4 ACTION ON THE CASE FOR WILFUL INJURY AND THE STATUTORY ACTION FOR

PSYCHIATRIC INJURY TO RELATIVES OF VICTIMS OF INTENTIONAL WRONGS

Action on the case for wilful injury
Element;
1. Intentional
2. Calculated to cause physical harm
3. The fact of causing it DAMAGE IS THE GIST
ACTION ON THE CASE FOR WILFUL INJURY
Bird v Holbrook (1828)
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D was sick of people trespassing through his garden so et up a gun on

a trip wire to shoot intruders. P chased pet into the garden and was
shot.
CASE FOR TRESPASS FAILED indirect injury
FINDING: notice ought to be given when there means of protection of
property is resorted

Wilkinson v Downton (1897)

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D told P that her husband was seriously injured as a practical joke,

suffered shock and serious physical illness.
UP HELD jury verdit that the defendant had wilfully done and act
calculated to cause physical harm to her witout more appears to me to
state a good cause of action
EFFECT ; conduct must be wilful and cause harm, reacklessness or
intention is irrelevant. It is an objective sense of causing harm.
TEST ; if a reasonable person could foresee harm to be inflicted. Ie
telling a woman her sister had been brutally murdered as a joke would
produce a similar reaction.

Janvier v Sweeney [1919]

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D were detectives who wanted to obtain from P some letters that hey
thorugh she had access to, they threatened her that they would tell the
authorities that she had been involved with a german spy during the
war cause phusical illness as a result of the threats
Threat to the police to get what you want is stronger case than the
classic Wilkinson. Ie without the intention to commit a wrongful act the
defendant merely intended to play a practical joke upon the plaintiff

Wainwright v Home Office [2004]

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Mother and son visit a jail and is strip searched without the consent
forms being finalised.
Both show mental distress
Limiting factor- intention to cause harm, recklessness in the harm
caused
Not an conventional case MORE like trespass - intended harm, unlike
negligence - foreseeability is hard to determine- make out recklessness

Claim failed

Giller v Procopets (2008)

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Revenge porn incident,

Aggravated, exemplary, delivery of the tapes

Relationship of confidence - falls short of recognised psychiatric injury
medically diagnosed
Breach of confidence def.
o Ehere you have confidential info and the other party experiences
loss once you break privy
It was the next legal step, should not be a high theashold for a
recognised psychiatirc injury - limited by reasonable forseeability
Claim is untenable
Obita: no law for emotional discomfort

Nationwide News Pty Ltd v Naidu (2007)

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Defendant works as security guard at NWN, under direct supervision of

the staff, testified that there was extensive bullying, indecent
exposure, general humiliation, excessive hours, personal tasks
unrelated to work injuries
Suffers from depression and post-trauma
Indirectly causing harm and including racial overtones
Hug amounts of awards are rewarded
Defines calculated [79] determines that subjective intention is not
reuired and it is sufficient certainty that recklessness can establish
intention
Repeated nature of the conduct over four years

STATUTORY ACTION FOR PSYCHIATRIC INJURY SUFFERED BY FAMILY

MEMBERS OF VICTIMS OF INTENIONAL WRONGS
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Law reform (miscellaneous provisions) Act 1944 (NSW) ss 3(1), 4(1), (5)

IF INTENTIONAL LOOK AT Law reform (miscellaneous provisions) 1944

IF NEGLIGENT LOOK AT CLA 3B excludes liability for some things
3 Injury arising from mental or nervous shock
(1) In any injury to the person caused after the commencement of this act
the plaintiff shall not be debarred from recovering damages merely
because the injury complained of arose wholly or in part from mental or
nervous shock.
S 4(1) the liability of any person in respect of injury caused after the
commencement of this act by and act, neglect or default by which any
other werson is killed, injured or put in perul shall extend to include
liability arising wholly or in part from metal or nervous shock sustained by
(a) A parent or the spuse of the person so killed, injured or put in
peril; or

(b) Any other member of the family of the person so killed, injured
or put in peril whre such person was killed, injured or put in peril
within the sight or hearing of such member of the family
S 4(5) in this section
Member of the family means spouse, parent, child, brother, sister,
half-brother, half-sister of the person in relation to whom the espression is
used.
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Civil liabilities Act 2000 (NSW) s 3B, Schedule 1 Clause 11

3B Civil liability excluded from Act

(1) The provisions of this Act do not apply to or in respect of civil liability
(and awards of damages in those proceedings) as follows:
(a) civil liability of a person in respect of an intentional act that is
done by the person with intent to cause injury or death or that is
sexual assault or other sexual misconduct committed by the personthe whole Act except:
(i) section 15B and section 18 (1) (in its application to
damages for any loss of the kind referred to in section
18 (1) (c)), and
(ii) Part 7 (Self-defence and recovery by criminals) in
respect of civil liability in respect of an intentional act
that is done with intent to cause injury or death, and
(iii) Part 2A (Special provisions for offenders in
custody),
(b) civil liability in proceedings of the kind referred to in section 11
(Claims for damages for dust diseases etc to be brought under this
Act) of the Dust Diseases Tribunal Act 1989 -the whole Act except
sections 15A and 15B and section 18 (1) (in its application to
damages for any loss of the kind referred to in section 18 (1) (c)),
(c) civil liability relating to an award of personal injury
damages (within the meaning of Part 2) where the injury or death
concerned resulted from smoking or other use of tobacco productsthe whole Act except section 15B and section 18 (1) (in its
application to damages for any loss of the kind referred to in section
18 (1) (c)),
(d) civil liability relating to an award to which Part 6 of the Motor
Accidents Act 1988 applies-the whole Act except the provisions that
subsection (2) provides apply to motor accidents,
(e) civil liability relating to an award to which Chapter 5 of the Motor
Accidents Compensation Act 1999 applies (including an award to
and in respect of which that Chapter applies pursuant to section
121 (Application of common law damages for motor accidents to
railway and other public transport accidents) of
the Transport Administration Act 1988 )-the whole Act except the
provisions that subsection (2) provides apply to motor accidents,

(f) civil liability relating to an award to which Division 3 of Part 5 of

the Workers Compensation Act 1987 applies-the whole Act,
(g) civil liability for compensation under the Workers Compensation
Act 1987 , the Workers Compensation (Bush Fire, Emergency and
Rescue Services) Act 1987 , the Workers Compensation
(Dust Diseases) Act 1942 or the Anti-Discrimination Act 1977 or a
benefit payable under the Sporting Injuries Insurance Act 1978 -the
whole Act,
(h) civil liability for financial assistance for economic loss under
the Victims Rights and Support Act 2013 -the whole Act.
11 Law Reform (Miscellaneous Provisions) Act 1944
Part 3 of the Law Reform (Miscellaneous Provisions) Act 1944 continues to apply
despite its repeal to and in respect of civil liability that is excluded from the
operation of Part 3 of this Act by section 3B.