Case Number

LCA 444/87

Date Decided

7-30-1990

Decision Type

Appellate

Document Type

Full Opinion

Abstract

These combined appeals raise a common issue, whether a person who suffered mental injury in consequence of the death or severe bodily injury negligently caused to a close relative can recover damages in tort under the Civil Wrongs Ordinance [New Version], which establishes a cause of action based on common law negligence, and under the Road Accident Compensation Law, 1975, which imposes absolute liability for injuries suffered "in a road accident". After surveying the English, Australian and American judgments relating to compensation for mental injuries suffered because of severe injury to a loved one, the Supreme Court ruled that such damages were recoverable under both the Civil Wrongs Ordinance and the Compensation Law, pursuant to certain guidelines laid down by the Court.

1. Generally, the conceptual duty of care not to cause mental injury to third persons in consequence of bodily injury caused to the primary victim should be limited to those third persons who are related to the primary victim in the first degree, such as parents and children or spouses. Exceptional circumstances which might also be worthy of legal protection may be left to later cases.

2. It is not necessary that the secondary victim suffer the mental injury by virtue of his having directly perceived the original injury or its immediate aftermath. There should be no such special requirement, whether as part of or superimposed upon the general foreseeability test.

3. Similarly, the significance of the injured person's proximity or remoteness from the scene of the original accident should also be examined in the context of its influence on the foreseeability of the harm.

4. Nor should recovery be limited to such mental injury as is induced by shock. Injury that is the result of continuous exposure to the primary harm, for example by lengthy treatment and care of the primary victim, may also be compensable.

5. Only severe and substantial mental reactions are compensable. Lesser mental effects such as distress, pain and anger, that are daily occurrences and, in the nature of things, temporary and ephemeral, are not recoverable.

6. The same standards for recovery should apply under the Civil Wrongs Ordinance and under the Compensation Law.

Keywords

Torts -- Compensation, Torts -- Fault, Torts -- Negligence

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