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PART_A_DUTY_OF_CARE

Elements for libaility i establish normal fortitude

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ELEMENTS FOR LIBAILITY : (i) Establish normal fortitude (Which is just another word for reasonable forseeability) S 72(1): A Defendant does not owe a duty of care not to cause pure mental harm unless the Defendnat foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
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The Plaintiff is judged subjectively so that a person who is more susceptible to mental harm shock may only recover when the shock would be reasonably foreseeable outcome for a normal person of normal fortitude. Tame for example, was unable to recover as her harm was not a reasonably foreseeable outcome of the mistake of entering wrong blood level. It was not reasonably foreseeable that upon being informed of a clerical mistake a person of normal fortitude would have developed ‘extreme and idiosyncratic’ reactions as claimed by Mrs Tame (Gummow and Kirby at 233. If the shock is foreseeable the exact nature of the plaintiffs illness need not be foreseeable. (Mount Isa Pines v Pusey) S 72(2 ) Gives guidance by what is meant by phrase “in the circumstances of the case.” So normal fortitude is supported if Include following four factors (None decisive in themselves, but do point to normal fortitude: o Whether mental harm suffered by P due to sudden shock 1. Where P suffers harm from a shocking event, for eg. Seeing a major collision in front of them. (Probably easier to make out ‘normal fortitude’ here than in mental injury that occurs over a long period of time.) o Whether P witnessed person being killed, put in danger If you witnessed person being killed, etc, it makes it more likely that a person with normal fortitude would suffer psychiatric injury. If you heard about it hours later, then that goes against you. o Rship between P and person killed and put in danger The closer the rship between P and initial victim the more likely it is that a person of normal fortitude will suffer mental injury (your best friend being run over as opposed to a stranger.) o If there is pre-existing relationship between P and D More likely to satisfy fortitude test is if they were closely related. s 72(3) EXCEPTION TO ABOVE Does not affect doc if D knew P was susceptible to mental injury and person of less than normal fortitude. Normal fortitude requirement does not have to be satisfied. However normal fortitude will apply to most cases (unless there was a special pre-existing relationship or prior interaction between parties) These 2 differ from pre-existing CL: sudden shock and direct perception are relevant to normal fortitude element. In CL, these were factors in their own
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In situation where suffered shock due to seeing somebody else being injured or killed, there are future requirements needed in addition to normal fortitude requirement S 73 (1): Applies to liability to P from mental injury due to seeing harm to someone else (this provision is more of an introduction)
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ELEMENTS FOR LIBAILITY i Establish normal fortitude Which...

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