ABSTRACT
From the outset it is worth keeping some points in mind. The purpose of this chapter and that which follows is to examine how the courts have determined issues concerning employers' common law liability for workplace trauma in a variety of circumstances. The discussion in these chapters is therefore organised according to the types of factual settings arising, rather than according to the legal principles that were applied. These principles have already been addressed in chapter 4. It was seen there that a number of issues are predominate, including the following:
• in England more than Australia, whether the plaintiff is characterised as a "primary" or "secondary" victim. In this connection, it will be seen that whether the original Lord Oliver definition of "primary victim" (in terms of a participant) or the refrained Lord Lloyd definition (of a
person at risk of physical injury) is applied will be significant; • whether the plaintiffs response was that of a person with normal
fortitude; • whether the employer ought to have reasonably foreseen the risk of
psychiatric injury in the circumstances - it will be insufficient if a reasonable person in the employer's position would only have foreseen grief or other transient emotional reaction but no more;1
and • whether any breach of duty actually caused the psychiatric injury.3
