A Summary.
- 9.2 'Consequential' mental harm (arises from physical injury), 'Pure' mental harm (no physical injury).
- 9.5 Compensation only for 'recognised psychiatric illness' in pure mental harm.
Recommendation 33: Expert panel to develop guidelines for assessing whether person has suffered recognised psychiatric illness (in legal terms).
- 9.13 From Tame/Annetts: the only precondition to a duty of care is reasonable foreseeability of mental harm. Harm must be reasonably foreseeable to a person of normal fortitude in the circumstances of the case.
- 9.14 Circumstances of the case include sudden shock, presence at the scene of the incident (or immediate aftermath), direct perception, pre-existing relationship between P and D, relationship between P and victim.
- 9.15-9.17 It would be unreasonable to require D to take precautions to protect people with any less than normal fortitude. But, different if D knows of P's vulnerability, same as with physical injury.
- 9.24 Limitations on liability have been abandoned by common law because they appear arbitrary and unprincipled. This is less of a problem for parliament, who can rely on social justifications, but the limitations may still be perceived as unfair.
- 9.27 The panel does not recommend a list of relationships in which people would be eligible to recover for psychiatric harm resulting from injury or death to another. But, if such a list were created, the panel recommends:
- Parents (or equivalent)
- Spouses and domestic partners
- Siblings and step-siblings
- Children (including step- or adopted).
Recommendation 34:
Enact legislation stating what the panel sees to be the current state of the law:
a) No liability for pure mental harm except for recognised psychiatric illness.
b) No duty owed unless it was foreseeable in the circumstances that a person of normal fortitude might suffer such illness.
c) Relevant circumstances include: sudden shock, presence at the scene, direct perception, pre-existing relationship between P and D, nature of relationship between P and victim.
Recommendation 35:
Rules regarding establishing a duty should be the same regardless of how the action is brought (tort, contract, statute except by express provision to the contrary).
- 9.31 Liability for mental harm depends on a duty to the person suffering mental harm. It is independent of any duty owed to the injured person.
- 9.33 But, because D should not be held fully liable for something only partially their fault…
Recommendation 36:
When P suffers mental harm from witnessing injury to V caused by D's negligence, damages recoverable by D will be reduced in the same proportion as compensation to V would be reduced for V's contributory negligence.
- 9.34 Currently, P does not have to suffer recognised psychiatric injury to recover for consequential mental harm (in particular, economic loss resulting from that economic harm).
- 9.35 The issue is whether recovery in such case should be subject to the same limitations as claims for pure mental harm.
- 9.36 It is unfair that a person who suffers some physical harm and consequential mental harm can recover large amounts for economic loss, when someone who suffered the same mental harm without physical injury could not recover.
- 9.37 A separate duty in relation to mental harm should have to be established.
Recommendation 37:
Enact legislation restricting recovery for consequential mental harm to cases in which there is recognised psychiatric injury and the defendant ought to have foreseen that person of normal fortitude would suffer such injury in the circumstances. Relevant circumstances include the physical injury suffered.
- 9.40 Because of the need for expert witnesses to identify recognised psychiatric harm, and because of concerns about the quality and impartiality of expert testimony…
Recommendation 38:
The panel from 33 should develop a system of training and accreditation for forensic psychiatric experts.