I introduction

B Psychiatric Injury
In most cases of child sexual abuse, the plaintiff’s damage consists of psychiatric harm. Survivors of institutional child sexual abuse may wish to claim against an institution in the tort of negligence. In all Australian jurisdictions¹⁶¹ except Queensland and the Northern Territory, civil liability legislation governs claims in respect of negligently inflicted psychiatric injury.¹⁶² The provisions have some application to all cases of psychiatric harm, whether pure mental harm or mental harm that is consequent on physical injury. While the legislation is not uniform across jurisdictions, generally the effect is to restrict recovery for pure mental harm to recognised psychiatric illness¹⁶³ and to limit the duty of care not to cause mental harm to instances where it was foreseeable that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken.¹⁶⁴ The legislation is not radically different from the Australian common law concerning the duty of care not to cause mental harm,¹⁶⁵ but it must necessarily include some subtle differences which will inevitably depend on future judicial interpretation of the provisions.¹⁶⁶
In the case of consequential mental harm it would be necessary under the legislation for the plaintiff to establish a duty of care in respect of the mental harm independently of any duty of care in respect of the physical injury on which the mental injury is consequent: a separate duty of care in respect of the consequential mental harm.¹⁶⁷ This is not the case at common law where only one duty of care in respect of the physical injury need be established. At common law the chief issues for determination in relation to a consequential mental injury would be questions of causation and remoteness.¹⁶⁸
Differential treatment of Australian plaintiffs could be avoided by ensuring that state and territory civil liability legislation does not apply to claims in respect of psychological injury caused by institutional child sexual abuse.