---
title: "Set out the Victorian duty questions for pure mental harm"
url: "https://ailawframework.com/practice/personal-injury-and-compensation/set-out-the-normal-fortitude-questions-for-a-mental-harm-duty-of-care/victoria"
type: "task_jurisdiction_version"
site: "AI Law Framework"
id: "A21-FM20261023-9-VIC"
practice_area: "Personal Injury & Compensation (workers compensation, CTP/TAC, medical negligence)"
tier: "yellow"
lawyer_review: "required"
jurisdictions: ["VIC"]
last_reviewed: "2026-10-25"
---

# Set out the Victorian duty questions for pure mental harm

> In a firm-controlled tool, list the section 72 circumstances of the Wrongs Act 1958, one row each, and leave every answer blank. Keep section 23 in a separate row.

Canonical page: https://ailawframework.com/practice/personal-injury-and-compensation/set-out-the-normal-fortitude-questions-for-a-mental-harm-duty-of-care/victoria  
Last reviewed: 2026-10-25

Site index for agents: https://ailawframework.com/llms.txt

## Key facts

| Fact | Value |
| --- | --- |
| Practice area | [Personal Injury & Compensation (workers compensation, CTP/TAC, medical negligence)](https://ailawframework.com/practice/personal-injury-and-compensation.md) |
| Human involvement | Yellow: Lawyer and AI draft together |
| How AI is used | In a firm-controlled tool, list the section 72 circumstances of the Wrongs Act 1958, one row each, and leave every answer blank. Keep section 23 in a separate row. |
| What the lawyer must review | Decide whether a duty is owed. The tool does not answer the questions. Use section 72(3) only where lesser fortitude was known or ought to have been known. Do not treat section 23 as creating the duty. Shock does not by itself defeat the claim. |
| Written for | Victoria |
| Applies to | [Set out the normal-fortitude questions for a mental harm duty of care](https://ailawframework.com/practice/personal-injury-and-compensation/set-out-the-normal-fortitude-questions-for-a-mental-harm-duty-of-care.md) |

## Checking plan

**Victorian normal fortitude**

The tool lists the section 72 questions and leaves them blank. Section 23 is not the duty test.

- What the AI does: In a firm-controlled tool, list the section 72 circumstances of the Wrongs Act 1958, one row each, and leave every answer blank. Keep section 23 in a separate row.
- What the lawyer does: Make the legal assessment, check the source material and authorise the output for its intended use.
- Who reviews: Lawyer competent in this practice area
- Basis: Checked against the linked sources on 23 October 2026. Confirm the current instrument before reliance.

## Checks the lawyer makes

1. Use section 67: mental harm means psychological or psychiatric injury.
2. Include sudden shock, presence at the scene, the nature of the relationship, and any pre-existing relationship, because section 72 lists them.
3. Row section 72(3) separately from the normal-fortitude question.
4. Keep section 23 off the duty row.

## Notes

- Section 67 defines mental harm as psychological or psychiatric injury. Section 72(1) of the Wrongs Act 1958 says a defendant does not owe a duty to take care not to cause the plaintiff pure mental harm unless the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care were not taken. The circumstances include whether the harm was the result of a sudden shock, whether the plaintiff witnessed at the scene a person being killed, injured or put in danger, the nature of the relationship, and whether there was a pre-existing relationship between the plaintiff and the defendant. Section 72(3) says the section does not affect the duty if the defendant knows or ought to know that the plaintiff is a person of less than normal fortitude. Section 23 says that in an action for injury the plaintiff shall not be debarred from recovering merely because the injury arose wholly or in part from mental or nervous shock. Section 23 is not the duty test.
- Family, wage and medical records stay in a firm-controlled tool. ASCR r 9 and APP 11 apply. A breach may be notifiable under the Privacy Act 1988 (Cth).

## Practical guide

Jurisdiction: Victoria: Wrongs Act 1958 ss 67, 72 and 23

**Deliverable**: A question list taken from section 72, with every answer blank.

**Inputs**

- The pleaded circumstances
- What the defendant is said to have known
- Sections 72 and 23

**Example**: Illustrative example: The claimant has a pre-existing illness. The tool lists the section 72 circumstances and a separate section 72(3) row. It does not treat section 23 as the duty test. The lawyer answers the rows.

**Stop and escalate when**

- Section 23 is used as the test for a duty.
- An answer is filled in by the tool.

Checked 2026-10-23.

## Sources

- [Wrongs Act 1958 (Vic) s 72](https://classic.austlii.edu.au/au/legis/vic/consol_act/wa1958111/s72.html) (checked 2026-10-23)
- [Wrongs Act 1958 (Vic) s 23](https://classic.austlii.edu.au/au/legis/vic/consol_act/wa1958111/s23.html) (checked 2026-10-23)
- [Wrongs Act 1958 (Vic) s 67](https://classic.austlii.edu.au/au/legis/vic/consol_act/wa1958111/s67.html) (checked 2026-10-23)

## Forms and precedents for this task

| Form or precedent | Kind | AI level | Summary |
| --- | --- | --- | --- |
| [Psychiatrist's instructions on a recognised psychiatric illness](https://ailawframework.com/precedents/personal-injury-and-compensation/psychiatrist-recognised-psychiatric-illness.md) | Letter | Yellow | Letter asking a psychiatrist whether there is a recognised psychiatric illness for a mental harm claim, without asking the psychiatrist to apply the statutory tests. |

Signed-in accounts can read the full text of each one.

*Practice guidance for planning and review. Confirm current primary sources and the requirements of the actual matter. This is general information, not legal advice.*