Term Paper on "Australia's Tort Law"

Term Paper 7 pages (2554 words) Sources: 10

[EXCERPT] . . . .

The two lawsuits analyzed elements of Wright J's basic principle but don't aim to alter or expand it. Nevertheless, Maxwell P. In Giller v Procopets introduced a powerful discussion for reformulating Wilkinson v Downton as being a cause of action relating to intentional infliction and involves psychiatric harm (Handford, 2012).

This was a case wherein the accused secretly videoed himself and also his de facto companion experiencing sexual activities, and following the relationship breakdown demonstrated or tried to present the video to her family and friends. Maxwell P. recommended that not just the legislation but also psychiatry have developed greatly ever since 1897;117 DSM-IV, as an advocate of the existing information, demonstrated that there was no evidently outlined boundaries isolating "recognized psychiatric disorder" from various other types of mental dysfunctions, so this brought about the decision that the prerequisite to demonstrate bodily injury as a signifier of mental damage was anachronistic and also ought to be completely discarded. Rather, courts ought to concentrate over the psychiatric harm's nature and degree endured by the complainant (Handford, 2012).

This could eliminate the most difficult facet of Wilkinson v Downton, the demand to depend on an assigned intention to cause bodily damage, because it was apparent that Downton didn't have a genuine intention to cause harm, beyond, carrying out a practical joke; and so this might overcome one of the many issues, which had bothered the New South Wales (NSW) Court of Appeal in a case of Nationwide News v Naidu. Maxwell P. additionally referenced the improvement of the tort of intentional harm of psychiatric distress within Australia starting from the 1930s; he recommended that this court case would most likely fit easily inside of the outrageous-and-extreme-conduct prerequisite related to the Restatement of Torts, although he stated that he didn't view the demand for such a restriction. No matter how appealing Maxwell P's opinion was, it must be mentioned that his views are in minority (Handford, 2012).

Ashley JA stated that this Victorian Court of Appeal had not been free to decide that anything significantly less than accepted mental injury was adequate. Neave JA reviewed the problem, and in contrast to Ashley JA, concurred with Maxwell P. decision that no Australian judgment favorably precluded the growth of the tort to protect circumstances of psychiatric stress instead of bodily or mental damage. Nevertheless, she determined that such extension might produce incongruencies, due to the restrictions on harms in negligence lawsuits enforced from the Civil Liability statutory, and that in cases where intentional infliction of psychiatric distress was identified as a tort, this seemed to be a job for the law making body (Handford, 2012).

Even though the Court of Appeal was hesitant to effectively figure out whether or not Australian law ought to identify a tort of intentional infliction of psychiatric harm in a case of Giller v Procopets, evidently demonstrates that this law within this area continues to be unsettled nationwide. There was an indication in this regard that the legal courts might favor leaving the creation of this tort law to the Australian Parliament. As Neave JA asserts, she didn't find it crucial for the Australian High Courts to determine whether or not there was a tort of intentional infliction of psychiatric distress. Additionally, she likewise recognized simultaneously the benefits and drawbacks of this tort and ultimately remained unconvinced that this common law ought to plug the space that Maxwell P. disputes. Certainly, she determined that it was an issue for the Australian Parliament to determine that regard. At the same time, Ashley JA as part of his ruling stated that it had not been amenable for the Court of Appeal to create this type of cause of action (Handford, 2012).

On balance, it was apparent that the vast majority of the appellate court opposed the establishment of tort of intentional infliction of mental harm. In my view, Neave's ruling over the position of the Australian Law making body was appropriate. The Australian Parliament ought to make room for increased protection of intentional infliction of psychiatric injury particularly.

Conclusion

Whilst the ruling in a case of Giller v Procopets appreciates the applicable extension of legal liability within Wilkinson v Downton, it ultimately does very little to put together the common law within the framework of intentional infliction of psychiatric harm, simply because all 3 judges have put forward distinctive rulings on the way the law within this area ought to established. Nevertheless, the appellate court's verdict has offered space for the part of Australian Parliament to succeed in the foreseeable future, when it comes to a tort of intentional infliction of psychiatric harm acknowledgement.

To conclude, however, it is noteworthy that the intentional infliction of psychiatric harm has demonstrated to be especially productive in both harassment and employment proceedings. The Australian courts are gradually moving towards a point wherein they provide redress to vulnerable victims who suffer mental distress because of the nature of their relationship with the accused. Redress is not limited to giving damages only; injunction is also used to ensure that the victim does not undergo nay more mental harm.

References

Aplin, Tanya, 'The Future of Breach of Confidence and the Protection of Privacy' (2007) 7 Oxford University Commonwealth Law Journal 137.

Cane, Peter. And Trindade, Francis., and Lunney, Mark, The Law of Torts in Australia (Oxford University Press Australia & New Zealand, 2012, 25-26).

Doyle, Carolyn, and Bagaric, Mirko, Privacy Law in Australia (The Federation Press, 2005, 68).

Handford, Peter, Wilkinson v Downton: Pathways to the future?' (2012) 20 Tort Law Review 145 at 146.

Harpwood, Vivienne, Modern Tort Law (Routledge-Cavendish, 2008, 313-314).

Murphy, John, and Witting, Christian, Street on Torts (Oxford University Press, 2012, 157-159).

Simmons, Kenneth, The Crime/Tort Distinction: Legal Doctrine And Normative Perspectives. (2007), 17 Widener Law Review 719.

Stewart, Pamela, and Stuhmcke, Anita, Australian Principles of Tort Law (Federation Press, 2009, 166-168).

Witzleb, Normann. Giller V Procopets: Australia's Privacy Protection Shows Signs of Improvement. (2009) 17 Torts Law Journal 121.

Witting, Christian, Tort Liability for intended mental harm, (1998) 21 UNSW Law Journal 1.

Cases used as references

Annetts v Australian Stations Pty Ltd. (2002) 211 CLR 317

Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1; (1936) 36 SR (NSW) 350

Carrier v Bonham (2001) QCA 234; (2002) 1 Qd R.… READ MORE

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