Complex Categories of Tort Law Report

TORTS LAW

One of the complex categories of Tort Law is the determination of the tortious liability for
causing foreseeable mental harm to others. The said determination is contained in the tort of
negligence. These litigations are known as the litigation for pure psychiatric injury or the
mental harm litigation. The rules governing the issue state that “A person (the defendant)
does not owe another (the plaintiff) a duty to take care not to cause the plaintiff pure mental
harm unless the defendant ought to have foreseen that a person of normal fortitude might, in
the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken.”
There are several elements to be proved in this regard for the successful claim to be
established. The following work is aimed evaluating the defendant’s responsibility towards
the plaintiff in the event of the causation of the harm in the absence of the reasonable care
being taken. The statement would be evaluated in context of the claim of damages as
prescribed in the regulations of legislations and the common law.
The common law governs the claims of negligence in Australia under which a distinction has
been drawn between psychiatric injury and physical injury in relation to compensation. It is
imperative to note that in the claims for pure psychiatric injury because of negligence, the
establishment of the standard elements of negligence is essential1. The four standard elements
in the negligence are stated as follows. Firstly, there must be a duty of care on the part of the
defendant to take steps for the reduction of the risk of such injury being suffered. Secondly,
there must be a breach of that duty of care. Third and fourth elements are the direct causation
of harm to plaintiff due to the said breach and reasonable foreseeability of the loss that is not
too remote2.
Owing to the complexities in the mental harm litigation, following points are noteworthy. It
has been widely accepted fact that some categories of individuals are more prone to the
psychiatric vulnerability owing to the reasons of particular position. As a result, the said
categories of individuals deserve the eligibility for compensation for mental harm in the
events of an injury caused to the close relative or killing owing to the reasons of the negligent
conduct. The case of Jaensch v Coffey3 is important to note in this regard. Between the year
1984 and the year 2002, the Australian Common Law in relation to the psychiatric injury was
governed by the decision in the above-mentioned case law. It was held in the case that where
there is an intimate relationship shared between the person who suffers nervous shock and the
1 Ian Freckelton, "Duty To Avoid Injury To Oneself And Thereby Psychiatric Injury To Others" (2017) 24(6)
Psychiatry, Psychology and Law.
2 Amanda Stickley, Australian Torts Law (LexisNexis Butterworths, 4th ed, 2016).
3 Jaensch v Coffey (1984) 155 CLR 549

one who is killed or physically injured; the requisite proximity is established and strong
defence is available for the recovery of damages4. Thus, in the said case, the court had
allowed the for the pure mental harm to a woman who was not present at the scene, but
whose spouse was severely injured in an accident of vehicle collision. In the test of causation
earlier it was necessary to establish that psychiatric illness is induced by a single shock. In
addition to the above, there existed a prerequisite of “normal fortitude” where the plaintiff
was required to establish that the defendant’s negligent act had the potential to cause pure
psychiatric injury to a person of normal fortitude. By the decision in the Jaensch v Coffey, the
scope of the defendant’s liability was expanded to include the claimants who were not present
at the scene.
One of yet pivotal case laws in this regard is of Tame v New South Wales5 where the law
related to the mental harm litigation was developed effectively. In the said case the arbitrary
tests which were earlier applicable to the psychiatric injury were replaced by the simple test
of reasonable foreseeability. The courts pronounced that the prerequisites were arbitrary and
were based on fear rather than the principle. The three substantive rules namely the direct
perception rule, sudden shock rule and the normal fortitude rule were reconsidered and re-
established as follows. It was held by the court that the fundamental test for the imposition of
the duty of care should be the reasonable foreseeability of risk. In addition, it was stated that
the principle of normal fortitude is a relevant consideration but cannot be regarded as the
independent test or a precondition of a liability in the infliction of the mental harm due to
negligence. This was followed by the removing of the sudden shock and the direct perception
from the category of the pre requisites in the recovery of the damages. Because of the above
case, the six jurisdictions accepted the reforms of mentioned in the case law pronouncement.
In yet another case of Annetts v Australian Stations Pty Ltd6 a young boy was sent to the
work as a caretaker in a remote location even after the parents of the boy had been assured of
the safety of their son in the harsh working environment; from the employers Australian
Stations Pty Ltd in Western Australia. While the parents were informed of their missing son
over phone, eventually it was discovered that the boy was dead. In the said case, the
psychiatric injuries of the parents had emerged over a time and not in the form of an instant
shock. The majority of the high courts upheld the view that psychiatric injury should not be
4 Paul Latimer, Australian Business Law (Oxford University Press, 35th ed, 2016).
5 Tame v New South Wales (2002) 211 CLR 317
6 Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317