Introduction
The tort of negligence has long attracted widespread interest. It fortifies community expectations and standards and hence ‘it is especially prone to influence by moral, social, economic and political values’. Of particular interest is the recognition of liability for negligently caused mental harm. Throughout its history courts have been cautious in awarding damages in fear of opening the ‘floodgates of litigation’. To assess whether further limitations should be placed on the scope of liability for mental harm in Western Australia or in fact Australia, we must look upon the history of ‘nervous shock’ law, the legitimacy of floodgate arguments and the effect of recent reforms and new legislative provisions in the various Civil Liability Acts.

Development of the law
The right to claim for negligently caused mental harm has been around for some 125 years dating back to the pre-federation Victorian case of Coultas v Victorian Railway Commissioners. It has consistently been far more tedious in establishing than claims surrounding physical harm due to a difficulty in distinguishing between real or imaginary/exaggerated claims. Seeing is believing and since psychiatric injury is not visible to the untrained eye, claims were long thought of as frivolous. In recent decades, however, medical identification of psychiatric injury has propelled legal recognition of it. As Gummow and Kirby JJ noted in Tame and New South Wales and Annetts v Australian Stations Pty Ltd, ‘there have been advances in the capacity of medicine to objectively distinguish the genuine from the spurious’.

History of the law
The history of the common law in this area heavily rests on the fear of opening the floodgates of litigation. Courts have been hesitant in recognising claims, concerned with creating indeterminate liability for plaintiffs. During the 20th century statutory law