34Mental harm—duty of care

34 Mental harm—duty of care (1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the application of this section in relation to pure mental harm to a person, the circumstances of the case to which the court must have regard include— (a) whether or not the mental harm was suffered as the result of a sudden shock; and (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; and (c) the nature of the relationship between the plaintiff and anyone killed, injured or put in danger; and (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the application of this section in relation to consequential mental harm to a person, the circumstances of the case to which the court must have regard include the nature of the bodily injury out of which the mental harm arose. (4) This section does not affect the duty of care a person (the defendant) has to another person (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude. Mental harm Part 3.2