First Principles of Business Law

The tort of Negligence

4.1.The foreseeablity of harm

4.1.5. The foreseeability of psychiatric harm




In some cases, a plaintiff may suffer harm to their mental or nervous system as distinct from conventional physical damage to the body. Historically, such harm was not well understood and the courts took a rather unsympathetic attitude towards it. People were generally expected to deal with what was characterised as mere 'shock', 'upset' or 'grief'. With advances in medical science, the courts now take a more realistic attitude, recognising that sometimes a plaintiff suffers from psychiatric harm (what used to be termed 'nervous shock'). Such damage is as real and substantial as conventional physical harm.

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

A plaintiff claiming damages for psychiatric harm must establish that they are suffering from positive psychiatric illness and not merely from grief, distress or other such ordinary emotions. Note: Recent legislative changes in most states have now further clarified the factors that are relevant to establishing a duty of care in cases involving psychiatric or 'mental' harm. See, for example, Wrongs Act 1958 (Vic) s 72.

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