Negligence defence - psychiatric harm

Question 1

steps within psychiatric harm

Answer 1

1- d was negligent and caused injury
2- c has suffered a recognised psychiatric illness
3- psychiatric injury is caused by a sudden event
4- is c a primary or secondary victim
- categories for claimants -primary or secondary - only discuss if relevant
5- if c is a secondary victim - must pass the ALCOCK criteria for proximity
6- reasonably foreseeable that a person of reasonable fortitude would have suffered the same injury in the circumstances

Question 2

1st step

Answer 2

d was negligent and caused injury

already established in answer

Question 3

2nd step

Answer 3

c has suffered a recognised psychiatric illness
must be a recognised psychiatric illness, supported by medical evidence
more then mere shock or grief
must be long term
must affect c’s ability to work-must include loss of earnings (past and future)
e.g. PTSD, depression , acute anxiety

Question 4

3rd step

Answer 4

psychiatric injury is caused by a sudden event
SION V HAMPSTEAD HEALTH AUTHORITY
must be a sudden horrifying event

but - NORTH GLAMORGAN NHS TRUST V WALTERS
son died over the course of 36 hours due to hospitals negligence - able to claim

Question 5

step 4 and case

Answer 5

is c a primary or secondary victim
case
PAGE V SMITH
made a distinction between secondary and primary victims and stated that secondary victims would have to pass additional criteria

Question 6

definition of primary victim

Answer 6

victim of an accident or someone who reasonably fears for their own safety

Question 7

definition of secondary victim

Answer 7

person who witnesses an accident / tragic event who is not directly involved in the accident and not in danger of psychical harm themselves - must prove additional criteria

Question 8

• categories of claimants

cases

Answer 8

-rescuers
courts don’t want to discourage rescueing so likely claim for psychiatric harm suffering in the act of rescuing will be allowed
CHADWICK V BRITISH RAIL
rescuers are usually at risk themselves so classes as primary victims
WHITE V CHIEF CONSTABLE OF SOUTH YORKSHIRE
if rescuers do not put themselves physically at risk they are secondary victims.

• bystanders
  witnesses to an accident or the aftermath but do nothing to help
  MCFARLANE V E E CALEDONIA
  secondary victims - not able to claim unless fulfill all criteria
• property owners
  seeing her house burning down - primary victim
• “near missers”
  people who were close to the scene of the accident and may have suffered physical injuries - regarded as primary victims

Question 9

step 5 and case

Answer 9

if c is a secondary victim - must pass the ALCOCK criteria for proximity
ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE
criteria set out a precedent for secondary victims in future cases - proximity - must prove all 3:
1) proximity of relationships
c had close ties of love and affection with v:
- close type of relationship - by blood relation, in relationship - close friends - very rare
- close in fact - based on evidence e.g. communications

2) proximity in time
mental injuries suffered at scene of accident or immediate aftermath. no time limit defined, approved 2 hours. 8 hours insufficient

3) proximity in space
suffered shock through his / her own unaided senses - saw/heard accident or it’s aftermath. not through tv. radio or phone/ social media

Question 10

step 6

fortitude within step 5 meaning

what is the test called

Answer 10

reasonably foreseeable that a person of reasonable fortitude would have suffered the same injury in the circumstances

• strength / strong
• called the threshold test. objective test.