4. Negligence: Psychiatric Harm Flashcards

1
Q

What are the elements required to show pure psychiatric harm?

A

Same as negligence generally:

  1. Duty
  2. Breach
  3. Causation
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2
Q

What instance of psychiatric harm is excluded from the rules discussed in this deck, and can be recovered under the regular rules of negligence, and why?

A

Psychiatric harm which is a consequence of physical injury, as long as the physical injury was foreseeable.

Because a defendant must take the claimant as they find them, so psychiatric reactions are in scope.

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3
Q

What is the duty of care owed to primary victims?

A

Primary victims are owed a duty of care in relation to psychiatric harm without physical injury, provided there was a foreseeable risk of physical injury to them

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4
Q

For a primary victim to recover, does the psychiatric harm need to be foreseeable?

A

No

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5
Q

What four criteria must be satisfied for a duty of care to be owed to secondary victims?

A
  1. Must be reasonably foreseeable that a person of normal fortitude in the claimant’s position would suffer psychiatric harm
  2. Claimant must have close ties of love and affection with a person in the zone of danger
  3. Claimant must be present at the accident or its immediate aftermath, and
  4. Claimant must witness events with their own unaided senses
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6
Q

What is required of the psychiatric harm in order to be able to claim, and what is the impact of this limitation?

A

It must be a medically recognised condition, meaning that no duty of care is owed regarding medically unrecognised or undiagnosed conditions.

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7
Q

What is the requirement of sudden shock for secondary victims?

A

For a duty to be owed for harm caused to a secondary victim, the harm must be caused by a sudden shocking event rather than psychiatric harm accrued over a longer period of time, e.g. watching a primary victim relative deteriorate over time in hospital

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8
Q

Does the requirement of sudden shock apply to primary victims?

A

Not necessarily (helpful I know)

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9
Q

What can negate the consideration of sudden shock altogether in an exam question?

A

Where the incident is within an employment context, a claimant can bypass all of this and just claim against the employer

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10
Q

When a claimant is able to establish the defendant owed a duty with respect to:

  1. Pure Economic Loss, or
  2. Psychiatric harm,

in both cases, what must the claimant then show?

A

The usual aspects required to recover under negligence, i.e. defendant breached the duty by falling below a reasonable standard, and the breach caused the damage.

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11
Q

What are the two types of victim in a psychiatric harm case and what distinguishes them?

A
  1. Primary victim: in the actual zone of danger or reasonably believes they are
  2. Secondary victim: not in the zone of danger
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