4. Negligence: Psychiatric Harm Flashcards
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?
Consequential psychiatric harm.
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.)
What is the test for duty of care owed to primary victims?
Duty of care if D suffered:
1) medically recognised psychiatric harm without physical injury, OR a shock-induced physical injury
2) a foreseeable risk of physical injury to them
For a primary victim to recover, does the psychiatric harm need to be foreseeable?
No - but defendant must reasonable have foreseen physical injury.
What four criteria must be satisfied for a duty of care to be owed to secondary victims?
- Must be reasonably foreseeable that a person of normal fortitude in the claimant’s position would suffer psychiatric harm
- Proximity of relationship - Claimant must have close ties of love and affection with a person in the zone of danger
- Proximity in time and place - Claimant must be present at the accident or its immediate aftermath, and
What is required of the psychiatric harm in order to be able to claim, and what is the impact of this limitation?
It must be a medically recognised condition,
No duty of care is owed regarding medically unrecognised or undiagnosed conditions OR for fear, distress or grief [Hinz v Berry].
What is the requirement of sudden shock for secondary victims?
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
Does the requirement of sudden shock apply to primary victims?
Not necessarily (helpful I know)
What can negate the consideration of sudden shock altogether in an exam question?
Where the incident is within an employment context, a claimant can bypass all of this and just claim against the employer
What are the two types of victim in a psychiatric harm case and what distinguishes them?
- Primary victim: in the actual zone of danger or reasonably believes they are
- Secondary victim: not in the zone of danger
Must the claimant witness the event with their own senses?
There is generally no duty owed to a secondary victim who does not witness the event with their own unaided senses.
However, the possibility was left open for claims involving live television broadcasts where it was clear that specific victims had died, for example, if a hot-air balloon carrying children were to explode on television and this was being watched on the television by the children’s parents.
What are the four instances where ‘close ties of love and affection’ are presumed for secondary victims?
parents, children, spouses and engaged couples
