Psychiatric Harm Flashcards
What is psychiatric harm?
A form of psychiatric illness that the C has suffered as a result of the perception of traumatic events
‘Nervous shock’ old terminology
NB despite differences for other types of harm, the tort is still negligence, but the loss is psychiatric harm - still need to provde other elements of negligence to succeed
What must psychiatric harm be?
2 things (alternatives)
- A medically recognised psychiatric illness; or
- A shock-induced physical condition (heart attack)
‘Nervous shock’ another term for it
What is the rationale for the policy reasons behind the limitations placed on recovery of pure psychiatric harm?
- Floodgates - increase in number of Cs who could recover (e.g. all attendees at Hilsborough)
- Crushing liability - damages out of proportion to negligent conduct (e.g. everyone who witnesses a car accident)
- Fraudulent claims - easier to ‘fake’ psychiatric injury; harder to check or control
- Effect of increased availability of compensation on potential Cs - e.g. disincentive to rehabilitation
What is the difference between primary and secondary victims in terms of:
- What they suffer psychiatric harm as a result of?; And
- Where they are with regards to the traumatic event?
Primary victim =
- Suffers psychiatric (not physical) harm as a result of reasonable fear for their own physical safety (objective test)
- Involved in the traumatic event and are in area of danger
Secondary victim =
- Suffers psychiatric harm due to fear for someone else’s safety - not in reasonable fear for own physical safety
- Witness traumatic event/its immediate aftermath and suffer psychiatric harm as a result but not involved in area of danger
Courts apply different tests re whether DOC owed
Is an objective test
Primary:
- Pregnant barmaid working at pub which D negligently crashed his coach and horses through - suffered severe shock leading to baby being born with cognitive impairment (feared for own safety)
- C involved in car crash caused by D’s negligence - suffered no physical injury but worsened ME to make permanently disabled (fear for own safety)
Secondary:
- Cs at Hilsborough who did not fear for own safety but witnessed relatives/friends in danger or those not at the ground at time but suffered psychiatric harm after finding out about disaster or identifying dead bodies were secondary victims
Is the reasonable fear of physical safety an objective or subjective test?
Objective - i.e. C cannot claim to be in fear of own safety when they objectively were not
What is an actual victim and how do they fit into the principles of psychiatric harm?
Actual different to primary and secondary!
- Actual victim suffers 1) physical harm or 2) physical harm and psychiatric harm
- Where actual victim has suffered physical injury caused by negligence of another and psychiatric injury as a result, there is no need to consider claim for psychiatric injury separately; will be addressed as part of remoteness
If a primary victim suffers physical injury, they are an actual victim
Where physical injury reasonably foreseeable C can recover for psych injury
Are rescuers given a special status in psychiatric injury law?
No - must be classified as a primary or secondary victim in accordance with the standard rules
- Firefighter in rescue attempt subject to physical injury = primary victim
- Police officers on duty during Hillsborough who assisted removing dead bodies and suffered PTSD = secondary victim
What is the test for duty of care for primary victims?
D’s POV
D must have reasonably foreseen that C might suffer physical injury as a result of their negligence
Normal principles for determining DOC will then apply
Will liability arise for fear, distress or mental grief?
No - claims of psychiatric harm will only succeed if C has suffered a medically recognised psychiatric illness (e.g. depression) or a shock-induced physical condition (e.g. miscarriage, heart attack)
Hinz - C and children watched father of family die - C claimed damages for grief and sorrow, worry about how children would cope and financial strain as a widow - but could only successfully claim for depression caused by shock of witnessing accident
Does psychiatric harm need to be reasonably foreseeable for primary victims?
No - only physical injury needs to be reasonably foreseeable. Would then be sufficient to recover for damages for psychiatric harm (even though not physically hurt!) - no need to foresee psychiatric harm!
Does the thin skull rule apply in the case of primary victims?
Yes - C can suffer psychiatric injury to a greater extent due to a pre-existing condition
How are the rules of proximity and fair, just and reasonable applied?
Likely to be relatively straightforward
- Geographical proximity because primary victim was at traumatic event
- If D negligently and foreseeably puts C in fear of own safety it is likely courts will find it fair, just and reasonable to impose DOC for any psychiatric damage caused as result
Summary
What is the process for primary victims in establishing a DOC for psychiatric injury?
- Identify the loss (must be medically recognised or shock-induced physical condition)
- Identify C as primary victim
- Was physical injury reasonably foreseeable as a result of D’s negligence? If yes…
- Use precedent if available, if not consider proximity and FJ&R
What is the test for a duty of care for secondary victims?
The Alcock criteria - 4 conditions
All the following must be satisfied:
- Psychiatric harm must be reasonably foreseeable
- Proximity of relationship between C and ‘the victim’ (the victim = person for whose safety C feared due to D’s negligence)
- Proximity in time and space
- The injury must be the result of sudden shock
Alcock - negligent police meant 96 people crushed to death and 400+ physically injured - 1000s of people watched on live TV and listened on radio and potential number of psychiatric claims was huge - claims brought by various relatives/friends present at ground/witnessed on media, none of whom had been within foreseeable range of physical injury, argued they had suffereed psychiatric harm as a result of what they saw/feared would happen to relevaites/friends - no DOC owed to any Cs as they lacked proximity of relationship and/or proximity of time and space
What does it mean for psychiatric harm to be reasonably foreseeable?
Reasonably foreseeable in a person of ordinary fortitude in same circumstances
Cf with primary victim - only physical injury must be foreseeable
Bourhill - D motorcyclist crashed and killed himself by negligence - pregnant C did not see crash but heard and later saw blood on road - suffered shock-induced still birth - no DOC owed to C; was not foreseeable that someone in C’s postiion of normal fortitude would suffer psychiatric harm
Summary
What is the process for secondary victims in establishing a DOC for psychiatric injury?
- Was psychiatric harm reasonably foreseeable?
- Is there proximity of relationship between C and ‘the victim’?
- Is there proximity in time and space?
- Was psychiatric harm shock-induced?
- (Is it FJ+R to impose a duty of care?)
Psychiatric harm must also be medically recognised/result of shock-induced physical condition (as with primary victim)
