Psychiatric Harm Flashcards
A witness sees the immediate aftermath of a car accident and sees someone screaming in pain and covered in blood. As a result, the witness develops post-traumatic stress disorder. Which of the following is correct?
(a)
The witness is not a secondary victim as they did not witness the accident.
(b)
The witness is a secondary victim.
(c)
The witness is a bystander and is therefore a primary victim.
(d)
The witness is a primary victim.
(e)
The witness is an actual victim.
(b) The witness is a secondary victim.
The witness has suffered psychiatric harm due to fear for someone else’s safety. They witnessed the immediate aftermath of the traumatic event but were not in the foreseeable range of physical injury.
A neighbour notices their elderly neighbour’s house is on fire. Despite all the smoke, the neighbour can just about see that their elderly neighbour is fast asleep downstairs. The neighbour breaks into the house to rescue the elderly neighbour. Following the rescue, the neighbour suffers respiratory failure due to inhalation of smoke and also suffers clinical depression. Which of the following is correct?
(a)
The neighbour is a rescuer and is therefore a secondary victim.
(b)
The neighbour is a rescuer and is therefore a primary victim.
(c)
The neighbour is an actual victim.
(d)
The neighbour is a secondary victim.
(e)
The neighbour is a primary victim.
(c) The neighbour is an actual victim.
The neighbour is an actual victim as they have suffered physical injury (respiratory failure) as well as psychiatric harm.
The organisers of a rugby match negligently let too many people into the stadium and people start getting crushed against the barriers. The rugby match is being broadcast live on television and although individuals cannot be identified, those watching on television can see that some people are being crushed against the barrier. A mother is watching the game on television and knows her son is at the game. Following the event, the mother suffers from post-traumatic stress disorder.
Which of the following is correct?
(a)
The mother is a secondary victim. It will be hard for the mother’s claim to succeed as the courts will be concerned about opening the floodgates and crushing liability.
(b)
The mother is a secondary victim because she saw the event on television. It will be hard for her claim to succeed as the courts will be concerned about opening the floodgates and crushing liability.
(c)
The mother is a primary victim because her son was at the event. It will be hard for her claim to succeed as the courts will be concerned about opening the floodgates and crushing liability.
(d)
The mother is a primary victim. It will be hard for her claim to succeed as the courts will be concerned about opening the floodgates and crushing liability.
(e)
The mother is an actual victim. It will be hard for the mother’s claim to succeed as the courts will be concerned about opening the floodgates and crushing liability.
(a) The mother is a secondary victim. It will be hard for the mother’s claim to succeed as the courts will be concerned about opening the floodgates and crushing liability.
The mother is a secondary victim as she has suffered psychiatric harm as a result of being in fear for someone else’s safety.
It is hard for secondary victim claims to succeed. Some of the policy reasons behind this include fear of the floodgates opening and crushing liability. For example, if the mother were able to claim against the organisers, this would lead to a significant increase in the class of claimants who could recover for psychiatric harm (i.e. anyone who witnesses a traumatic event on television and suffers psychiatric harm). This in turn would lead to crushing liability on behalf of the defendant who could be faced with thousands of claims.
An elderly woman got trapped in an overcrowded lift for three hours. In the lift she became upset and tearful as a result of being trapped. Following the incident, the elderly woman had difficulty sleeping and suffered nightmares for several days. Which of the following is correct?
(a)
It is very unlikely the woman can claim damages for upset and nightmares.
(b)
The woman can claim for her nightmares but not her tearfulness and upset.
(c)
The woman can claim for her tearfulness and upset but not the nightmares.
(d)
As an actual victim, the woman is likely to succeed in claiming for upset and nightmares.
(e) As a primary victim, the woman is likely to succeed in claiming damages for upset and nightmares.
(a) It is very unlikely the woman can claim damages for upset and nightmares.
Claimants can only recover damages for medically recognised psychiatric harm. It is highly unlikely that upset and nightmares will be recognised as psychiatric harm. This reaction would be a normal emotion in the face of an unpleasant experience
A man notices his elderly neighbour’s house is on fire. Despite all the smoke, he can just about see that his neighbour is fast asleep downstairs. The man breaks into the house to rescue his neighbour. Following the rescue, he suffers clinical depression. It transpires that the neighbour’s electrician negligently started the fire. Which of the following is correct?
(a)
The man is a rescuer and could therefore be owed a duty of care.
(b)
A duty of care would not be owed as psychiatric injury was not reasonably foreseeable as a result of the defendant’s negligence.
(c)
A duty of care would not be owed as physical injury was not reasonably foreseeable as a result of the defendant’s negligence.
(d)
A duty of care could be owed as psychiatric injury was reasonably foreseeable as a result of the defendant’s negligence.
(e)
A duty of care could be owed as physical injury was reasonably foreseeable as a result of the defendant’s negligence.
(e) A duty of care could be owed as physical injury was reasonably foreseeable as a result of the defendant’s negligence.
It is reasonably foreseeable to an electrician that if they negligently start a fire in someone’s house, somebody could suffer physical injury. As the ‘rescuer’ is a primary victim, only physical injury needs to be foreseeable not psychiatric injury in order to establish a duty of care.
A man was working at an oil storage facility when there was a huge explosion resulting in a fire. The fire was confined to a building one kilometre from where the man was working, but he still feared for his safety. Following the event, he suffered from post-traumatic stress disorder.
Which of the following is correct?
(a)
The man will not be classified as a primary victim because he was not physically injured.
(b)
The man will not be classified as a primary victim because he did not reasonably fear for his own safety.
(c)
The man will be classified as a primary victim as he feared for his own safety.
(d) The man will not be classified as a primary victim because he did not fear for anyone else’s safety.
(e)
The man will be classified as a primary victim as he was in the danger zone.
(b) The man will not be classified as a primary victim because he did not reasonably fear for his own safety.
A primary victim is a person who suffers psychiatric harm as a result of reasonably fearing for their own safety. The test is objective not subjective. A reasonable person would not fear for their own safety if the fire was one kilometre away.
Sandra and her aunt Patricia go for a haircut and colour. The hairdresser uses the wrong hair dye on Sandra which causes a severe burning rash and Sandra’s skin starts to peel away. Patricia is so upset when she sees Sandra’s skin peeling away that she cannot stop thinking about it several weeks later. Patricia is later diagnosed with post-traumatic stress disorder.
Which one of the following is correct?
(a)
Patricia is an actual victim. Her claim will fail due to insufficient ties of love and affection with Sandra.
(b)
Patricia is a secondary victim. Her claim will likely succeed as psychiatric harm was reasonably foreseeable as a result of the defendant’s negligence.
(c)
Patricia is a primary victim. Her claim will fail due to insufficient ties of love and affection with Sandra.
(d)
Patricia is a secondary victim. Her claim will likely fail due to insufficient ties of love and affection with Sandra.
(e)
Patricia is a secondary victim. Her claim will likely succeed as she witnessed the traumatic event with her own unaided senses.
(d) Patricia is a secondary victim. Her claim will likely fail due to insufficient ties of love and affection with Sandra.
Patricia is a secondary victim as she has suffered psychiatric harm as a result of fearing for someone else’s safety. It is likely that her claim would fail as she may not have close ties of love and affection with Sandra (second stage of the Alcock criteria when establishing duty of care). However, of course, we would need to know more about their relationship to be sure, but the aunt/niece relationship does not fall within one of the relationships where there is a rebuttable presumption of close ties of love and affection.
Bart goes to the local go-kart track to take part in a race. One of the other competitors loses concentration and swerves into Bart’s go-kart at high speed. This causes Bart’s go-kart to flip upside down. Bart’s stepmother, Fatima, who has lived with and cared for Bart since he was five, is also at the track. At the time of the accident, she was in the nearby car park. On her way back to the track, Fatima hears a message over the loudspeakers indicating that there has been a serious accident. Worried, Fatima runs over to the track. By the time she arrives, Bart has just been taken to hospital. Fatima drives over to the hospital immediately and sees Bart screaming in pain, covered in dirt and blood. As a result of fearing for Bart, Fatima suffers from clinical depression.
Which one of the following statements best explainsthe legal position in the tort of negligence?
(a)
As a secondary victim, Fatima must have been within the foreseeable range of physical injury.
(b)
As a primary victim, Fatima must establish that personal injury to her was reasonably foreseeable.
(c)
As a secondary victim, Fatima should be able to prove that she has close ties of love and affection with Bart, but it will be harder for her to prove that she satisfies the requirement of proximity in terms of time and space.
(d)
Fatima is a secondary victim and her claim is unlikely to succeed because she will be unable to prove close ties of love and affection with Bart, and unable to prove that she had proximity in terms of time and space.
(e)
As a primary victim, Fatima must establish that psychiatric harm was reasonably foreseeable.
(c) As a secondary victim, Fatima should be able to prove that she has close ties of love and affection with Bart, but it will be harder for her to prove that she satisfies the requirement of proximity in terms of time and space.
Fatima is a secondary victim as she has suffered psychiatric harm as a result of fearing for someone else’s safety. She will need to satisfy the Alcock criteria in order to establish a duty of care. Two out of the four criteria are mentioned in this answer. Fatima would have to prove that she has close ties of love and affection with Bart. Although Fatima does not fall within one of the relationships where there is a rebuttable presumption of close ties of love and affection, she is Bart’s stepmother. The courts are likely to extend the relationship of parent to include stepmothers if she has a close relationship with Bart.
It will be harder for Fatima to satisfy the requirement of proximity in terms of time and space, but she might be able to. She would have to prove that she came across the immediate aftermath and the courts will therefore be interested in how long after the event she arrived at the hospital and exactly what she saw when she did arrive.
A company is testing a racing car. The driver’s wife watches the test drive from the stands. Due to the company’s negligence, the car crashes and the driver suffers extensive burns. His wife watches the whole incident. She subsequently suffers from Post-Traumatic Stress Disorder.
Which of the following best describes whether the company owes the wife a duty of care?
(a) The wife is an actual victim. The company owes her a duty of care because they employed her husband to drive the racing car.
(b)
The wife is a primary victim. The company owes her a duty of care because the Caparo criteria are satisfied, i.e. physical injury was reasonably foreseeable, there was proximity between the parties and it is fair, just and reasonable to impose a duty.
(c)
The wife is a primary victim. The company owes her a duty of care because the Alcock criteria are satisfied, i.e. psychiatric harm in a person of ordinary fortitude was reasonably foreseeable, there was proximity of relationship between the woman and the victim, there was proximity in time and space, the woman’s injury is the result of a sudden shock and it is fair, just and reasonable to impose a duty.
(d)
The wife is a secondary victim. The company owes her a duty of care because the Caparo criteria are satisfied, i.e. physical injury was reasonably foreseeable, there was proximity between the parties and it is fair, just and reasonable to impose a duty.
(e)
The wife is a secondary victim. The company owes her a duty of care because the Alcock criteria are satisfied, i.e. psychiatric harm in a person of ordinary fortitude was reasonably foreseeable, there was proximity of relationship between the woman and the victim, there was proximity in time and space, the woman’s injury is the result of a sudden shock and it is fair, just and reasonable to impose a duty.
(e) The wife is a secondary victim. The company owes her a duty of care because the Alcock criteria are satisfied, i.e. psychiatric harm in a person of ordinary fortitude was reasonably foreseeable, there was proximity of relationship between the woman and the victim, there was proximity in time and space, the woman’s injury is the result of a sudden shock and it is fair, just and reasonable to impose a duty.
This answer correctly identifies the wife as a secondary victim and sets out the Alcock criteria for establishing if a duty of care is owed. The other answers might seem plausible but they are each incorrect. The wife is not an actual victim as she has not suffered any physical injury nor would she be owed a duty just because her husband was employed by the company. The wife is not a primary victim as she was never in reasonable fear of her own safety. Finally, where the claimant is a secondary victim, it is the Alcock criteria (not Caparo) that is used to establish duty of care.
Which of the following is NOT part of the Alcock criteria?
(a)
Psychiatric harm must be reasonably foreseeable in a person of ordinary fortitude.
(b)
The psychiatric harm must be shock induced.
(c)
There must be proximity of relationship between the claimant and the victim.
(d)
There must be proximity in time and space to the accident or its immediate aftermath.
(e)
Physical injury must be reasonably foreseeable in a person of ordinary fortitude.
(e) Physical injury must be reasonably foreseeable in a person of ordinary fortitude.
A secondary victim must prove that psychiatric harm was reasonably foreseeable, not just physical injury. This acts as a control device to limit the number of potential claimants who can claim for psychiatric harm.
Noah worked as a teacher at a school. He worked around 70 hours per week. Six months ago, he spoke to the headteacher about his workload and explained that he was not coping well. The following day he was signed off work by his GP for three weeks due to stress and depression. On return to work, Noah explained to the headteacher that he was not coping with his workload and it was becoming detrimental to his health. Two months later he lost control in the classroom and shouted at the students. He left the school and has not returned to work. He has been signed off work with depression by his GP.
Which of the following statements is most accurate?
(a)
Noah will be unable to establish a duty of care as psychiatric harm was not reasonably foreseeable.
(b)
The school owed Noah a duty of care in respect of psychiatric harm caused by stress at work. It is likely that the school is in breach of this duty as psychiatric harm was reasonably foreseeable; he had three weeks off work for depression and two meetings with the headteacher.
(c)
The school owed Noah a duty of care in respect of psychiatric harm caused by stress at work. It is unlikely that the school is in breach of this duty as although psychiatric harm was reasonably foreseeable, other teachers at the school probably work 70 hours per week and do not suffer from stress.
(d)
Noah is not an actual, primary or secondary victim and therefore has no claim.
(e)
The school owed Noah a duty of care in respect of psychiatric harm caused by stress at work. It is unlikely that the school is in breach of this duty as psychiatric harm was not reasonably foreseeable; Noah never said he was going to suffer a nervous breakdown/depression.
(b) The school owed Noah a duty of care in respect of psychiatric harm caused by stress at work. It is likely that the school is in breach of this duty as psychiatric harm was reasonably foreseeable; he had three weeks off work for depression and two meetings with the headteacher.
There is a precedent establishing that employers owe their employees a duty of care in respect of psychiatric harm caused by stress at work. For Noah to show breach of duty, he must prove the following:
Psychiatric harm to the claimant was (or ought to have been) reasonably foreseeable to the employer. Psychiatric harm was foreseeable given the reasons below;
Foreseeability depends upon the relationship between the characteristics of the claimant and the requirements made of them by the employer, including:
(a) The nature and extent of the work being undertaken. Seventy hours per week suggests Noah was working longer hours than the ‘normal’ teacher given the average working week is 40 hours;
(b) Signs of stress shown by the claimant. Noah had shown signs of impending harm to his health which would have been plain enough for any reasonable employer to realise they should do something: he had been signed off work for three weeks with stress and depression and had had two conversations with the headteacher about his workload; and
(c) The size and scope of the business and availability of resources. This includes the interests of other employees and the need to treat them fairly. Always consider the steps which the employer could and should have taken. The school most likely could have employed someone else to help reduce Noah’s workload.
To establish breach in occupational stress claims, psychiatric harm to the claimant must be reasonably foreseeable to the employer. What factors do the court take into account to assess whether psychiatric harm was reasonably foreseeable?
(a)
The nature and extent of the work being undertaken; whether the claimant had previously suffered a nervous breakdown; and the size and scope of the business and availability of resources.
(b)
Signs of stress from the claimant; and the size and scope of the business and availability of resources.
(c)
The nature and extent of the work being undertaken; whether the claimant informed the employer that they were suffering from stress; and the size and scope of the business and availability of resources.
(d)
The nature and extent of the work being undertaken; and signs of stress from the claimant.
(e)
The nature and extent of the work being undertaken; signs of stress from the claimant; and the size and scope of the business and availability of resources.
(e) The nature and extent of the work being undertaken; signs of stress from the claimant; and the size and scope of the business and availability of resources.
What are the policy arguments for restricting claims for negligently inflicted pure psychiatric harm?
- Floodgates: Significant increase in class of Cs who could recover
- Fraudulent claims: Historically courts have been wary of psychiatric harm as there is perception that such harm is easier to ‘fake’ than physical injury bc of diagnostic uncertainty. Courts worry about Cs making fraudulent or exaggerated claims which could not be adequately checked or controlled.
- Crushing liability: Imposing damages out of all proportion to negligent conduct eg consider liability of negligent driver if anyone who witnessed accident could claim for psychiatric harm caused
- Effect of increased availability of potential Cs
What is the definition of psychiatric harm?
Psychiatric harm must be either:
(a) Medically recognised psychiatric illness or
(b) Shock-induced physical condition eg heart attack
What is a primary victim?
- Someone who suffers psychiatric harm as result of reasonable fear for their own physical safety - objective test
- Involved in traumatic event and are in area of danger
- Primary victim does not suffer physical injury - if they do, they are actual vic and would bring ordinary negligence action for personal injury (and consequential psychiatric injury)
