Is 'Nervous Shock' Still a Feminist Issue? The Duty of Care and Psychiatric Injury in Australia

Abstract

The traditional approach to duty in nervous shock cases required more hurdles to be met than in cases of ordinary physical injury. The feminist critique of these cases demonstrated that these hurdles were created by gendered stereotypes and patriarchal reasoning. The High Court’s changed requirements in Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 raise the question whether the feminist critique has been rendered obsolete. The article considers some of the previous feminist literature and a quantitative analysis of nervous shock cases in order to examine this question. While women continue to be the majority of claimants in this area, the article emphasises that this is less significant than the fact that the way psychiatric harm is regarded is affected by a gendered way of thinking which permeates our society. Noting that the changes to the requirements in Tame; Annetts and other recent cases still do not put psychiatric harm on exactly the same footing as other personal injury cases, and that the legislative changes created by the various Civil Liability Acts emphasise this and in many cases revert to the previous approach, the authors conclude that the feminist critique still has much to offer this area of law.

Keywords: Torts, Australia