Psychiatric injury: Charting the limits of liability

This was the year that saw the landmark High Court decision in 'Tame v New South Wales'; 'Annetts v Australian Stations Pty Ltd' (2002) 211 CLR 317, rejecting limitations such as direct perception and sudden shock, and restating liability to secondary victims in terms of reasonable foreseeability, supported by the nature of the relationship between the parties. This approach was endorsed and further explored in the Court's decision in 'Gifford v Strang Patrick Stevedoring Pty Ltd' (2003) 214 CLR 269, which followed soon afterwards. 2002 was also the beginning of the Civil Liability Act era, which saw six jurisdictions enact legislation codifying liability for what was now called 'mental harm', in some cases imposing narrower limitations than those recently endorsed at common law. There have been two High Court decisions since Gifford, both of which interpret provisions of the Civil Liability Acts - 'Wicks v State Rail Authority (NSW)' (2010) 241 CLR 60 on ss30 and 32 of the Civil Liability Act 2002 (NSW) and, more recently, 'King v Philcox' [2015] HCA 19; (2015) 255 CLR 304 on s53(1) of the Civil Liability Act 1936 (SA). Insofar as they simply explore the meaning of the statutory provisions, such decisions are of limited value for other jurisdictions, since the legislation differs so much from one state to another. But what they have to say about the common law is of much more general interest, and it is in this respect that King, particularly the extended consideration of the common law by Nettle J, deserves our attention.