Through the introduction of the Civil Liability Act the NSW government’s extensive Tort Law reform in 2002 saw changes to the degree at which the courts might apply certain principles to cases of negligence. The CLA has improved to make more predictable the finding of a duty of care with these statutory guidelines. The moral and equitable extent to which this new regime is an improvement however is arguable, as the general principles of the Duty of Care have become somewhat restrictive and difficult for plaintiffs to succeed.
The law of Torts began prior to the era of Industrialisation, where duty for action was minimal due to the majority of claims being for only “intentional” wrongs. Following the Industrialization tasks and jobs become more distinct and citizens began to depend and become more inter-reliant on one another. As articulated by Abel ‘as the focus of tort law has shifted from intentional wrongs among intimates to unintentional injuries among strangers, its moral tone has changed as well’
The CLA with its more rigid control mechanisms to determining a duty of care has no improved to enact a much more probable approach towards bringing about actions in negligence. The specific preconditioned measures listed the CLA include those rejected by the High Court previously in Tame/Annetts , two of which are that a person of ‘normal fortitude’ could have foreseeably suffered the psychiatric harm and that the plaintiff must have had ‘direct perception’ of the incident at the scene or been a ‘close member of the family of the victim’ . In Castel’s case, having successfully passed one of the preconditions for recovery, it was found rather efficiently and predictably that TopClub should owe him a duty of care.
The requirement that the suffered psychiatric harm must have been a ‘recognized psychiatric illness’ is one precondition to recovery that may significantly alter the likelihood of an outcome. The distinction between ‘mere mental distress’ and ‘psychiatric illness’ however can cause confusion as Gummow and Kirby JJ describe in their judgment that it is one that ‘advances in the capacity of medicine objectively to distinguish the genuine from the spurious’. Had post-traumatic stress syndrome not been ‘recognized’ prior to Mandanarra’s case she may not have been able to claim damages. Although modern courts often refer to psychiatrists ‘opinions towards the definition of’ psychiatric illness’, there is often uncertainty as to how plaintiffs should proof the precise reasonableness of the defendants. .
Looking at an example from the scenario, when proving a duty of care, unless the plaintiff is a close member of the family, they would had to have been in proximity and have witnessed the killing, injury or put into peril of the victim. This has improved to narrow the...