A corrective justice justification for considering the response of the hypothetical person of an “ordinary level of susceptibility” when assessing reasonable foreseeability in cases involving negligently inflicted psychiatric injury
Tort Law Review
School of Business and Law
The law has long been concerned with limiting recovery for pure psychiatric injury in negligence in order to prevent liability to plaintiffs who are unusually susceptible to this type of injury. The justifications provided by courts for this concern have often centred on the idea that holding a defendant liable to such a plaintiff will be unreasonable. However, there is a gap in the reasoning of the courts and in the scholarly literature as to the potential theoretical justifications for measuring the reasonableness of the defendant’s conduct against the effect of that conduct on the hypothetical person of an “ordinary level of susceptibility”. This article attempts to address this gap, arguing that measuring the reasonableness of the defendant’s conduct in this way in relation to an overriding test of reasonable foreseeability can be explained pursuant to Allan Beever’s corrective justice theory of negligence.
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