JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ZAGHLOUL -v- BAYLY [2021] WASCA 125
CORAM: MURPHY JA
MITCHELL JA
VAUGHAN JA
HEARD: 21 JUNE 2021
DELIVERED : 19 JULY 2021
FILE NO/S: CACV 70 of 2020
BETWEEN: HASSAN ZAGHLOUL
Appellant
AND
DAVID JOHN BAYLY
First Respondent
BRADLEY BAYLY HOLDINGS PTY LTD
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BRADDOCK DCJ
File Number : CIV 2756 of 2017
Catchwords:
Practice and procedure - Defendant's application for summary dismissal - Claims of misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law and negligence - Summary judgment entered for respondents by primary judge - Whether primary judge erred in failing to grant appellant leave to file a further amended statement of claim - Whether primary judge erred in finding that s 5S of the Civil Liability Act 2002 (WA) provided complete defence to appellant's negligence claim - Extent to which s 5S applies where defendant knows plaintiff is a person with pre‑existing psychiatric illness - Whether a question of law capable of determination on an application for summary judgment - Turns on own facts
Legislation:
Civil Liability Act 2002 (WA) s 5S
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | K R Lendich SC |
| Second Respondent | : | K R Lendich SC |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Popperwell & Co |
| Second Respondent | : | Popperwell & Co |
Case(s) referred to in decision(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) CLR 256
Casella v Hewitt [2008] WASCA 13; 36 WAR 1
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Forsayth NL v Northern Gold NL (Unreported, FCt SCt of WA, Library No 940012, 20 January 1994)
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549
King v Philcox [2015] HCA 19; (2015) 255 CLR 304
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
Monadelphous KT Pty Ltd v Transalta Energy (Australia) Pty Ltd [2017] WASCA 176
Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Nyoni v Patterson [2012] WASCA 171
Optus Administration Pty Ltd v Wright [2017] NSWCA 21; (2017) 94 NSWLR 229
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
Smith v McCusker [2005] WASCA 226
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
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- AGLC
- Zaghloul v Bayly [2021] WASCA 125
- Case
- [2021] WASCA 125
- Decision Date
CaseChat Overview and Summary
The primary legal issues that the court had to address were the interpretation of the term 'normal fortitude' as it appears in the statutory provision and its applicability in determining whether a duty of care existed. The court was tasked with examining whether the concept of 'normal fortitude' was a legal standard or a scientific one, and how it should be applied in the context of negligence claims involving mental harm.
The court held that the term 'normal fortitude' referred to mental or emotional resilience and was not to be conflated with a scientific diagnosis. It was noted that the concept of 'normal fortitude' had been examined in the general law of negligence concerning psychiatric illness. The court distinguished between individuals of 'normal emotional fibre' and those who were 'abnormally susceptible' or 'unduly sensitive'. The court emphasised that the concept of 'normal fortitude' was a legal one, with an evaluative element, designed to allocate legal responsibility rather than diagnose mental illness. The court concluded that the statutory provision required the defendant to foresee that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken, but it did not necessitate that the plaintiff be a person of normal fortitude to be owed a duty of care.
The court found that the appellant's arguments concerning ground 2 were largely unfounded given the statutory terms and their effect. The court's decision underscored the legal nature of the 'normal fortitude' concept and its role in determining the existence of a duty of care in cases involving mental harm.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The parties did not direct the court to any authorities considering the meaning of the term 'normal fortitude'. The 'fortitude' with which the statutory provision is concerned is mental or emotional fortitude.[97] The concept of 'normal fortitude' is one which has been examined in the general law of negligence as it applies to psychiatric illness.[98] A distinction is drawn between a person of 'normal emotional fibre' and a person 'sensitive, susceptible and more easily disturbed emotionally and mentally',[99] ie the 'abnormally susceptible'[100] or the 'unduly sensitive or abnormally nervous'.[101][97] Optus Administration Pty Ltd v Wright [59].[98] For example, see generally Tame v New South Wales.[99] Tame v New South Wales [94] (referring to Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, 405 - 406).[100] Tame v New South Wales [112].[101] Tame v New South Wales [201]. Part 1B was one of the reforms introduced following the Final Report of the Review of the Law of Negligence - September 2002 (more commonly referred to as the 'Ipp Report' after the Hon. D A Ipp who was the chairperson of the panel responsible for the preparation of the report).[102] The section of the Ipp Report dealing with mental harm states among other things that:[P]eople vary in terms of psychological vulnerability … as a general rule, it is unreasonable to expect others to take greater precautions than would be necessary to protect the normally vulnerable (that is, people of 'normal fortitude'). It is essential to understand that while the incidence of various mental illnesses in the general population may be relevant to the concept of 'normal fortitude', this concept is ultimately a legal, not a scientific, one. It is no more scientific than the concept of the reasonable person. It has a significant evaluative element, and its function is to allocate legal responsibility for mental harm rather than to assist in the diagnosis of mental illness for clinical or epidemiological purposes.[103][102] Section 5S of the Civil Liability Act reflecting Recommendation 34 of the Ipp Report.[103] Ipp Report [9.15]. A person of 'normal fortitude' is one who has a normal vulnerability or susceptibility to impairment of his or her mental condition. It is to be understood by reference to the community's general knowledge of the effect of stressors on ordinary persons. It is not a precondition to the existence of a duty of care not to cause mental harm that the plaintiff be a person of normal fortitude. Section 5S(1) only requires that the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. The test does not require the plaintiff to be a person of normal fortitude in order to be owed a duty of care. Having regard to the terms and effect of s 5S of the Civil Liability Act, it is apparent that much of the appellant's submissions in support of ground 2 are misplaced.