Respondent's Claim In Negligence

The primary judge rejected the respondent’s claim in negligence on grounds that due to the appellant’s mental illness, he did not breach the required duty of care. In reaching the decision to decline the respondent’s claim in negligence against the appellant, the primary judge observed and applied the principle which was applied in Cook v Cook.

The primary judge stated that:

Liability for negligence does not depend on just causation of the injury to the plaintiff, it depends on an issue of fault, and the reasoning which justifies a lower standard of care as the test of the existence of fault in the case of children also justifies a lower standard of care as the test for the existence of fault in the case of persons of unsound mind.

The primary judge quoted the above in Carrier v Bonham [2001] QCA 234, [2002] 1 QdR 474, p478 [6]. The primary judge also took into account the rule established in Bunyan v Jordan. The rule in that case being that to be liable in negligence, there must be an intention to inflict harm. The

In Latham CJ’s attempt to define the term ‘calculated,’ Latham CJ referred to Wilkinson V Downtown. .Latham CJ stated the conduct in that case was done in a manner that, ‘it was naturally to be expected that they might cause a very severe nervous shock’. McPherson JA shared the same view as Latham CJ and as a result, denied the appellant’s appeal against liability for the intentional infliction of harm.

It is McPherson JA’s view that, the appellant’s state of unsound mind did not lower the standard of care he owed to the respondent. McPherson JA believes that when the respondent excused himself out of the institution he was being treated in, he then entered the ‘normal’ society. This results in the appellant having to comply with ’the duty of exercising reasonable foresight and care for the safety of