Assessing Psychiatric Injury and the New CTP Regime Presented by Luke Gray Partner - Finlaysons
SA CTP Scheme OLD SCHEME MVA s on or before 30 June 2013. NEW OR CURRENT SCHEME MVA s on or after 1 July 2013
KEY ELEMENTS 1. DUTY OF CARE 2. BREACH OF DUTY 3. CAUSATION 4. ASSESSMENT OF DAMAGES
OVERVIEW Consequential Mental Harm vs Pure Mental Harm Duty of care - Section 33 Civil Liability Act 1936 - Circumstances of the case - Case Study (Anwar v Mondello Farms Pty Ltd [2015] SASCFC 109) Causation (schizophrenia claims) Damages - Section 53 Civil Liability Act 1936 - present at the scene of the accident when the accident occurred - Case Study (King v Philcox [2015] HCA 19) New/Current CTP Scheme - ISV & GEPIC ratings for pure mental harm
Consequential vs Pure Mental Harm Consequential Mental Harm means mental harm that is a consequence of bodily injury to the person suffering the mental harm Pure Mental Harm means mental harm other than consequential mental harm
Duty of Care Section 33 of the Civil Liability Act 1936 (SA): 33 Mental harm duty of care 1.A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant's position would have foreseen that a person of normal fortitude in the plaintiff's position might, in the circumstances of the case, suffer a psychiatric illness.
Duty of Care Pure Mental Harm Section 33(2) Civil Liability Act 1936 (a) in a case of pure mental harm, the circumstances of the case to which the Court is to have regard include the following: i. whether or not the mental harm was suffered as the result of a sudden shock; ii. whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril; iii. the nature of the relationship between the plaintiff and any person killed, injured or put in peril; iv. whether or not there was a pre-existing relationship between the plaintiff and the defendant;
Duty of Care Pure Mental Harm Sudden Shock Sudden sensory perception of a distressing event. Sudden impact as opposed to a progressive effect Subsequent care scenarios
Duty of Care Pure Mental Harm whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril Direct Perception & Proximity Psychiatric illness induced solely distressing news previously excluded by being told The Aftermath Doctrine Direct Perception and Proximity no longer essential ingredients to duty of care
Duty of Care Pure Mental Harm the nature of the relationship between the plaintiff and any person killed, injured or put in peril Close relatives parent, spouse and children Siblings King v Philcox Bystanders?
Duty of Care Pure Mental Harm Relationships whether or not there was a pre-existing relationship between the plaintiff and the defendant
Duty of Care Consequential Mental Harm Section 33(2) Civil Liability Act 1936 (b) In a case of consequential mental harm, the circumstances of the case include the nature of the bodily injury out of which the mental harm arose.
CASE STUDY Anwar v Mondello Farms Pty Ltd KEY FACTS: - Not a CTP claim but a workplace injury - Crush injury to right hand which required surgery (skin graft) - Painful but not a life threatening injury - Plaintiff diagnosed with schizophrenia 5 months after work injury
CASE STUDY Anwar v Mondello Farms Pty Ltd KEY FINDINGS BY TRIAL JUDGE: - Negligence and causation established. - The defendant s duty of care did not extend to the development of the plaintiff s schizophrenia. - This was an extreme reaction by an extremely vulnerable and predisposed individual - Plaintiff was entitled to compensation only for the immediate damage of the right hand and not for the schizophrenia awarded approximately $18,000.00 in damages
CASE STUDY Anwar v Mondello Farms Pty Ltd KEY FINDINGS BY FULL COURT The question to be answered is not whether the plaintiff was a person of normal fortitude The specific psychiatric illness suffered does not need to be foreseeable. The question is the foreseeability of suffering ANY psychiatric illness. It was found to be reasonably foreseeable that the plaintiff would suffer some psychiatric illness in the circumstances of the case. Therefore, the defendant s duty of care extended to the development of the plaintiff s schizophrenia Plaintiff awarded over $1.3 million in damages
CAUSATION Schizophrenia Claims Anwar v Mondello Farms Pty Ltd Hawker & Ors v Miller [2009] SADC 150
RESTRICTIONS Section 53 Civil Liability Act 1936 53 Damages for mental harm (1) Damages may only be awarded for mental harm if the injured person (a) was physically injured in the accident or was present at the scene of the accident when the accident occurred; or (b) is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident. (2) Damages may only be awarded for pure mental harm if the harm consists of a recognised psychiatric illness. (3) Damages may only be awarded for economic loss resulting from consequential mental harm if the harm consists of a recognised psychiatric illness.
Present at the scene of the accident when the accident occurred CASE STUDY King v Philcox KEY FACTS: Plaintiff s brother suffered fatal injuries in a motor vehicle accident Plaintiff drove past the accident scene on 5 occasions but after the actual point of impact Plaintiff did not realise his brother was involved until he was informed by his parents later that night.
CASE STUDY King v Philcox Trial Judge found that the plaintiff was not present at the scene of the accident when the accident occurred Full Court of the Supreme Court of South Australia found that the plaintiff was present at the scene of the accident when the accident occurred. High Court unanimously found the plaintiff was not present at the scene of the accident when the accident occurred
CASE STUDY King v Philcox KEY FINDING: In South Australia, in pure mental harm claims, presence at the aftermath of a motor vehicle accident will not be sufficient to satisfy Section 53 of the Civil Liability Act 1936 UNLESS you are a parent, spouse or child
New/Current Scheme No ISV for consequential mental harm - treated as a feature of the injury suffered by the plaintiff Only pure mental harm attracts an ISV. The Guide to the Evaluation of Psychiatric Impairment for Clinicians (GEPIC) must be used to assess psychiatric impairment arising from pure mental harm.
Assessing Psychiatric Injury and the New CTP Regime Presented by Luke Gray Partner - Finlaysons