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Defendants' liability for pure mental harm to third parties in Australia : still a work in progress

journal contribution
posted on 01.10.2009, 00:00 authored by Danuta MendelsonDanuta Mendelson
In Australia, both common and statutory law allows compensation for negligently occasioned recognised psychiatric injury, but distinguishes between pure mental harm and consequential mental harm. This column briefly discusses the concept of pure "mental harm" and the major Australian cases relating to defendants' liability to third parties for causing them pure mental harm (Jaensch v Coffey (1984) 155 CLR 549 [PDF]; Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 [PDF]; Sullivan v Moody (2001) 207 CLR 562 [PDF]; and Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 [PDF]). The analysis focuses on judicial approaches to determining liability in these cases, especially causation. Lack of guiding principles and precise tests for attribution of liability are illustrated by Kemp v Lyell McEwin Health Service (2006) 96 SASR 192 [PDF]. This case is analysed first in the context of common law, and then in the light of the reform legislation contained in the Civil Liability Act 1936 (SA) and similar provisions in other jurisdictions.

History

Journal

Journal of law and medicine

Volume

17

Issue

2

Pagination

165 - 177

Publisher

Lawbook Co.

Location

North Ryde, N.S.W.

ISSN

1320-159X

Language

eng

Publication classification

C1 Refereed article in a scholarly journal

Copyright notice

2009, Thomson Reuters

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