Tom is driving his car while also texting his girlfriend. He did not notice Jane who was cycling on the road and crashed his car onto her. Jane was injured by the crash and suffered a broken leg. This resulted in her having to take time off work for a month in order to recover and lost wages amounting to $2,000. Jane was not wearing a helmet while she was cycling.

Jane is now considering bringing a claim against Tom based on the tort of negligence.

a) With reference to relevant caselaw, please set out the test applied by the Courts when examining whether a duty of care exists and discuss whether Tom owes a duty of care to Jane.

(6 marks)

(b) If Jane can establish liability against Tom, please identify what defence Tom may be able to use to reduce the amount of damages to be awarded against him.

(1 mark)

(c) Please advise Ron as to whether he would be successful in obtaining an award of damages against Tom for psychiatric damage as a secondary victim.