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Freckelton, Ian --- "Editorial: Evolution in psychiatric injury law" [2017] PrecedentAULA 1; (2017) 138 Precedent 2


EVOLUTION IN PSYCHIATRIC INJURY LAW

By Ian Freckelton QC

Psychiatry injury compensability continues to evolve in a post-Ipp legal environment that is challenging for plaintiff lawyers, clinical assessors and treaters. While the extent to which the statutory changes inhibiting recovery is variable and unpredictable, the potential for creative causes of action remains. This collection of articles summarises recent developments and identifies the potential for innovative remedies for psychiatric injuries.

Reasonable foreseeability of psychiatric injury, as required in the employment context,[1] has been the subject of diverse decisions. Much depends upon the contents of the duty of care. The degree of the required likelihood of a recognised psychiatric injury arising from stress in the workplace, including from bullying, has been far from consistent. Worth identifies barriers in this regard.

In all jurisdictions other than Queensland and WA, the concern to recalibrate liability has seen the partial overturning of Annetts v Australian Stations Ptd Ltd/Tame v NSW.[2] The parameters of the ‘normal fortitude test’, re-imposed as a precondition of liability, are hard to identify, both conceptually and practically. A requirement for actual presence at the scene of a death, or that the person who is privy to an accident or death come within certain categories of relationship, has also re-emerged. As Schwartz points out, the High Court interpreted ‘presence’ sympathetically in Wicks v State Railway Authority of NSW,[3] but much more restrictively in King v Philcox.[4]

Tidswell helpfully catalogues a number of different considerations that appear to affect the quantum of damages, even where liability is conceded. Clear evidence from family members, friends and work colleagues about the contrast in the plaintiff’s functioning in different contexts before and after the tortious act is often vital. So, too, are objective assessments of the nature of the plaintiff’s injuries and expected treatment needs.

As Saunders notes, however, the likelihood that there will be multiple factors responsible for the particular symptomatology of a psychiatrically injured plaintiff requires assessment of whether the plaintiff would have experienced the same or similarly reduced functioning had the defendant’s negligence not taken place.

Opportunities for innovative actions remain but, as Dale points out in respect of revenge pornography, courts have thus far not been particularly receptive to them. Tortious actions for intentional infliction of psychological distress may provide a constructive option in this regard.[5] One example, noted by Carver (albeit rejected by Forrest J) is to be found in Homsi v Homsi,[6] where it was asserted that liability arose from a failure to exercise proper care towards others by imperilling them of psychiatric injury by the action of self-harm.

Psychiatric injuries pose both treatment and assessment challenges, as identified by Lewis, but the experience of perceived invalidation is counter-therapeutic for psychiatrically injured plaintiffs. For many, the litigation process is stressful and stigmatising and does not promote recovery. A challenge for treaters and litigation lawyers alike is to recognise and assess effectively traumatic brain injuries which, even when mild, may generate ongoing sequelae that are not easily predicted. A related question with important forensic ramifications is the extent to which PTSD can (and should) be regarded as a physical form of brain injury.[7]

Recoverability is pervaded by policy considerations, especially in statutory compensation contexts, as explained by Bradey. Establishing a wrong and damage suffered does not necessarily mean a successful cause of action, as Birchall et al point out in respect of immigration detention causing psychiatric injury. Fears of litigation avalanches, of inhibiting defendants from conducting themselves without undue fear of being sued, and worries about the potential for plaintiffs to embellish, if not fabricate, their claims have all influenced the development of the law. The continuing distrust for actions for other than physical injury means that practitioners must construct causes of action with an eye to the shifting lines being drawn by the courts. Using expert assessments effectively in what is a highly specialised but important area of personal injury practice is also essential.

Dr Ian Freckelton QC is a barrister at Crockett Chambers in Melbourne. He is also a Professorial Fellow in Law and Psychiatry at the University of Melbourne. EMAIL I.Freckellton@vicbar.com.au.


[1] Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44.

[2] [2002] HCA 35; (2002) 211 CLR 317.

[3] [2010] HCA 22; (2010) 241 CLR 60.

[4] [2015] HCA 19.

[5] See, for example, Wilkinson v Downton [1897] 2 QB 57; FA Trindade, ’The Intentional Infliction of Purely Mental Distress’ (1986) 6(2) Oxford J Legal Studies 219; see, though, Giller v Procopets [2008] VSCA 236; (2008) 24 VR 1.

[6] [2016] VSC 354. See I Freckelton, ‘Psychiatric Injuries from Self-Inflicted Physical Injury’ (2017) 24 Psychiatry, Psychology and Law (in press).

[7] See eg Casey v Pel-Air Aviation Pty Ltd [2015] NSWSC 566.


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