CIVIL LIABILITY ACT 2002 - SECT 5S

CIVIL LIABILITY ACT 2002 - SECT 5S

5S .         Mental harm: duty of care

        (1)         A person (the defendant ) does not owe a duty of care to another person (the plaintiff ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

        (2)         For the purpose of the application of this section in respect of pure mental harm, the circumstances of the case include the following —

            (a)         whether or not the mental harm was suffered as the result of a sudden shock;

            (b)         whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;

            (c)         the nature of the relationship between the plaintiff and any person killed, injured or put in peril;

            (d)         whether or not there was a pre-existing relationship between the plaintiff and the defendant.

        (3)         For the purpose of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.

        (4)         This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

        [Section 5S inserted: No. 58 of 2003 s. 8.]