Striding rather than limping: Lessons from Canada on compensating negligently occasioned mental harm

Dr Tina Popa1

1RMIT University, Melbourne, Australia

 

Legal principles regarding recovery of compensation for pure psychiatric illness are a ‘sin of the past’, long subject to slow judicial development, arbitrary restrictions and criticism from scholars. In 1970 Windeyer J stated that law regarding psychiatric harm was ‘marching with medicine though in the rear and limping a little’. The law has made some progress in legitimising psychiatric injury since that apt statement, though some scholars would argue legal developments pertaining to mental harm are ‘still limping’. Recovery of compensation is particularly onerous in some Australian jurisdictions, such as Victoria, where claimants need to prove a ‘recognised psychiatric illness’ and satisfy significant injury thresholds. When combined, these restrictions can present as genuine obstacles for claimants seeking compensation in meritorious mental harm claims. The Canadian Supreme Court’s recent judgment in Saadati v Moorhead [2017] 1 SCR 543 (‘Saadati’) has taken a novel step by removing the requirement of ‘recognised psychiatric illness’ as a hurdle for recovery of compensation for negligently inflicted mental harm. This factor, combined with the absence of significant injury thresholds, makes Canada largely more progressive than many Australian states regarding mental harm compensation. This paper purports to undertake a comparison of the legal principles governing mental harm in Australia and Canada. Further, the paper draws on qualitative data with 24 senior tort lawyers which highlights existing challenges in compensating mental harm claims in Victoria. The author canvasses arguments in favour of removing the requirement for a ‘recognised psychiatric illness’ and significant injury thresholds, and discusses alternative approaches to compensating mental harm in Australia. Canada’s judicial developments offer a timely opportunity to revisit these legal principles to ensure Australian law is striding rather than limping in compensating mental harm.


Biography:

Tina Popa is a law lecturer at RMIT University, researching in medical law, tort law and alternative dispute resolution. Tina teaches Law of Torts in the Juris Doctor program. Tina’s doctoral research explored the challenges in litigation and mediation of medical negligence disputes (including mental harm claims) from the perspective of medical negligence lawyers. Tina is passionate about legal issues in medical negligence and mental harm compensation, regulation of human embryo research and health practitioner regulation.