Business Law Tame v New South Wales Samples for Students †MyAssignmen

Question: Discuss about the Business Law Tame v New South Wales. Answer: The brief facts of this case are that the plaintiff had met with an accident that was not caused as a result of her fault. Therefore, the plaintiff sought insurance and she became quite anxious. When there was a delay in the agreement for some time. The solicitors of the plaintiff informed her that on the form these had been written by the Police that she had a blood-alcohol reading of 0.14 while the legal limit is 0.05 at the time of the accident. However, the reality was that this was the blood-alcohol reading of the other driver. Later on, the police acknowledged that they had made a mistake and they also issued a formal apology to the plaintiff. However this mistake was rectified by the police after two or three months, but not in time so that it could be passed on to the insurer of the plaintiff. At the same time, there was evidence present to suggest that it was not considered by the insurer that the plaintiff was drunk at the time of the accident. Still a significant amount wa s paid to the plaintiff although it took some time before the payment was made by the insurer. Under these circumstances, the plaintiff developed obsessive and irrational fear that the delay in the payment was somehow related with perceived drunkenness. She also started to hear that everyone around her thought that she was drunk when she met with the accident. It was diagnosed that the obsession of the plaintiff was the result of the psychotic depression that followed the accident. Under these circumstances, the police was by the plaintiff for negligence. Therefore the legal issue in this case was related with the duty of care, psychiatric injury and the pure case of mental harm. In this case, the appeal made by Mrs. Tame was rejected by the High Court as she had developed a psychiatric condition after the police accident report compiled by a NSW police man showed high blood reading to be excessive. In this context, the appellant claimed that she had hardly touched alcohol in the last 20 years. Therefore, she was concerned that if the people will find out regarding the entry, her good name will be tarnished and a reputation will suffer. Although, the report was corrected later on and an apology was also sent to her but she became obsessed with the mistake. The appellant claimed that she started to feel as if he was being punished for her past misconduct. As a result, she started feeling guilty. Due to this, immense stress she suffered from depression and needed counseling. It was accepted by the trial judge that the appellant had developed a psychotic depression illness and therefore gave the verdict in favor of the appellant. But it was held by the NSW Court of Appeal that in cases involving nervous shock, unless the defendant is aware of the fact that the plaintiff is peculiarly susceptible to psychiatric injury, it can be legally assumed by the defendant that the plaintiff is a person of normal fortitude (Annetts v Australian Stations Pty Ltd., 2000). Under these circumstances, McHugh J was of the opinion that there was no duty of care present are part of the defendant. In support of its decision, he quoted Mason J Wiley delivered the decision in Wyong Shire Council v Shirt, 1980). Therefore, it was stated that the risk of injury that is remote in the sense that such injury is extremely unlikely to take place can nevertheless amount to a foreseeable risk. A risk that cannot be treated as fanciful or far-fetched should be considered as real and as a result, foreseeable. Under these circumstances, it was concluded by the court that in the present case, the illness suffered by Mrs. Tame, cannot be described as reasonably foreseeable. Therefore, the conclusion made by the Court of Appeal was upheld that any other person of normal fortitude will not suffer a psychiatric illness after coming to know that in a police report, the blood-alcohol reading has been mentioned incorrectly, although in such cases, the person can become angry or even resentful. However in this case, the court concluded that the psychiatric illness of Mrs. Tame cannot be described as reasonably foreseeable. Therefore the court upheld the conclusion made by the Court of Appeal that any person with normal fortitude is not going to suffer the psychiatric illness after coming to know that incorrect blood-alcohol reading has been mentioned in a police report even if the person is going to become angry. It was stated by the court that there are two types of personal injury, physical or mental. Sometimes, mental harm may be caused as a result of the physical injury (Perre v Apand Pty Ltd., 1999). This means that a person may suffer mental illness due to the physical injury suffered by the body or, it is also possible that the mental harm alone may be suffered by the person, particularly when a job has been suffered by a person due to the fact that such a person has seen a traumatic event. The law provides that the victims of nervous shock, may fall under the catego ry of primary or secondary victims. Therefore, in case of the primary victims, shock is experienced by the victims regarding their own safety, and in the same way, the victims are also the participants in the event. On the other hand, in case of secondary victims, the shock is experienced by them regarding the safety of another person and similarly they also not the participants in the event (Frost v Chief Constable of South Yorkshire Police, 1999). According to the law, earlier it was difficult to claim damages for the mental harm that has been caused as a result of negligence as compared to the physical harm or consequential mental harm that has been caused as a result of the negligence of the defendant. It is also worth mentioning that it was much easier to diagnose physical harm, as compared to your mental harm. Similarly in context of the duty of care of the defendant, it is more difficult to foresee. In order to claim that a duty of care was present on part of the defendant it is required that it should be reasonably foreseeable for the defendant that he or she had a duty towards the claimant (Donoghue v Stevenson, 1932). It is also required that there should be a breach of the duty of care. Under the circumstances, the duty of care will be only if it can be reasonably foreseen that any person of normal fortitude may be going to suffer mental harm as a result of the act. In view of this requirement, the abnormal vulnerabil ity of the plaintiff cannot be taken into consideration while deciding the standard of care that will be applicable in a particular case (Greenland v Chaplin, 1850). The exception that is present to the application of this rule is related with the cases where the defendant is aware of or should have known regarding the presence of such vulnerability of the claimant. In this case, the court also tried to explain the rationale behind the control mechanisms. Therefore the court stated that the rationale behind imposing limitations on the duty to avoid inflicting mental harm on another person can be described as follows. It is harder to discern mental harm, and as a result, it can be faked more easily. Similarly, the ability to claim compensation for mental, is likely to be an unconscious disincentive to recover the compensation. Providing such ability without imposing restrictions will result in indeterminate liability. This will mean that any person can sue the other person. Similarly, if no limitations are imposed on the ability to sue for mental, it may result in imposing an unreasonable or the ocean and burden for the defendant. However, the above-mentioned reasons are not beyond doubt. First of all, most of the above-mentioned concerns can also be applied in case of physical injury also, still. It has not been suggested that these control mech anisms should also be imposed. In the same way, these concerns can be effectively dealt with if a proper distinction is made between mere emotional distress and get proper medical harm, or in other words, the mental illness that is medically recognized. For this purpose, expert evidence can be used effectively and in such a case, it would be eliminated with the help of professional medical opinion instead of pure idiosyncratic judicial perception. The next doubt that can be raised regarding these control mechanisms is that the normal laws related with negligence. Already impose sufficient limitations in the form of reasonable foreseeability and requiring that reasonable care should have been taken by the defendant. Therefore in this case the court stated that there were two reasons due to which it can be said that the police did not have a duty of care towards Mrs. Tame which required them to take reasonable care that the injury of the nature which was suffered by her, should not be cause to her. The first reason was related with the nature of the activity in which the police was involved when they perform the act of completing the accident report and incorrectly filing the information regarding the results of the blood test of Mrs. Tame and the relationship that was present between the police and Mrs. Tame. The second reason, on the grounds of which, the Court of Appeal had given its decision against Mrs. Tame was related with reasonable foreseeability. Regarding the first reason, the court stated that it appears to be provided by the same principles due to which, the court had denied the presence of a duty of care in Sullivan v Moody (2001). By performing its duties, the police was completing an official report related with the circumstances under which the motor traffic accident has been caused. Generally, such report is used for making a decision as to the need for pressing charges against a person who is involved in the accident. In the present case, two persons were involved in the accident, Mr. Lavender and Mrs. Tame. The copies of this report will also be available to third parties, on request and after paying a fee. However, mainly this was an official police report related with the incident and the result of police observation, inquiries and tests. Under these circumstances, the court concluded that the Court of Appeal was right when it stated that the psychiatric injuries caused the Mrs. Tame in which a significant contribution has been made by the error of the police, cannot be described as reasonably foreseeable. This conclusion of the court is not dependent on the application, as inflexible test of liability, of the standard of normal fortitude but an important factor that needs to be considered is the particular susceptibility of Mrs. Tame regarding such psychiatric illness. Therefore as discussed above, the court was not only concerned with scientific predictability. In the present case, the question was related with the reasonableness of requiring the police to have this possibility in content deletion when they completed the report. Therefore the police could not be reasonably expected to foresee that their mistake may result in a risk of harm to Mrs. Tame of the kind that was caused. Therefore, it was not reasonable to require the police to have in their content deletion, the mental health of Mrs. Tame when they were recording the results of the blood tests of Mrs. Tame. As a result, the court dismissed the appeal with costs. References Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 Law,Donoghue v Stevenson, [1932] AC 562 Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 Greenland v Chaplin (1850) 5 Ex 243 Perre v Apand Pty Ltd. (1999) 198 CLR 180 Sullivan v Moody [2001] HCA 59 Wyong Shire Council v Shirt [1980] HCA 12