4. Negligence: Psychiatric Harm

Question 1

What are the elements required to show pure psychiatric harm?

Answer 1

Same as negligence generally:

1. Duty
2. Breach
3. Causation

Question 2

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?

Answer 2

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.

Question 3

What is the duty of care owed to primary victims?

Answer 3

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

Question 4

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

Answer 4

No

Question 5

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

Answer 5

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

Question 6

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

Answer 6

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

Question 7

What is the requirement of sudden shock for secondary victims?

Answer 7

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

Question 8

Does the requirement of sudden shock apply to primary victims?

Answer 8

Not necessarily (helpful I know)

Question 9

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

Answer 9

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

Question 10

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?

Answer 10

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.

Question 11

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

Answer 11

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