Through the introduction of the Civil Liability Act the NSW government’s extensive Tort Law reform in 2002 saw changes to the degree at which the courts might apply certain principles to cases of negligence. The CLA has improved to make more predictable the finding of a duty of care with these statutory guidelines. The moral and equitable extent to which this new regime is an improvement however is arguable, as the general principles of the Duty of Care have become somewhat restrictive and difficult for plaintiffs to succeed.
The law of Torts began prior to the era of Industrialisation, where duty for action was minimal due to the majority of claims being for only “intentional” wrongs. Following the Industrialization tasks and jobs become more distinct and citizens began to depend and become more inter-reliant on one another. As articulated by Abel ‘as the focus of tort law has shifted from intentional wrongs among intimates to unintentional injuries among strangers, its moral tone has changed as well’
The CLA with its more rigid control mechanisms to determining a duty of care has no improved to enact a much more probable approach towards bringing about actions in negligence. The specific preconditioned measures listed the CLA include those rejected by the High Court previously in Tame/Annetts , two of which are that a person of ‘normal fortitude’ could have foreseeably suffered the psychiatric harm and that the plaintiff must have had ‘direct perception’ of the incident at the scene or been a ‘close member of the family of the victim’ . In Castel’s case, having successfully passed one of the preconditions for recovery, it was found rather efficiently and predictably that TopClub should owe him a duty of care.
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... can further be seen in the case scenario where allowing Frankie’s appeal could potentially pose the risk of opening up the floodgates to mental harm claims by people that watched the incident on TV. Therefore irrespective of Frankie being Sophia’s brother, ruling against TopClub owing Frankie a duty of care proves the more economically efficient option.
As has been attempted by the CLA, the law evolves with respect to the progression of societal values and expectations. The restricting of litigiousness in society through the Civil Liabilities Act has worked to narrow the scope of claiming ‘nervous shock’ however on the contrary it also has the downside to lowering the incentive to prove a duty of care and receive compensation. Thus it remains debatable as to whether the CLA has improved to make more predictable and principled the finding a duty of care.
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