Civil Liability Act 2002 (Tas), s 32(2)(b); Wrongs Act 1958 (Vic), s 73(2): “a close

relationship with the victim”; Error! Reference source not found. (ACT), s 36; Civil Liability Act 2002 (NSW), s 30(2)(b); Law Reform (Miscellaneous Provisions) Act 1956 (NT), s 24(1) is to be interpreted according to common law; Civil Liability Act 2002 (WA), s 5Q, reflects the common law; Queensland is governed by the common law.

52 Under the survival of actions rule, the estate of the deceased plaintiff may proceed with a cause of action the deceased would have had against the defendant, if she or he had lived; and the dependants may sue the defendant under the wrongful death action to recover damages for the foreseeable loss they suffered that as a result of the victim’s death.


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