Negligence: Psychiatric Harm

Question 1

What is “Pure Psychiatric Harm”

Answer 1

Harm caused to the claimant without physical impact.

Question 2

What is “Consequential Psychiatric Harm”

Answer 2

A claimant’s subsequent psychiatric harm as a result of a physical injury to them caused by negligence

Question 3

What is the duty of care owed to the claimant in cases of consequential psychiatric harm?

Answer 3

The duty of care owed with respect to the physical injury extends to the consequential psychiatric harm

Question 4

Difference between a primary and a secondary victim

Answer 4

Primary: Someone in the actual area of danger created by D’s negligence (or who reasonably believes themselves to be)

Secondary: Someone affected by D’s negligence, but is outside the area of danger (usually a bystander)

Question 5

What is the duty of care owed to Primary Victims

Answer 5

Foreseeable risk of physical injury (even if no physical injury occurred).

NOTE: Foreseeability of psychiatric harm not required.

Question 6

What are the requirements for a duty of care to be owed to Secondary Victims

Answer 6

• Reasonably foreseeable that a person of normal fortitude in the position of the claimant would suffer a psychiatric illness
• Secondary victim must have close ties with the person affected by D’s negligence (i.e., mother and child)
• Secondary victim must have been present at the incident or it’s immediate aftermath
• Secondary victim must have witnessed the events with their own senses

Question 7

What is the threshold for something to be pure psychiatric harm?

Answer 7

It must amount to a medically recognized psychiatric condition (e.g., PTSD).

Simple anxiety or distress is not.

NOTE: Distinguish from consequential psychiatric harm, where things like nightmares and anxiety can be recovered for.