Psychiatric Harm

Question 1

What policy reasons have meant limitations being placed on the recovery of pure psychiatric harm?

Answer 1

• Floodgates
• Fraudulent claims
• Crushing liability
• Effect of increased availability of compensation on potential claimants

Question 2

What is psychiatric harm?

Answer 2

Form of psychiatric illness that the claimant has suffered as a result of the perception of traumatic events.

Psychiatric harm must either be:

• a medically recognised psychiatric illness or
• shock-induced physical condition (such as heart attack)

Question 3

To bring a claim for psychiatric harm, what three categories of victims can potentially claim?

Answer 3

• actual victim
• primary victim
• secondary victim

Question 4

Is a claimant is an actual victim ie suffered physical harm because of D’s negligence what is their position in relation to psychiatric harm?

Answer 4

Psychiatric injury does not need to be considered separately. It will be considered as part of remoteness.

So long as the physical injury is reasonably foreseeable, a claimant will also be able to recover for psychiatric injury

Question 5

Who is a primary victim in relation to psychiatric harm?

Answer 5

Someone who suffers psychiatric harm as a result of reasonable fear for their own physical safety. They are involved in the traumatic event are therefore in the area of danger.

Question 6

Does the primary victim suffer physical injury too?

Answer 6

The primary victim does not suffer physical injury - if they did they would be an actual victim and bring a normal personal injury claim with consequential psychiatric injury.

Question 7

Who is a secondary victim?

Answer 7

Someone who suffers psychiatric harm due to fear for someone else’s safety, normally a close relative. They are not in fear for their own physical safety. They witness the traumatic event or its immediate aftermath and suffer psychiatric harm as a result but are not involved in the event/ area of danger.

Question 8

What is the law in relation to bystander and rescuers and psychiatric harm?

Answer 8

No special status. Must either be classified as a primary or secondary victim.

Question 9

What is the test for duty of care owed to a primary victim?

Answer 9

Defendant must reasonably have foreseen that the claimant might suffer physical injury as a result of their negligence - if physical injury is foreseeable to the claimant then no need to foresee psychiatric damage as well

Question 10

What kind of loss is required for a secondary victim?

Answer 10

Musty be of a kind recognised in law which are medically recognised psychiatric illness or a shock-induced physical condition (eg miscarriage or heart attach).

The psychiatric illness or shock-induced physical condition must be material.

Fear, distress or mental grief caused by negligence will not be enough

Question 11

Does the thin skull rule apply to cases of psychiatric harm for primary victims?

Answer 11

Yes - provided that physical injury is reasonably foreseeable, D is liable for the full extent of the psychiatric harm, even if the claimant suffered to a greater extent as a result of a pre-existing condition

Question 12

If the court is unable to rely on precedent for imposing duty of care in relation to psychiatric harm caused to a primary victim, what must it establish?

Answer 12

That it is fair, just and reasonable to impose liability

Question 13

Why in the case of primary victims is it normally not a problem to establish that it is fair, just and reasonable to impose a duty of care?

Answer 13

• primary victim is always present at the traumatic event so there is always geographical proximity between the claimant and defendant
• if the defendant negligently and foreseeable puts the claimant in fear of their safety, it is likely that the court will find it fair, just and reasonable to impose a duty of care for any psychiatric damage caused as a result

Question 14

What is the first thing that should be established in relation of a duty of care to secondary victims?

Answer 14

That the psychiatric harm complained of is medically recognised or a shock-induced condition

Question 15

What is the Alcock criteria that must be satisfied for a duty of care to be owed to secondary victims?

Answer 15

1. Psychiatric harm must be reasonably foreseeable
2. Proximity of relationship between the claimant and the ‘victim’
3. Proximity in time and space; - must be at the scene or immediate aftermath - and
4. The injury must be the result of sudden shock

Question 16

What is required for the condition that the psychiatric harm must be reasonably foreseeable for a duty of care to be met in relation to secondary victims?

Answer 16

Psychiatric harm must be reasonably foreseeable in a person of ordinary fortitude in the same circumstances

Question 17

How does the thin skull rule come into play in relation to secondary victims?

Answer 17

Once it is established that a person of normal fortitude might have suffered psychiatric illness, the normal ‘thin skull’ rule (meaning you take your victim as you find them) is applicable, so that if psychiatric harm is foreseeable, the claimant can recover damages for all psychiatric harm they suffer, even if they have suffered to a greater extent than could have been foreseen because of a predisposition to mental illness

Question 18

What is required for the condition that there is a proximity of relationship between the claimant and the victim to be met in relation to secondary victims?

Answer 18

There must be a relation of close ties of love and affection between the claimant and the victim

Question 19

When is there a rebuttable presumption of close ties of love and affection between the claimant and the victim in relation to establishing proximity between the claimant and the victim?

Answer 19

In cases of parent/child, husband/wife and engaged couples - no one outside has successfully argued close ties

Question 20

When might a stranger who does not have a relationship of close ties of love and affection with the victim, nevertheless be able to bring a successful claim as a secondary victim?

Answer 20

Case law suggests when the accident is particularly horrific such as witnessing an out-of-control petrol tanker crash into a school

Never happened in case law yet

Question 21

Will the secondary victim be able to succeed if the actual victim whose safety they feared for is the defendant in the case?

Answer 21

No

Question 22

What is required for the condition that there is a proximity of relationship between the claimant and the victim to be met in relation to secondary victims?

Answer 22

The claimant must be present at the scene of the accident or its immediate aftermath and the claimant must see or hear the accident or its immediate aftermath with their own senses

Question 23

What has and has not counted as the immediate aftermath of an event in relation to the condition for the condition that there is a proximity of relationship between the claimant and the victim to be met in relation to secondary victims?

Answer 23

• mother arriving at hospital two hours after accident counted
• brother-in-law identifying deceased eight hours after accident was not enough

Question 24

Will duty be owed to a secondary victim who is merely told about about a shocking event (including via newspaper, radio or television)?

Answer 24

No

Question 25

In Alcock, when was it suggested it may be possible for television broadcast to amount to sufficient proximity between the secondary victim and accident?

Answer 25

Where live television broadcast where it is clear the victims had died.

Eg hot-air balloon carrying children were to explode on television and this was being watched on the television by the children’s parents

Question 26

What is required for the condition that the injury must be the result of sudden shock to be met in relation to secondary victims?

Answer 26

The claimant’s psychiatric harm must be a ‘reaction to the immediate and horrifying impact’ of the event and a sudden assault on the nervous system’ rather than a gradual realisation of what has happened

Question 27

What has and has not counted as a injury arising from result of sudden shock?

Answer 27

• negligent medical treatment that took place over 36 hours which was deemed to constitute one horrifying event and counted
• negligent medical treatment that was over two weeks was not deemed to have counted

Question 28

Does it also have to be fair, just and reasonable to impose a duty of care in relation to secondary victims? What will the courts consider here?

Answer 28

Yes.

Courts will consider policy considerations here such as floodgates, crushing liability, the risk of fraudulent claims and evidential difficulties

Question 29

When may liability be imposed for psychiatric harm when the victim is neither an actual victim, primary victim, and secondary victim?

Answer 29

In cases of assumption of responsibility - defendant will owe a claimant a duty of care not to cause psychiatric harm where the defendant has assumed responsibility to ensure that the claimant avoids reasonably foreseeable psychiatric harm

Question 30

What relationships may give rise to assumption of responsibility cases?

Answer 30

• employer/employee,
• doctor/patient and
• police/police informant

Question 31

When will an employer be in breach of the duty for occupational stress claims?

Answer 31

(1) Psychiatric harm to the claimant was (or ought to have been) reasonably foreseeable to the employer;

(2) 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. Was the workload much more than normal for that job, was the work particularly emotionally or intellectually demanding etc;

(b) Signs of stress. Indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise they should do something; 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. What steps could and should the employer have taken.

Once this ‘threshold’ is crossed, it is immaterial whether a person of ordinary fortitude would have suffered the harm.