LWZ116 Lecture Notes - Lecture 6: Anxiety Disorder, Wrongful Birth, Hospital Management Committee
Lecture 6 - Torts
2017
DAMAGE - when referring to the Damage element in Negligence, it requires examining
whether the plaintiff has suffered some harm or loss. There’s a range of different factors
that are considered:
1. Damage: Whether the loss suffered by the plaintiff is a kind of damage recognised by
the law;
2. Causation: Whether the defendant’s breach caused the plaintiff’s loss;
3. (policy driven idea) Remoteness: Whether it is appropriate to hold the defendant
responsible for the plaintiff’s loss
DAMAGE:- Negligence requires some damage to have been suffered. Even if there is a clear
duty of care, and absolute breach of that duty, but if no harm is suffered as a result of that
breach, there is no cause of action. Williams v Morland (1824) 2 B&C 910; Williams v
Milotin (1957) 97 CLR 465; Schwebel v Telekes [1967] 1 OR 541; Tabet v Gett (2010) 240
CLR 537; Gregg v Scott [2005] 2 AC 176
Damage as a legal harm - “Damage” = “some head of loss for which compensation will be
awarded”. Damage may consist of several items, viz. medical expenses, hospital bills, pain
and suffering.
DAMAGES as in contrast to DAMAGE is the monetary award, awarded as a remedy for
infliction of DAMAGE.
Legally Sufficient Damage: The damage must be non-trivial.
•Property damage;
•Personal Injury;
•Physical; and
•Psychiatric (including pure psychiatric)
•Economic Loss
•Consequential loss isas a result of some personal injury I cannot go to work,
loss of income as a result or consequences of personal injury; and
•Pure economic loss is when the only injury you have suffered is financial loss.
Damages Not Recognised at Law:
‘The phrase ‘legally cognisable’ means ‘capable of being recognised for the purpose of
judicial proceedings’ Harriton v Stephens (2006) 226 CLR 52
Insufficient/Inadequate damages include:
1. Loss Associated with Illegal Activities: Meadows v Ferguson [1961] VR 594
(bookmaker income)
2. Loss Unable to Be Quantified, too vague: Roberts v Roberts (1864) 5 B & S 384 –
harm suffered from being expelled from a social club.
3. Grief and Stress - Insufficient Damage – explained below.
WRONGFUL LIFE – means anybody born with such severe disabilities, because the doctor
was negligent in informing the mother, who would have aborted the foetus if known.
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Lecture 6 - Torts
2017
Refer to Harriton v Stephens (2006) 226 CLR 52 and Waller v James (2006) 226 CLR
136. A comparison between life with disabilities and non-existence for the purposes of
proving actual damage and apprehending that damage is impossible. The judges in a
number of cases recognised that such a comparison is impossible and in doing so made
references to philosophers and theologians as persons better schooled than courts in
apprehending the ideas of non-being, nothingness and the afterlife. There is no practical
possibility of a court (or jury) ever apprehending or evaluating, or receiving proof of, the
actual loss or damage as claimed by the appellant. It cannot be determined in what sense
[the plaintiff’s] life with disabilities represents a loss, deprivation or detriment compared
with non-existence.’
In other words, the Courts are saying, that it does not know whether non-existence
is better or worse, it simply cannot make that comparison. Without that comparison, it is
conceptually impossible for the courts to assess the damage, and thus no damage can be
proved.
Wrongful Birth – the action is brought by the mother, claiming costs associated with giving
birth to a child she would have not otherwise have given birth to. The claim arises from
negligence leading to the birth of a disabled child, where but for the negligence of the
doctor, the pregnancy would have been terminated. Refer to Veivers v Connolly [1995] Qd R
326, where the court awarded the plaintiff damages, for the additional costs of raising a
disabled child, over and above those of raising a healthy child the amount of $850000. The
court appreciated that there is a financial cost in raising a disabled child nd plaintiff can
recover for that.
Wrongful Conception – in such cases, the mother would not have conceived, but for the
negligence of the doctor. The mother may bring a case for the full costs of raising the child.
Refer to Cattanach v Melchoir (2003) 215 CLR 1 where…… The high court found in favour of
the mother, and allowed her to recover the costs for raising that child. The court found that
assessing the damages was ot an issue as the court could quantify the costs of raising a
child. The court wants to show what is provable and the costs of raising a child is.
Insufficient Damage - Grief and Stress - The law does not recognise general anxiety or
vexation: Calveley v Chief Constable of Merseyside Police [1989] AC 1228
Nor does it recognise emotional disturbance that does not manifest into some recognised
psychiatric injury: Leonard v Pollock [2012] WASCA 108
The court does not want to involve itself in valuing the above. It’s not sufficiently serious for
the courts to award damages. Law does not recognise emotional disturbances that are real
but not serious enough to be a psychiatric injury. However, feeling a bit anxious, not enough
diagnosable generalised anxiety disorder, as a psychiatric injury will be compensated. This
was the case in Tame v NSW (2002) 211 CLR 317, where the court observed, “…save in
exceptional circumstances, a person is not liable, in negligence, for being a cause of distress,
alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised
psychiatric illness. ‘Grief and sorrow are among the "ordinary and inevitable incidents of
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Document Summary
Damage - when referring to the damage element in negligence, it requires examining whether the plaintiff has suffered some harm or loss. There"s a range of different factors that are considered: damage: whether the loss suffered by the plaintiff is a kind of damage recognised by the law, causation: whether the defendant"s breach caused the plaintiff"s loss; 3. (policy driven idea) remoteness: whether it is appropriate to hold the defendant responsible for the plaintiff"s loss. Damage:- negligence requires some damage to have been suffered. Even if there is a clear duty of care, and absolute breach of that duty, but if no harm is suffered as a result of that breach, there is no cause of action. Williams v morland (1824) 2 b&c 910; williams v. Milotin (1957) 97 clr 465; schwebel v telekes [1967] 1 or 541; tabet v gett (2010) 240. Clr 537; gregg v scott [2005] 2 ac 176.
