Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3000 ..
MR STEFANIAK (11.15): I move amendment No 1 circulated in my name [see schedule 1, at page 3088].
One of the things I quite like about this bill is the codification of some of the actual principles. I do think it is important to actually get them right. In looking through the bill, I saw what could well be an anomaly which I think could be tightened up and made more effective. Under "Mental harm-duty of care", on page 6, clause 30A reads:
(1) a person (the defendant ) does not owe a duty to another person (the plaintiff ) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant's position would have foreseen that a person of normal fortitude in the plaintiff's position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
The area of mental harm is relatively new in many ways and is still fraught with difficulties, and the term "might"does cause me some problems, because the person-is the defendant who's being sued has to satisfy a test that they have to have foreseen that a person of normal fortitude-and that might be difficult in itself-in the plaintiff's position is the person bringing the action might have suffered a recognised psychiatric illness. That's a very different test. The word "might"is a very different word to what is normally the word in these types of situations.
If people look at "Duty of care"on page 8, "Precautions against risk-general principles", 31F (1) (c), the more normal test is used. It states:
in the circumstances, a reasonable person in the person's position would have taken those precautions.
In (2), the word "would"appears again. I would think that that test, which is to me a much more normal, regular test in terms of whether people would or should have done certain things, should apply on page 6 in clause 30A (1). I think "might"is probably the inappropriate word there. I think "would"would be more consistent with the rest of the act and would be, in many ways, somewhat tighter in this difficult area.
We're all aware of persons who claim all sorts of things and say they've been dramatically affected by something, and that turns out to be arrant nonsense at the end of the day. Probably one of the problems here has been that some people might have got away with damages they weren't realistically and reasonably entitled to at the end of the day. "Might", I think, might lead to some of those situations more than the word "would"; the word "would"is more consistent, and that is the reason behind that particular amendment, which I commend to the Assembly.
MS TUCKER (11.19): The Greens will be opposing this amendment. I must say that I don't know how anyone could foresee that a person of normal fortitude would suffer a recognised psychiatric illness if reasonable care were not taken; it just doesn't make sense. Mental illness isn't like that. You could argue that it might occur, as the legislation presently allows, or even that it would be likely to occur, if you wanted to protect defendants further.