Negligence: Pure Psychatric harm Flashcards
Psychiatric harm
Where a claimant has suffered pure psychiatric harm – ie without physical impact – the injury must be:
* caused by a sudden shock; and either
* a medically recognised psychiatric illness; or
* a shock-induced physical condition (such as a miscarriage or heart attack)
Different types of victim
Primary victim and secondary victim
Primary victims
Primary victims
A primary victim is someone who was actually involved in the incident. So, a primary victim:
* was in the actual area of danger; or
* reasonably believed that he was in danger.
The requirements for a duty of care to be owed to a primary victim are:
* primary victims are owed a duty of care in relation to their pure psychiatric harm, provided the risk of physical injury was foreseeable;
* for primary victims it is not necessary for the risk of psychiatric harm to be foreseeable.
Secondary victims
A secondary victim is someone who is not involved in the incident in the same way. So a secondary victim:
* witnesses injury to someone else; or
* fears for the safety of another person.
A defendant owes a primary victim a duty of care not to cause pure psychiatric harm, provided that the risk of physical injury was foreseeable (although it did not in fact occur).
Secondary victim further requirements
The House of Lords set down the current test to determine whether a duty of care is owed for pure psychiatric harm suffered by a secondary victim.
All of the following requirements 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 a psychiatric illness.
* Proximity of relationship.
The claimant must have a close relationship of love and affection with the person who is 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 see or hear the accident, or its immediate aftermath, with their own senses.
Secondary victims: Foreseeability of psychiatric harm
Was it reasonably foreseeable that a person of normal fortitude in the claimant’s position would suffer a psychiatric illness?
Secondary victims: proximity of relationship
The House of Lords stated that:
* Where a relationship of parent/child, husband/wife and fiancé/fiancée exists, there is a presumption of a relationship of close ties of love and affection.
* If the defendant knows that, although the claimant falls into a category where love and affection can be presumed, the claimant was not in fact very close to the victim, the defendant can adduce evidence to the court to rebut the presumption of love and affection.
* If the claimant falls outside the categories where close ties of love and affection can be presumed, the claimant must prove that a close relationship of love and affection existed.
Secondary victims: proximity in time and space and proximity of perception
The requirements under Alcock are that:
* the claimant must be present at the accident or its immediate aftermath; and
* the claimant must see or hear the accident, or its immediate aftermath, with their own senses.
Rescuers
The House of Lords’ decision means that rescuers (and those acting in the course of their employment) should be treated in the same way as any other victim who suffers only pure psychiatric harm. Therefore:
* If a rescuer has been in the actual area of danger, they are a primary victim. A duty of care is owed to a primary victim, provided there is a foreseeable risk of physical injury (even though the injury he in fact suffers is pure psychiatric harm).
* If a rescuer has not been in the actual area of danger so that they have not been exposed to any risk of physical injury, they will be classed as a secondary victim. They will be owed a duty of care only if they meet all of the tests laid down in Alcock.
Pure psychiatric harm: breach of duty and causation of damage
Under the ‘egg-shell skull’ rule, the claimant only needs to show that some damage of the kind they suffered was reasonably foreseeable. Provided this is satisfied, they can recover damages for the full extent of the loss which they actually suffer – it does not matter that the full extent of his loss could not reasonably have been foreseen.
This issue is relevant to the Alcock test for secondary victims above and whether it is reasonably foreseeable that a person of normal fortitude in the claimant’s position
would suffer a psychiatric illness
