Psych Injury Duty of Care

Question 1

Steps to establishing duty of care for psychiatric injury

Answer 1

a) Proof of psychiatric illness

b) Primary or secondary victim

Question 2

Psychiatric illness: PTSD

Answer 2

Alcock v Chief Constable of South Yorkshire

Question 3

Psychiatric illness: ME/chronic fatigue

Answer 3

Page v Smith

Question 4

Psychiatric illness: Gambling addiction

Answer 4

Calvert v William Hill Credit

Question 5

Primary victim test

Answer 5

Mediately or immediately involved (Alcock v CC of South Yorkshire)
‘Zone of foreseeable physical danger or reasonable belief that they are in that zone’ (White v CC of South Yorkshire)

Question 6

Limitations to the strict definition of primary victim

Answer 6

W v Essex CC (foster child sexual abuse)

In Re Organ Retention Group Litigation (stillborn children organs retained)

Question 7

‘Zone of foreseeable danger’

Answer 7

Foreseeability of physical injury (Page v Smith), did not matter if the actual injury was not physical

Question 8

“Foreseeability” narrowed for zone of foreseeable danger

Answer 8

Foreseeability must be about immediate injury, not an injury very long from now that may not even take place (Grieves v FT Everard) (absestos; pleural plaques)

Question 9

Negligent primary victim - secondary victim

Answer 9

No liability (Greatorex v Greatorex)

Question 10

Secondary victim test

Answer 10

4 proximities (Alcock v CC of South Yorkshire)

a) Proximity of relationship
b) Proximity of time/space
c) Perception by own sight/hearing
d) Shock

Question 11

Proximity of relationship

Answer 11

Close ties of love and affection

a) Presumed e.g. parent-child, married couple (see engaged couple)
b) Proven (e.g. brother-in-law in Alcock failed)

Question 12

Proximity in time/space

Answer 12

Used to be strict approach (e.g. lapse of time, prior knowledge = no proximity)
Now more flexible (Galli-Atkinson v Seghal)

Question 13

Perception by own sight/hearing

Answer 13

Witnesses that were not present ruled out
Uncertainty re ability to identify individuals even if the person was watching it e.g. children in hot air balloon (Alcock)

Question 14

“Shock”

Answer 14

= Sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind
Starting point: dramatic, unexpected event
Now more flexible where the shock is not experienced in a moment but over a sequence of events (North Glamorgan NHS Trust v Walters)

Question 15

Employees e.g. rescuers

Answer 15

No special protection (White v CC of South Yorkshire)

Question 16

How to determine if psychiatric injury is reasonably foreseeable in the workplace

Answer 16

Hale LJ, Hatton v Sutherland

a) Must foresee psych illness, not just stress
b) No particular jobs are more likely than others
c) Employers may assume that employees are competent
d) Provision of mental health support important

Question 17

Employer’s negligence leads employees to witness traumatic event

Answer 17

Apply primary/secondary victim test, rather than general duty of care test (Hartman v South Essex Mental Health and Community Care NHS Trust, in particular: Melville v Home Office) (suicide prison officer, cut down bodies)

Question 18

Extension of employer-employee negligence liability to prisoners

Answer 18

Butchart v Home Office (cell mate commits suicide)