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Case of Giller versus Procopets tries to look into the Australian law

The case of Giller versus Procopets tries to look into the Australian law of Torts and how the Australian legal system is mechanized to deal with various torts an example being the intentional infliction of emotional distress. Judgments were entered by three judges being Maxwell p, Ashley and Neavejja. The paper basically aims to look at the different judgments entered and their ratio decidendi not forgetting the obiter dictum.

a. facts

The parties in this case once cohabited in the same apartment for they were in a defactor relationship. Together they had twins other than Giller coming into the relationship with a daughter. They were happy for sometime but somewhere down the line the girlfriend who is the plaintiff and appellant in this case was being subjected to assault. The assault was recorded to be at least five times. The couple later separated due to constant fighting however the sexual relationship between them still continued. The boyfriend respondent would make films and videos of their intimacy sessions without the knowledge and consent of the appellant. It is however to be noted that the appellant came to know of this and yet continued to be intimate with the respondent. They then made a few films together. The relationship became sour and the two of them separated completely. The respondent then threatened the appellant that he would reveal the films and videos to her friends and relatives with the intention of causing her harm and public embarrassment. He went ahead and presented some of the tapes to family and friends. Giller then filed a suit against the defendant in court seeking damages for the intentional infliction of emotional distress.

b. history of litigation.

This case had been presented to a trial court and later the plaintiff appealed to the court of appeal. This is because her plea for compensation had been rejected. However three judges of the court of appeal presided over the case and gave their decisions.

When looking into the ratio decidendi of the judgments given, we will try to scrutinize the decisions given and the reasons for such decisions. The other main objective is to verify whether the tort of intentional infliction of emotional distress has been provided for in the Australian law of tort.

Obiter on the other hand looks into statements which don't fully relate with the case but affect the decision or the outcome of the said case.

Judgment of Maxwell p,

Maxwell has stated that he agrees with some of the views of the other two judges but he is of the view that the appeal should be upheld. He has gone ahead to give his reasons and they will be outlined below.

He was of the view that even though the tort of intentional infliction of emotional distress had not been adequately provided for in the Australian law of tort, leading to the decision of the trials judge whereby he dismissed such a claim. Maxwell p, j was of the view that such an act could possibly cause emotional distress in that particular case. He also noted that the duty of the law of tort was to compensate parties who had suffered injury as a result of a tort committed. He therefore deemed it fit for the appellant to be compensated since she had suffered injury in the form of humiliation and distress.

He has also referred to the case of Wilkinson vs. Downton whereby the court observed that where a person did or performed an act intentionally to hurt or cause harm to another, then the other had a right to bring an action under law against the tortfeaser.

The law should take into consideration the intention of the wrongdoer to hurt the other and the effect that wrong, injury or tort has on the complainant. If is stated that the duty of the law and mainly the law of tort is to compensate a person who has suffered injury due to the act of the other, then it is the duty of the law to compensate that person.

We therefore observe that Maxwell j is of the view that if someone did an act knowingly with the intention of causing harm to another then there is no reason why he should not be held liable even if the law does not adequately provide for that. He is also of the view that in such a case of intentional infliction of mental distress one does not have to prove physical mental distress but a mere mental condition will suffice so long as he can prove he has been subjected to such a condition. This was so because in the past there was no medical procedure of proving mental distress in the courts.

However the House of Lords in Wallright have acknowledged that intention to cause harm must first of all be proved before the court can be able to make a decision. If the act causes injury but is seen not to be intentional as observed in janvier vs. Sweeney then the court might be lenient to the wrongdoer. In Wilkinson vs. Downton however, mental distress had to be proved through physical injuries and as a result if physical injury is present then the wrongdoer will be liable for any injury caused to the complainant.

Even though a line or a difference can not be easily drawn between a mental condition and physical mental damage, courts have chosen to rely on the aspect of intention to prosecute and decide a case. As stated earlier there is no easy mode of separating the two. We can also say that he is in agreement with the reasoning of Dollin J that even though a person's act does not seem to indicate any physical harm to the other, compensation is important to prevent any physical harm that might be caused to a person in the long run.


It was stated that negligently inflicted injury to a person can be construed as trespass to the person in some circumstances. Even though this does not directly affect the case at hand as it was intentional, it indicates that where the act was not intentional, compensation might still be given with regards to the circumstances of the particular case.

Judgment of Ashley J A

Ashley j is of the view that damages of emotional distress are not available in as far as the law is concerned. She also notes that even though the complainant had taken a court order against the defendant barring him from coming a distance of 350metres close to her and her children, the complainant still continued her sexual relationship with the defendant. It goes to prove that the complainant was not in fear of the defendant due to the continued sexual relationship and the fact that she was comfortable with the defendant taking videos and films of their intimate sessions, then the publication of such films would not be of harm to her. The appellant can also be compensated under the law of equity as this will fully compensate the complainant and is provided for under law. This is provided for in s62 [3] of the Supreme Court act 1958. However such kind of compensation depends on circumstances of the case and has not been fully accepted by the Australian courts. Other than that assault by the respondent affected her mental state negatively and that her plea could have been more effective if brought on a ground of breach of confidence.

It is also observed that the plaintiff had no time of filing for an injunction against the defendant as the defendant had already made enough copies and films. As a result she should be compensated for the damage caused to her. However with regards to the failure of the respondent's plea of damages at the trial court, Ashley J A says it is because the appellant did not seek an injunction first [s2 of Lord Cairn's act]

Ashley J has observed that another mode which can be used to compensate the plaintiff on grounds of distress is defamation. He is of the view that defamation lowers one in the eyes of the right thinking members of society and can as a result cause mental distress to a person. Compensation under defamation is provided for under the law and if one can prove that he has been lowered in people's eyes then he has a right to be compensated. In the present case of Giller vs. Procopets, it is clearly indicated that the publication of such videos to the family members has humiliated her and is prima farcie defamatory. According to Ashley j, notice of the mode in which harm was inflicted is important. Its impact on the appellant's feelings is also important in determining the damages accrued to the complainant.

When taking into consideration the views of the three judges we find that Australian legal system does not adequately provide for compensation of complainants suffering mental distress and seeking compensation on such grounds. They however observe that a principal catering for such cases might be set and that in some instances the judge can give his decision in accordance with the circumstances of the case.

When it comes to the trial judge's decision to dismiss the case on the grounds of infliction of distress, the judge is in concurrence with that argument. He is of the opinion that something less than psychiatric injury is not sufficient to warrant compensation of damages on such grounds. One has to prove that what he has suffered amounts to a mental condition.

It is however easy for damages to be awarded on a ground of breach of confidence.

The judge also held that due to the reasons given above, the complainant was exaggerating the level of harm caused to her and this is because she was at some point aware that the defendant was making films of their relationship and that it seemed she was in agreement with that. So she was exaggerating by indicating that she was extremely hurt by the defendant's revelation.

Judgment of Neave J .A

She was of the opinion that the complainant had every right to contest the damages awarded to him it was not adequate. This is because at the trial stage of the case it was adequately proven that the defendant performed his act with the main intention of hurting the complainant and that the complainant had in no way authorized the defendant or suggested to him that he can reveal the tapes on their intimacy. According to her honour the law of equity and its remedies will apply and the law on defamation can also be another mode of being compensated.

However it is to be observed that even though the learned judge deemed it fit that the plaintiff had every right to contest the damages awarded, some of her actions did not support her plea. First of all she took an injunction order from court against her boyfriend but still had sexual relationship with the defendant. The injunction was awarded on the belief that the plaintiff was extremely scared of the defendant and that he was likely to cause her harm. The plaintiff's actions don't however seem to reflect that perception of fear. It is to be noted that the honorable judge is of the view that the plaintiff suffered other forms of emotional discomfort and humiliation but not physical or psychiatric injury and that as such it can be complicated for any court to grant her damages on grounds of intentional infliction of mental distress. She also suggests that even if the respondent is not held liable for assault and compensation awarded, he should be held answerable for the release of the videotapes {Whitefield vs. de Laurent and company limited}

Comparison of the judgments

Neave J concurs with Maxwell P, J that the Australian legal system does not allow for the expansion of the law of torts to cater for such torts like intentional infliction of mental distress. Neave J is also of the view that it is a bit hard and complicated to draw a distinction between mere distress and psychiatric injury this is in contradiction with Maxwell P's opinion that one has to prove psychiatric injury for them to be awarded damages on the ground of mental distress.

There is disagreement between Neave J and Maxwell P on the compensatory damages that should be awarded. Maxwell P is of the opinion that adequate damages should be awarded where it has been sufficiently proven to the court beyond reasonable doubt that the complainant has suffered mental distress. Neave J seems to differ with that opinion.

Maxwell J argues that even though Australian legislation does not provide for compensation of damages on the grounds of mental distress, it is upon the trial judge to look into the circumstances of a case and decide whether compensation should be awarded. Basically that area of it not being provided for does not mean that there is a restriction on any other reasonable judgment


From the above cases it is evident that the Australian law of contract does not recognize or provide for damages on the wrong of intentional infliction of mental distress under the law of torts. We also see from the arguments provided that no strict prohibitions have been laid out to prevent a trial judge from rendering his decision based on the circumstances of the case. Where it is evident that the plaintiff had as some point contributed to his own stress maybe through contributory negligence or If the plaintiff suggests or gives the defendant the impression that he can do a particular act that will cause harm to the plaintiff, then both of them will be held liable and the case might be subjected to dismissal.

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