Category Archives: Negligence

Pure PTSD claims and the decision in Pel-Air: a body blow for plaintiffs

Whilst I realise that for most members of the public a juicy set of facts is far more compelling than even the most irresistibly cogent legal precept, I am often disappointed by the scarcity of legal context given in news stories these days. I did however come across one the other day that had enough of both to pique my interest.

 

It involves a man who has sued an airline alleging that he found the tip of a hypodermic needle in his inflight meal of butter chicken with cauli pea masala. The man alleges that he only discovered the needle once it was inside his mouth.

 

The story immediately brought to mind the quintessential and if true, makes the escargot in Donoghue seem like a delicacy by comparison.

 

Based on what was reported, it would seem that whilst the man may have sustained some physical injuries to the inside of his mouth, the focus of his damages claim will be in respect of alleged depression and post-traumatic stress.

 

The interesting bit of law came from a quote of what the man’s solicitor said, which was to the effect that the plaintiff is seeking damages under the Australian Consumer Law (ACL) and the Civil Aviation (Carrier’s Liability) Act, which for ease of reference I’ll give the somewhat unfortunate acronym of CACLA.

 

Negligence actions framed as a breach of the ACL provide a useful means of circumventing the various liability hurdles and damages caps contained in the Civil Liability Act 2002 and its cognate provisions in other states (cf: Nair-Smith v Perisher). For this reason, it has become a common cause of action where a contractual relationship exists between the relevant parties such as there would have been here.

 

Though not specified in the article, the implied term of due skill and care may be the go-to, or with respect to the supplier sub-contracted to prepare the meal (ie. the “manufacturer”, as defined in the ACL), which the article reports has also been sued, a breach of the statutory obligation to supply safe and/or merchantable goods.

 

There is a defence to that latter action if the manufacturer can show the alleged defect wasn’t there at the time of supply. The airline’s claim, also referred to in the article, that the meal went through a metal detector twice before it made it onto the plane may well assist both it and the supplier in this regard. Similar issues arose in a case called Effem Foods v Nicholls [2004] NSWCA 332 where a consumer was injured by a safety pin concealed within a chocolate bar.

 

The article’s lack of detail regarding that aspect of the claim (there’s that problem again) deems any further comment on this part of the claim otiose (such a judge’s word that I feel a little bit of an imposter in using it). But it’s the CACLA part of the claim that interested me more anyway. CACLA is applicable where a person sustains “bodily injury” whilst on an aircraft or during the course of embarking or disembarking.

 

It was no doubt a particularly appealing basis upon which to claim in the context of these facts because CACLA imposes strict liability, thereby removing the need for the claimant to prove negligence to complete his cause of action.

 

However, if a plaintiff claims for pure psychiatric injuries under CACLA, a decision of the NSW Court of Appeal handed down in March 2017 has now made things more difficult. In Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32 the Court was asked to deal with the question of whether PTSD is a “bodily injury” as that term is understood by CACLA.

 

At this point I should say that the decision may also prove to be of some moment in the interpretation of other statutes incorporating those words, of which there are a few. Section 25 of the Companion Animals Act 1998 (NSW), which deals with the (strict) liability of dog owners for injuries caused by their pooches, is one that immediately comes to mind.

 

The plaintiff in Pel-Air was a passenger in a small plane that the pilot was forced to ‘ditch’ into the sea off Norfolk island due to bad weather. As a result, she spent about 90 minutes in the water, suffering multiple injuries including PTSD.

 

It is accepted law that where a physical injury and psychological injury are connected, this kind of psychiatric injury will meet the “bodily injury” requirement. Some of the plaintiff’s psychiatric injuries in Pel-Air fell into this category. However, for what is often termed “pure” psychiatric injury, such as the PTSD suffered by the plaintiff in Pel-Air something more would be required.

 

Nevertheless, at first instance, Justice Schmidt of the NSW Supreme Court determined that given the plaintiff’s PTSD had resulted in ongoing dysfunction that was “consistent with chemical changes in her brain and body and alterations in her brain’s neurotransmitter pathways, which [had] prevented a return to normal brain function”, this was enough for it to be properly categorised as a “bodily injury”.

 

On appeal, Justice Macfarlan (with whom Justices Ward and Gleeson agreed) undertook a detailed analysis of the evidence provided by the experts commissioned by each party and in particular, the joint document produced by them after they had ‘conclaved’, which read (quoted at judgment [21]):

 

“There is meta-analytic research evidence to suggest that in some persons suffering from PTSD or Generalised Anxiety Disorder can suffer from physical changes to specific areas on the brain [sic], [eg.] shrinkage of the hippocampus…[or] changes to the prefrontal areas of the brain… [However], the experts agree that there is no evidence available to them (i.e. imaging) that will prove that the plaintiff has structural changes to her brain.” [emphasis added]

 

His Honour then undertook an interesting review of the case authorities in the United Kingdom, the United States and Canada on the point, which were all highly relevant given that their legislation, in the same way as CACLA, includes the words “bodily injury”, as a result of them all having incorporating the unifying Montreal Convention into their domestic law.

 

Consistent with those authorities, the Court found that something more than malfunctioning or chemical change must to be shown for a claim to be made out in respect of pure psychiatric injury under CACLA. For example, structural or what his Honour referred to as “actual physical damage” (at [47]). It seems that a plaintiff alleging pure psychiatric injury under CACLA will now need brain imaging showing a change in brain architecture in order to succeed.

 

Excuse the pun, but to me this would seem like a bit of a body blow to what might otherwise be a rather straightforward statutory claim.

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Filed under Civil, Crime, damages, evidence, Negligence, statutory interpretation

Pokemon Go: a change of landscape for insurers and gamers alike

As a concerned parent, I have recently had cause to discuss with few fellow mums and dads the whys and wherefores of the Pokemon Go ‘phenomenon’; which, like the word ‘crisis’, has become one of those hyperbolic usages that characterises this age of sensationalism we are living in.

In line with accepted best practice parenting, one particular couple said they took the immersive approach, having decided to spend last Saturday afternoon playing it with their 12-year-old son.

Their rather tame introduction took them as far as the local shops in search of the nearest Pokemon to capture, which for the uninitiated, is the principal aim of the game. And sure enough, right there, smack bang in the middle of the road (in reality, well sort of) was the coveted creature.

It was at this point in telling the story that the boy’s father made the observation that the Google Map data used to determine the player’s location and distribute the various Pokemon is not vetted. Therefore players could well be led onto a busy road in search of glory; or off a cliff perhaps. Yikes!!

However, could or should it be? The conventional wisdom among gamers is that Pokemon are distributed by operation of an algorithm (a bit like the mysterious way Google sees some people’s websites arrive higher up the list of search responses than others). Therefore, it seems to be somewhat random.

The game’s terms and conditions say players should “be aware of [their] surroundings and play safely. …[and take] responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies … reasonably necessary for any injuries.”

But what about the 5 year-old child who all alone embarks on the same trip to the shops on a Pokemon Go quest and is busy standing in the middle of the road trying to make a catch when a car screams around the corner…

Even if such a disclaimer would have any force at law, surely it couldn’t be used to protect against this kind of claim.

Subject to a contributory negligence reduction (which would be little or none for a child of this age), this situation would be the responsibility of the CTP insurer. However, if I were the CTP insurer, I’d be ready for battle with a cross claim for contribution from the game provider. Surely such a tragic result is foreseeable enough to give rise to a duty of care on its part. The misplaced Pokemon could perhaps be likened to the ‘snail in the bottle’ a la Donoghue v Stevenson.

Then the question arises as to how reasonable it is to expect the system to be sufficiently controlled by the provider so as not to put its users in such obvious peril. That would make for a fascinating debate, though it may never reach a courtroom given it would likely result in the scrutiny of the top secret Pokemon distribution algorithm itself.

Airbnb now offers complimentary landlord style insurance to its subscribers whose use of the property as a short term rental might see them excluded by a conventional policy. So I’m sure there is an insurer brave enough to take on this new risk at the right premium, something I’d be strongly recommending if it hasn’t been done already.

Apparently, there’s already a Russian bank already offering to insure users themselves (https://www.rt.com/business/351813-pokemon-go-sberbank-insurance).

Watch this space (no pun intended).

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Filed under Civil, contributory negligence, Insurance, Negligence

Getting to know the ‘Reasonable Public Authority’

 

In Curtis v Harden Shire Council [2014] NSWCA 314, Basten JA of the NSW Court of Appeal undertook the difficult (and much needed) task of a comprehensive interpretation of section 43A of the Civil Liability Act 2002. The section is applicable in negligence actions brought against a public authority (eg. the Crown or a local council) where the complaint involves its exercise of a ‘special statutory power’, ie. something the authority has power to do that other ordinary folk do not.

 

The facts in Curtis involved the exercise of a fairly common ‘special statutory power’, the installation of traffic signs. In performing road works, Harden Shire Council had covered the surface in a layer of loose gravel. A woman lost control of her vehicle whilst driving on the road in question and fatally collided with a tree.

 

Proceedings were brought by her de facto partner for negligence on the part of the council for failing to erect either a reduce speed sign or a slippery road sign. The council defended this allegation on the basis that section 43A provided it with a complete defence. Section 43A states that Council would not be liable unless its failure to exercise the power to erect the signs was:

 

…so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

 

This kind of language is familiar to most lawyers not only for its turgidity but also because it echoes perhaps the most well-known of all administrative law concepts, Wednesbury unreasonableness.

 

With its awkward wording, section 43A (as does the Wednesbury standard) appears to set the standard of reasonableness at an indeterminately high level. However by more clearly defining how the test should operate in practice, Curtis goes some way towards demystifying the metes and bounds of the section.

 

Assuming it owes a duty of care, Curtis says there is a range of reasonable responses an authority in the defendant’s position should provide in order to be deemed to have acted reasonably. Whether the response in the particular matter at hand is within that range is not simply an evaluative determination the judge conducts on the face of the decision itself. Instead, a closer inspection of the evidence should reflect one way or another, what a public authority having the same expertise and powers as the defendant, and acting reasonably, should have done in response to the risk which eventuated and caused the accident (see Basten JA at [277-279] with Bathurst CJ (at [6]) and Beazley P (at [224] agreeing).

 

The difference with a Wednesbury analysis is that Basten JA’s approach involves looking behind the decision making process, rather than simply looking at the reasonableness of the decision on its face (ie. the Wednesbury approach).

 

But how do we get to know who this reasonable public authority really is?

 

At trial, the plaintiff’s case included evidence from an ex-employee of Harden Shire Council who was a technical adviser within the Council at the time of the accident. He had not given a statement/affidavit and neither the plaintiff nor Council’s own expert made any reference to his evidence in their reports (or elsewhere). This makes the writer suspect his evidence took the Council by surprise.

 

The witness gave the opinion that a sign notifying a recommended speed limit or that the road was slippery should have been installed; especially since as he described it, the road was like ‘walking on marbles’. He was of course, in as good a position as anyone to give such an opinion.

 

So whilst he was not presented to the Court as an expert in the traditional fashion, the witness embodied the hypothetical ‘reasonable public authority’ and therefore greatly assisted the Appeal Court in finding that Council’s omission was outside the range of what could be considered reasonable for an authority in its position.

 

The plaintiff may have been fortunate that it had such a willing and persuasive witness at its disposal on this key issue. Litigation lawyers well know that this is often not the case.

 

Nevertheless, in the writer’s view, Basten JA’s findings dictate that future cases in which a 43A question arises will normally require opinion from a suitably qualified expert about what was a reasonable range of behaviours for an authority in the same position as the defendant. As his Honour stated at [279]:

 

…the court must view the matter through the eyes of a responsible public authority, having particular expertise and functions.

 

The Court’s decision also reinforces a critical distinction between the law’s treatment of the ‘reasonable person’ and ‘reasonable public authority’ in this area of torts.

 

PS – an interesting question around burden of proof also arises here. Once, it is established that what the authority did (or failed to do) truly involved the exercise of a “special statutory power”, s 43A says that there is no liability unless the action exceeds the elevated level of unreasonableness it prescribes. This is a matter for the plaintiff to prove even though the section raises matters that are much more exclusively within the knowledge of the authority.

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Filed under Civil, Civil Liability Act 43A