Negligence - Pure Psychiatric Harm & Employer's Liability

Question 1

What kinds of harm will give rise to a duty of care?

Answer 1

1. Caused by a sudden shock
2. A medically recognised psychiatric illness, and
3. A shock-induced physical condition

Question 2

Who is a primary victim?

Answer 2

Someone actually involved in the incident - in the actual area of danger / reasonably believed they were in danger

Question 3

What are the requirements for a duty of care to be owed to a primary victim?

Answer 3

Duty owed in relation to psychiatric harm, provided risk of injury was foreseeable

NOT necessary for risk of psychiatric harm to be foreseeable

Question 4

What is a secondary victim?

Answer 4

Someone not involved in the incident in the same way, i.e. witness injury to someone else, or fears for safety of another person

Question 5

What type of injury must a secondary victim have suffered?

Answer 5

Medically recognised psychiatric illness or shock-induced physical condition caused by sudden shock

Question 6

What additional requirements must be satisfied for secondary victims, from Alcock v Chief Constables of South Yorkshire Police?

Answer 6

Foreseeability of psychiatric harm (reasonably foreseeable that a person of normal fortitude in the claimant’s position would suffer psychiatric illness)

Proximity of relationships (close relationship of love and affection - parent/ child, husband/ wife, fiancé/ fiancée; anything outside these relationships, claimant must prove close relationship of love and affection)

Proximity in time and space (present at accident or immediate aftermath)

Proximity of perception (see or hear accident or immediate aftermath)

Question 7

How are rescuers considered in terms victim classification?

Answer 7

Primary if in area of actual danger, and assisting in aftermath

Secondary if not (and must satisfy Alcock)

Question 8

What are an employer’s 4 common law duties?

Answer 8

1. Competent staff
2. Adequate material (i.e. plant, equipment and machinery)
3. Proper system of work and supervision
4. Safe place of work (from Latimer v AEC)

Question 9

In order to be in breach of duty, must the employer be aware of special circumstances for the claimant?

Answer 9

Yes

Question 10

What is contained in the Hatton Guidelines relating to taking what an employee says at face value?

Answer 10

Employers are entitled to do this

Question 11

Can breaches of statutory health and safety regulations be relied upon by employees as the basis for a claim against their employer?

Answer 11

No - however, content of the regulation will be relevant in assessing breach of duty in negligence

Question 12

Can a claim be brought against an EMPLOYER and EMPLOYEE - i.e. one direct liability, one vicarious liablity?

Answer 12

Yes - can sue both