Negligence: Pure Psychiatric Harm Flashcards
what is pure psychiatric harm?
psychiatric harm suffered without physical impact
what is the general rule regarding duty of care and pure psychiatric harm?
- The general rule is that there is no duty owed for pure psychiatric harm because, generally, there is a lack of sufficiently proximate relationship between C who has suffered PPH and D who may have caused it
it is important to remember this stage is only looking at whether there is duty of care for pure psychiatric harm. If this is proven, C would still need to establish breach and causation for D to be liable.
what is the position regard pure and consequential psychiatric harm?
pure > generally, not recoverable.
consequential > recoverable
what is consequential psychiatric harm?
psychiatric harm which occurs as a result of personal injury/damage. C can attempt to recover damages for consequential psychiatric harm, but they will still need to prove breach and causation (inc. remoteness)
what is the exception to the general position regarding psychiatric harm?
D will owe C a duty of care for pure psychiatric harm they have caused if:
1. the psychiatric harm was caused by sudden shock;
2. C has suffered a medically recognised psychiatric harm or shock induced physical condition; and
3. C satisfies the primary victim or secondary victim test
explain ‘the psychiatric harm was caused by sudden shock’
o i.e. a train or car crash
o something like psychiatric harm caused by looking after an ill loved one for a long time would not satisfy this.
explain ‘medically recognised or shock induced physical condition’
o i.e. clinical depression. A simply worry or anxiety would not be suffice.
o A shock induced physical condition would include something like a heart attack or miscarriage
when will a duty of care be owed under the primary victim test?
if the risk of physical injury was reasonably foreseeable then a DOC will be owed for PPH.
when will a duty of care be owed under the secondary victim test?
if the four-part test is satisfied then a DOC will be owed to a secondary victim for the PPH
what will someone be a ‘primary victim’? Give an example.
when C is actually involved in the accident. They are actively involved in the incident but they haven’t themselves suffered any physical harm (because if they had suffered physical harm the DOC would be different) but they have suffered pure psychiatric harm.
what is the primary victim test?
a risk of physical injury must have been reasonably foreseeable (although it did not occur), i.e.:
o C was in the actual area of danger; or
o They reasonably believed they were in danger
- NB: it is not necessary to prove that the risk of the psychiatric harm was foreseeable, just that the risk of physical injury was foreseeable.
if this is satisfied, then there will be a sufficiently proximate relationship between C & D and a duty of care will be imposed.
who is a secondary victim?
people who weren’t directly involved in the accident but witness it or sees other people physically injury (i.e. they fear for the safety of another person)
re: secondary victim test
explain ‘psychiatric injury is reasonably foreseeable’
i.e. a person of normal fortitude could have suffered from psychiatric injury
o This is a control mechanism i.e. if someone is more inclined to suffer psychiatric injury, you compare them against a reasonable person, not their actual state.
NB: important not to impose the egg-shell rule. This only comes into play at the point of causation. If C is more likely to have suffered psychiatric harm for some reason, that is not relevant or considered under this limb,
what is the secondary victim test?
If the following points are satisfied, then a DOC for PPH will be owed to the secondary victim:
1. The psychiatric injury is reasonably foreseeable;
2. Proximity of relationship;
3. Proximity of time and space:
4. Proximity of perception
re: secondary victim test
explain ‘proximity of relationship’
i.e. C must have a close relationship of love and affection with the person endangered by D’s negligence (i.e. the immediate victim)
o There are some presumptions of this such as husband and wife, parent and child, fiancé and fiancé
o Even if the relationship falls into one of these categories, if D can prove that C was not in fact close with the victim, D can rebut this presumption with evidence.
o In other situations, C must prove they were in a close tie of love and affection with the person that they witnessed being involved in the incident, for example, sibling to sibling would need to be proved.
