Section 72. Mental harm—duty of care

In any action for injury to the person the plaintiff shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock.

 (1)     A person (the defendant ) does not owe a duty to another person (the plaintiff ) to take care not to cause the plaintiff pure mental harm unless the defendant foresaw or 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, 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 danger;

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

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

(3)     This section does not affect the duty of care of a person (the defendant ) to another (the plaintiff ) if the defendant knows, or ought to know, that the plaintiff is a person of less than normal fortitude.