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Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3001 ..

MS TUCKER (continuing):

But to argue that there is no duty of care unless it could be foreseen that a person would suffer a psychiatric illness is ludicrous and callous in the extreme. It is designed essentially to rule out just about all responsibility for mental harm for anyone who is already known by the defendant to be mentally fragile before the event. This is not acceptable, and I can't support it.

MS DUNDAS (11.20): Mr Speaker, the Democrats cannot support this amendment. The amendment moved by Mr Stefaniak, if successful, would probably deny compensation to all people who suffer mental harm as a result of witnessing an accident. Some people are severely affected when they witness a shocking accident, presumably because they have a slight predisposition to mental illness. Some people who are closely connected with an injured party also suffer serious mental harm triggered by a harmful event.

This area of Australian tort law emerged in 1984 with the case Jaensch v Coffey and is now well established through medical evidence presented in numerous court cases. While judges have been satisfied that some people who witness accidents suffer a recognised psychiatric illness as a result, it is certainly not most people who are also severely affected in these situations. The correct test is clearly that a normal person might suffer a psychiatric illness in the circumstances, not that a person of normal fortitude would suffer such an illness.

If this amendment is successful, it would deny compensation to people who are genuinely and seriously affected by the wrongdoing of another person. This is not in the interests of justice.

MR STANHOPE (Chief Minister, Attorney-General, Minister for Environment and Minister for Community Affairs) (11.21): Mr Speaker, similarly the government won't support this amendment, for the reasons outlined by both Ms Tucker and Ms Dundas. We believe, as do the Greens and the Democrats, that the proposal that Mr Stefaniak put simply establishes far too high a threshold that would require that mental harm not eventuate essentially unless there were 100 per cent vulnerability before liability would arise. For the reasons outlined by both the Greens and the Democrats, the government similarly won't support the amendment.

Amendment negatived.

Clause 10 agreed to.

Clause 11 agreed to.

Clause 12.

MR STANHOPE (Chief Minister, Attorney-General, Minister for Environment and Minister for Community Affairs) (11.22): I move amendment No 1 circulated in my name [see schedule 2 at page 3089]. I do have an explanatory statement to the amendments, which has been circulated.

Mr Speaker, amendment No 1 amends clause 12 of the bill, which proposes a new section 31H (1) (a). The amendment places the phrase "factual causation"in brackets

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