South Australian Current Acts

CIVIL LIABILITY ACT 1936 - SECT 33

33—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 psychiatric illness.

        (2)         For the purposes of this section—

            (a)         in a case of pure mental harm, the circumstances of the case to which the court is to have regard include the following:

                  (i)         whether or not the mental harm was suffered as the result of a sudden shock;

                  (ii)         whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;

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

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

            (b)         in a case of consequential mental harm, the circumstances of the case include the nature of the bodily injury out of which the mental harm arose.

        (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 reasonably to know, that the plaintiff is a person of less than normal fortitude.