Consequential

Dungan v Padash [2021] NSWCA 66

Section 32 of the Civil Liability Act 2002 (NSW) provides that a defendant does not owe a duty of care to a plaintiff to take care not to cause the plaintiff mental harm unless the defendant 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. The “mental harm” referred to in s 32 means impairment of a person’s mental condition and includes mental harm that is a consequence of a personal injury (ss 27 and 32(3)).

The section applies to both pure mental harm and consequential mental harm (Optus Administration Pty Ltd v Wright [2017] NSWCA 21 at [55]; Williams v Metcash Trading Ltd [2019] NSWCA 94 at [139]). The section implements the recommendation of the Ipp Report (Commonwealth of Australia, Review of the Law of Negligence: Final Report August 2002) at 9.36:

“The Panel’s considered opinion is that

(a)    damages for economic loss resulting from the negligent infliction of mental harm should be awarded only in respect of recognised psychiatric illness, even if the mental harm is consequential on physical injury; and

(b)   such damages should be recoverable only if the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken.”

However, no issue was raised either at trial or on appeal as to whether the appellant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if she negligently ran into the back of the respondent’s car. That question can await decision on another day.