Managing Liability for Bystander Psychiatric Injury in a Post-Hill v Van Erp Environment

Abstract

The High Court of Australia has had the opportunity of considering liability for psychiatric injury suffered as the result of the death, injury or imperilment of another ("bystander recovery") on only four occasions, twice in the 1930s, once in the 1970s and once in the 1980s. The last of those occasions, Jaensch v Coffey , represented a confluence of reasoning not only in relation to liability for nervous shock, but also in relation to liability for negligence in general. This case stood at the crossroads of two different methods for the determination of the existence of a duty of care. It was decided at a time when Lord Wilberforce's two tier test from Anns v Merton London Borough Council was the prevailing test not only in this country6 but also England,7 New Zealand8 and Canada.