Negligence: Pure Psychiatric Harm

Question 1

Pure psychiatric harm: limiting factors for duty of care

Answer 1

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).

NB: The ‘sudden shock’ requirement means that there is no duty of care in relation to harm caused
by a gradual build- up of events.

Limitation: The courts have not allowed recovery for pure
psychiatric harm unless the claimant has been closely enough affected by the defendant’s
negligence.

Question 2

Primary Victim

Answer 2

Page v Smith:
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

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).

Question 3

Secondary victim

Answer 3

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.

Alcock v Chief Constable of South Yorkshire Police:

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.

• 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

NB: * a claimant cannot be compensated if the event is communicated by a third party.

In Alcock, it was also noted that a live television broadcast might be sufficient to render the
tortfeasor liable to claimants in shock if the ‘impact of the simultaneous television pictures
would be as great, if not greater, than the actual sight of the accident’.

Question 4

Rescuer

Answer 4

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.

• 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.

NB: it is unliky that the requirment of proxiimty of relationship (love nand affection) woudl be met

Question 5

Pure psychiatric harm: breach of duty and causation of damage

Answer 5

Remoteness of damage. For damage to be recoverable in the tort of negligence it must not be too remote. Damage is too remote if it is not a reasonably
foreseeable consequence of the defendant’s negligence. However, a proviso to this
requirement is the ‘egg- shell skull’ rule. Under the ‘egg- shell skull’ rule, the claimant only needs to show that some damage of the
kind they suffered was reasonably foreseeable.

Secondary victim - they must show that it was reasonably foreseeable
that a person of normal fortitude in the claimant’s position would suffer a psychiatric illness. + establish breach of duty. Egg skull rule cna be relied o in relation to causation and C can recover damages for all psychiatric harm suffered