Negligence: Pure Psychiatric Harm (PPH)

Question 1

What is pure psychiatric harm?

Answer 1

Psychiatric harm which does not result from any physical impact

(As opposed to consequential psychiatric harm, eg. anxiety as a result of breaking leg)

Question 2

What is the general rule in negligence about pure psychiatric harm?

Answer 2

General rule is there is no duty of care for pure psychiatric harm

Question 3

What is the exception to the general rule in negligence about pure psychiatric harm?

Answer 3

A duty of care will be owed for PPH if:

The PPH was caused by a sudden shocking event

and

The claimant suffers a medically recognised psychiatric harm (or a shock induced physical condition)

and

The claimant satisfies either the primary victim or secondary victim test

Question 4

When will a duty of care be owed in negligence for pure psychiatric harm? (3 requirements)

Answer 4

The PPH was caused by a sudden shocking event (eg. a car crash)

and

The claimant suffers a medically recognised psychiatric harm (clinical depression rather than general upset)
or a shock induced physical condition (eg. heart attack, miscarriage)

and

The claimant satisfies either the primary victim or secondary victim test

Question 5

What is the primary victim test for PPH?

Answer 5

A duty of care can be owed if -

1. The claimant is ACTIVELY INVOLVED in the incident (in the ‘danger zone’), but haven’t themselves suffered any physical harm

and

2. The risk of PHYSICAL injury was reasonably foreseeable

Question 6

Who is a secondary victim in PPH?

Answer 6

A secondary victim is someone who witnesses others involved in the incident, but wasn’t themselves physically involved

Question 7

What is the secondary victim test for PPH?

Answer 7

A duty of care can be owed if:

a. Psychiatric injury is reasonably foreseeable
(ie. a person of normal fortitude would suffer some form of psychiatric injury)

b. Proximity of relationship
- Presumption of proximity for spouses + parents & children
- Otherwise, must demonstrate close ties of love & affection

c. Proximity in time & space (there at the incident scene or immediate aftermath where scene is pretty unchanged)

d. Proximity of perception
(claimant witnessed the events with their own senses - not told about it by a third party or seeing it on TV)

Question 8

What are the four limbs to the secondary victim test?

Answer 8

Duty of care will be owed if:

a. Psychiatric injury reasonably foreseeable

b. Proximity of relationship

c. Proximity in time & space

d. Proximity in perception

Question 9

When will there be a presumption of proximity of relationship in the secondary victim test/

Answer 9

Spouses + Parents & children

Otherwise must demonstrate close ties of love & affection

Question 10

Are rescuers given any special status in PPH claims?

Answer 10

No

Any rescuer (both amateur & professional) must satisfy all parts of the test for a duty of care to be owed