What are the steps for determining a duty of care in tort, as regards psychiatric injury? Is it just
a) there must be a sudden shock resulting in psychiatric injury
b) must be a family member or have sufficient proximity to the victim
c) to see or hear the incident
d) must witness the offense or subsequently
e) must be a recognized psychiatric illness
f) be a normal person of strength?
Where?
I see that your question is posted on the Australian site, but in what state? In South Africa, for example, all come under the Civil Liability Act 1936. In a word, it need not be a sudden shock (which is a factor which the court must consider, but it is not absolutely necessary). The applicant shall, in the case of pure mental (that is, if the applicant is not physically injured) were present at the scene of the accident (it's not a crime, is a question of law civilian) or be the parent, child or spouse of a person injured in the accident.
For mental accordingly (if the plaintiff suffers a mental injury resulting from an accident in which he or she also suffered physical harm), you can apply the related principle of Lord Atkin and basically treat it as a matter of physical injury.
The applicant must have a recognized psychiatric illness.
The person need not be the normal force. The normal force test requires a hypothetical person of normal strength in the plaintiff's position would have suffered a mental injury. If this is the case, then it makes no difference if the plaintiff was in fact the normal force or not.
If I had to make an educated guess, it would be f. I do not see how someone with a pre-existing condition can not claim a psychiatric injury!
Posted on March 10, 2010.