Case 2 when the defendants negligence creates an

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Case 2 - When the defendant’s negligence creates an abnormal sensitivity to further injury and P did not have a pre existing susceptibility. Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 (CB 366) Facts: P injured at work. His hand was cut and the employer found negligent. He was later admitted to hospital with a swollen hand and was feverish. By the time of the trial he was very sick and scarcely able to look after himself. P’s expert witness said that the P had contracted an infection and irreversible brain damage had occurred. D’s expert witness said that the P suffered from compensation neurosis ( due to stress of trial ) made more severe due to the trial. It was clear that P could recover damages for the cut but not the subsequent injuries. The court indorsed Smith . The court said foreseeable injury is claimable by P. The only relevant injury is first. Provided it can be proved that all other past and future injuries are attributable to D, Court said it is irrelevant which expert is right in both cases the D will be liable. TSR applies when: Initial injury be of an RF kind. Where P is unusually susceptible and consequences are worse Clearly applies to physical injury Q when it applies to other cases Nader: Psychological injury will be allowed To what type of damage does the rule apply? Physical injury: yes ( Smith ; Stephenson ) Psychological harm: yes ( Nader ) Property damage: unknown 30
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Economic loss: unknown Nader Facts: P was 10 years old boy. Boy fell from a bus and suffered minor physical injuries. D was liable and P could recover. As a result P developed a rare psychological condition. P claimed it was due to fall. D claimed it was due to parents reaction or that the parents argued all the time or that the parents refused treatment to increase compensation. Majority of the court of appeal held that the boy could recover for the psychological harm. They applied the TSR and said it should extend to any psychological harm even if a susceptibility existed and even if it was due to the parents. TSK will apply to psychological harm. It is unknown whether property of economic loss is covered. Remoteness Test EXAM 1. General test is whether the kind of damage was RF. 2. Cases where there is an abnormal susceptibility the TSR must be considered. 31
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DEFENCES (a) Contributory Negligence (“CN”) – Non Complete Defense Wrongs Act 1958 (Vic) ss 25-26 (CB 385); ss 62-63 S26(1) - If P suffers damage partly as a result of her contributory negligence and partly as a result of D’s negligence: (a) except as provided in s 63, P’s claim is not defeated by reason of her contributory negligence (b) the damages recovered from D must be reduced to the extent the court thinks just and equitable, having regard to P’s share in the responsibility for the damage Exception - Only to be used in rare Circumstance S63 (Exception to s26(1))- In determining the extent of a reduction in damages by reason of contributory
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