Duty to Avoid Injury to Oneself and Thereby Psychiatric Injury to Others

Tortious liability for causing foreseeable mental harm to others is a complex category of tort law. It continues to evolve as plaintiffs devise novel arguments to test the parameters of what used to be known as pure psychiatric injury law. In Homsi v Homsi 2016] VSC 354, J Forrest J was called upon to rule on whether a mother could sue her deceased son for driving negligently and causing his own death and thereby causing her mental harm. Forrest J declined to permit recovery but in the course of his judgement helpfully analysed the current state of mental harm law in Australia, reviewed the circumstances in which relatives are able to sue one another for mental harm caused by self-injury, and articulated a range of policy considerations in relation to indeterminate liability for defendants. His judgement provides an important opportunity to reflect on the directions in which mental harm law should evolve to arrive at a rapprochement between plaintiffs’ reasonable aspirations for recovery and ensuring that the liability of defendants is not unreasonably wide.