32Mental harm—duty of care

#### 32 Mental harm—duty of care 32 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 purposes 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 purposes 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. > > **ss 31–33:** Ins 2002 No 92, Sch 1 \[5\].