The Law Handbook 2024

930 Section 10: Accidents, insurance and compensation However, there still may be a duty to warn of the risk (s 55). Contributory negligence Contrary to previous common law principles, if a court determines that there should be a reduction of 100 per cent for contributory negligence, then a claim for damages is defeated (s 63). Negligence of professionals The standard of care for professionals is the standard of ‘peer professional opinion’ (s 59(1)). The term ‘professional’ is not defined, but it will at least cover such people as doctors and lawyers. ‘Peer professional opinion’ is the manner of practice at the time ‘widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice in the circumstances’ (s 59(1)). A court can still override ‘peer professional opinion’ if it determines that that opinion is unreasonable (s 59(2)). Mental harm The Law of Negligence Act distinguishes between ‘consequential mental harm’ (psychological or psychiatric injury that is a consequence of an injury, for example, depression as a result of back injury) and ‘pure mental harm’ (psychological or psychiatric injury other than consequential mental harm) (s 67). Recovery of damages for all types of mental harm requires that it was foreseeable that a person of ‘normal fortitude’ might suffer a recognised psychiatric illness if reasonable care were not taken (ss 72, 73). At common law a defendant was liable for all the medical consequences of an injury even if a plaintiff was more susceptible to injury because of a pre-existing medical state (such as an abnormally thin skull). That principle, known as the ‘egg shell skull’ rule, will no longer be applicable in cases of mental harm. In cases of damages for pure mental harm for ‘secondary’ nervous shock, it will be necessary for the plaintiff to have witnessed an incident involving another person (‘the victim’) or to be in a ‘close relationship’ with that victim (s 73(3)). Also, the victim must be able to recover damages as a result of that incident, if the person suffering secondary nervous shock is to recover damages as well (s 73(3)). Damages can only be recovered for economic loss for mental harm resulting from negligence where the harm consists of a recognised mental illness (s 75). If a defendant knows, or ought to have known, that the plaintiff is a person of ‘less than normal fortitude’ then the Law of Negligence Act amendments do not apply (s 72(3)). Liability of public authorities The Law of Negligence Act introduces major amendments to the liability of public authorities to claims for damages for negligence except for dust (e.g. asbestos) or tobacco-related injuries (s 81). ‘Public authority’ is defined in the Act (s 79) and will include such organisations as local councils. A public authority is not liable for breach of a statutory duty unless its act or omission is so unreasonable that no public authority could consider the act or omission to be a reasonable exercise (s 84(2)). This provision means that it will be very difficult to claim damages for breach of a statutory duty by a public authority. Otherwise, in considering an alleged breach of common law duty of care by a public authority, the court must look at a number of factors such as the broad range of activities performed by the authority, its available resources and its compliance with general procedures and applicable standards. Personal injury damages The following provisions are now included in the Wrongs Act (pt VB). They apply to any person claiming damages for personal injury (‘the claimant’) except for cases set out in section 28C of the Wrongs Act. Exceptions specified in the Wrongs Act include transport accident and work injuries, asbestos-related conditions, and intentional sexual assault or misconduct cases. In calculating damages for claims for past or future economic loss (e.g. loss of earnings and earning capacity), the maximum amount of damages that can be awarded for each week of lost earnings is three times the average weekly earnings at the date of the award (s 28F). Damages for non-economic loss (e.g. pain and suffering) are limited to a maximum amount, which is indexed on 1 July each year (s 28G). As at 1 July 2023, the maximum amount is $713 780. There are also qualifications and limits on the awarding of damages for gratuitous attendant care services and for loss of capacity to provide gratuitous care to dependants (s 28IA–28IE).