5 - Negligence: Pure Psychiatric Harm Flashcards
Why does the general rule state that a defendant does not owe any duty of care to a claimant not to cause pure psychiatric harm?
A prerequisite for a duty of care is a sufficiently proximate relationship between the claimant and the defendant.
As with pure economic loss, there is generally a lack of a sufficiently
proximate relationship between a claimant who has suffered pure psychiatric harm, and a defendant who may have caused this type of loss.
However, as with pure economic loss, there are some limited situations in which damages can be recovered for pure psychiatric harm.
What is the aim of the rules which establish when a defendant does owe the claimant a duty of care not to cause them pure psychiatric harm.
The aim of the rules is to define when a claimant has been closely enough affected by the defendant’s negligence. If a claimant has been closely enough affected by the defendant’s negligence then a duty of care is owed to them.
If the claimant falls outside the class of closely affected victims then no duty of care is owed to them. Such a claimant will not receive compensation for his pure psychiatric harm, even if he can show that the defendant was negligent and that this negligence was the cause of their
psychiatric harm.
How is pure psychiatric harm defined in negligence, and what distinguishes it from consequential psychiatric harm?
Pure psychiatric harm is psychiatric damage caused without any physical impact or injury to the claimant.
It is distinct from consequential psychiatric harm, which arises as a result of a physical injury.
Example: If a motorist negligently knocks down a pedestrian, Jim, causing him a broken leg, and Jim later experiences anxiety, nightmares, and a medically diagnosed phobia of cars, these psychological effects would be considered consequential psychiatric harm, not pure psychiatric harm.
Consequential psychiatric harm is treated as part of the overall physical injury, and compensation would cover all pain and suffering, including the mental effects.
Pure psychiatric harm is more narrowly defined, and compensation for it is more restricted compared to the broader scope of compensation for harm linked to physical injury.
What types of conditions or illnesses might constitute pure psychiatric harm in negligence?
Conditions that may constitute pure psychiatric harm include:
- Psychiatric illnesses, such as post-traumatic stress disorder (PTSD)
- Lesser conditions, such as worry and anxiety
- Physical illnesses caused by sudden shock, such as a heart attack or miscarriage
- Gradually developing conditions, such as depression caused by caring for an injured relative
These conditions occur without any physical impact, and the potential liability for such harm could be extensive, which is why the courts have developed specific rules to limit the scope of claims for pure psychiatric harm.
What are the limiting factors for establishing a duty of care in cases of pure psychiatric harm?
Pure psychiatric harm refers to psychiatric harm suffered without physical impact. However, only certain kinds of pure psychiatric harm can give rise to a duty of care, as defined by specific court rules.
The rules are that the injury must either be:
- A medically recognised psychiatric illness, or
- A shock-induced physical condition (such as a miscarriage or heart attack).
There is no duty of care for effects that do not amount to a defined and diagnosed illness, such as simple worry or anxiety, even if caused by the defendant’s negligence.
The claimant must be closely enough affected by the defendant’s negligence to recover for pure psychiatric harm.
How does the law distinguish between different types of victims in cases of pure psychiatric harm?
In pure psychiatric harm cases, the distinction between primary and secondary victims is crucial.
Primary victims:
Directly involved in the incident.
Were either:
- In the actual area of danger, or
- Reasonably believed they were in danger.
Example: Sarah, knocked off her bike by Peter, suffers psychiatric harm.
Secondary victims:
Not directly involved but witness the event.
- Example: Jane, a pedestrian, witnesses Sarah’s accident and suffers psychiatric harm.
Secondary victims must meet a stricter set of requirements to establish a duty of care.
What are the requirements for establishing a duty of care towards a primary victim in cases of pure psychiatric harm?
The requirements for a duty of care to primary victims are as follows:
The victim must be:
- In the area of danger, or
- Reasonably believe they were in danger.
The duty of care is owed if:
- The risk of physical injury to the primary victim was foreseeable.
- It is not necessary for the risk of psychiatric harm to be foreseeable.
Example: In Page v Smith, the claimant did not suffer physical injury, but the foreseeable risk of physical injury led to a duty of care regarding his psychiatric illness.
How is the duty of care determined for secondary victims in cases of pure psychiatric harm?
A secondary victim is someone who was not directly involved in the incident but either:
- Witnessed injury to someone else, or
- Feared for another person’s safety.
Example of someone not a secondary victim: In Dulieu v White & Sons, a pregnant barmaid suffered shock and a miscarriage after a van negligently crashed into her workplace. She was a primary victim because she reasonably feared for her safety, even though her actual harm was pure psychiatric.
Secondary victims face a more stringent test to establish a duty of care.
What are the general principles for establishing a duty of care for secondary victims in cases of pure psychiatric harm?
A secondary victim is someone less closely involved in the incident caused by the defendant’s negligence. Not all secondary victims are owed a duty of care, and courts narrow down the number of secondary victims entitled to compensation.
Key points include:
- The secondary victim must have suffered a medically recognised psychiatric illness or shock-induced physical condition.
- Secondary victims, like those in Alcock v Chief Constable of South Yorkshire Police (Hillsborough disaster case), must meet additional requirements set by the court.
What are the requirements set by the House of Lords in Alcock v Chief Constable of South Yorkshire Police for establishing a duty of care to secondary victims?
The following requirements, known as the “Alcock control mechanisms”, must be satisfied:
Foreseeability of psychiatric harm: It must be reasonably foreseeable that a person of normal fortitude in the claimant’s position would suffer psychiatric illness.
Proximity of relationship: The claimant must have a close relationship of love and affection with the person endangered by the defendant’s negligence.
Proximity in time and space: The claimant must be present at the accident or its immediate aftermath.
Proximity of perception: The claimant must perceive the event or its immediate aftermath with their own senses.
How is foreseeability of psychiatric harm assessed for secondary victims?
For secondary victims, foreseeability of psychiatric harm must be established by asking if an ordinary person in the claimant’s position would suffer psychiatric injury due to witnessing the event. This differs from primary victims, where foreseeability of physical injury suffices.
Example: A mother watching her child being struck by a car would likely satisfy this requirement, as it is foreseeable that a person of normal fortitude would suffer psychiatric harm.
What is the requirement of proximity of relationship for secondary victims?
The claimant must have a close relationship of love and affection with the person endangered by the defendant’s negligence.
- Presumed relationships: Parent/child, husband/wife, and fiancé/fiancée are presumed to have close ties of love and affection.
- If the defendant can prove that the claimant was not actually close to the victim, the presumption can be rebutted.
- If no presumption applies, the claimant must prove the existence of close ties of love and affection.
How are proximity in time and space, and proximity of perception, assessed for secondary victims?
For secondary victims, the claimant must:
- Be present at the accident or its immediate aftermath.
- Perceive the event with their own senses (sight or hearing).
Example: In McLoughlin v O’Brian, the claimant arrived at the hospital an hour after a road accident and saw her injured family still in their traumatised condition. This was deemed the “immediate aftermath”.
Alcock case: A claimant who identified a relative in the mortuary eight hours later did not meet the “immediate aftermath” requirement.
What are the principles governing rescuers’ claims for pure psychiatric harm?
Rescuers are not automatically owed a duty of care for pure psychiatric harm just because they act as rescuers. They are treated like any other victims of psychiatric harm.
Primary victim: If a rescuer is in the actual area of danger and at risk of physical injury, they are classified as a primary victim, and a duty of care is owed if there is a foreseeable risk of physical injury (even if the actual harm suffered is psychiatric).
Secondary victim: If a rescuer is not in the area of danger and not exposed to physical injury, they are a secondary victim and must meet the Alcock test (foreseeability, proximity in relationship, time, and perception).
There is no special rule that professional rescuers (e.g., police, ambulance staff) are expected to be more resistant to shocking events.
A case example is Chadwick v British Railways Board, where a rescuer was in the area of danger and was owed a duty of care after suffering pure psychiatric harm.
What must a claimant prove to succeed in a pure psychiatric harm claim?
The claimant must establish:
- Duty of care: It must be shown that the defendant owed a duty of care.
- Breach of duty: The defendant fell below a reasonable standard of care.
- Causation of damage: The breach must have caused the claimant’s psychiatric harm.
Often, breach of duty or causation is assumed for argument’s sake, focusing instead on whether a duty of care was owed.
The damage must not be too remote: It must be a reasonably foreseeable consequence of the defendant’s negligence.
The egg-shell skull rule applies: The defendant must take the victim as they find them. If the claimant has a pre-existing condition making them more vulnerable, they can recover for the full extent of their harm even if the extent of the injury was unforeseeable.
