Div 1Duty of care

Division 1—Duty of care 31—Standard of care (1) For determining whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose. (2) The reasonable person in the defendant's position will be taken to be sober unless— (a) the defendant was intoxicated; and (b) the intoxication was wholly attributable to the use of drugs in accordance with the prescription or instructions of a medical practitioner; and (c) the defendant was complying with the instructions and recommendations of the medical practitioner and the manufacturer of the drugs as to what he or she should do, or avoid doing, while under the influence of the drugs, and, in that event, the reasonable person will be taken to be intoxicated to the same extent as the defendant. 32—Precautions against risk (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. 33—Mental harm—duty of care (1) A person (the defendant) does not owe a duty to another person (the plaintiff ) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant's position would have foreseen that a person of normal fortitude in the plaintiff's position might, in the circumstances of the case, suffer a psychiatric illness. (2) For the purposes of this section— (a) in a case of pure mental harm, the circumstances of the case to which the court is to have regard include the following: (i) whether or not the mental harm was suffered as the result of a sudden shock; (ii) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril; (iii) the nature of the relationship between the plaintiff and any person killed, injured or put in peril; (iv) whether or not there was a pre-existing relationship between the plaintiff and the defendant; (b) in a case of consequential mental harm, the circumstances of the case include the nature of the bodily injury out of which the mental harm arose. (3) This section does not affect the duty of care of a person (the defendant) to another (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude.