Psychiatric Harm Flashcards
What policy reasons have meant limitations being placed on the recovery of pure psychiatric harm?
- Floodgates
- Fraudulent claims
- Crushing liability
- Effect of increased availability of compensation on potential claimants
What is psychiatric harm?
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)
To bring a claim for psychiatric harm, what three categories of victims can potentially claim?
- actual victim
- primary victim
- secondary victim
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?
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
Who is a primary victim in relation to psychiatric harm?
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.
Does the primary victim suffer physical injury too?
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.
Who is a secondary victim?
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.
What is the law in relation to bystander and rescuers and psychiatric harm?
No special status. Must either be classified as a primary or secondary victim.
What is the test for duty of care owed to a primary victim?
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
What kind of loss is required for a secondary victim?
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
Does the thin skull rule apply to cases of psychiatric harm for primary victims?
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
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?
That it is fair, just and reasonable to impose liability
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?
- 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
What is the first thing that should be established in relation of a duty of care to secondary victims?
That the psychiatric harm complained of is medically recognised or a shock-induced condition
What is the Alcock criteria that must be satisfied for a duty of care to be owed to secondary victims?
- Psychiatric harm must be reasonably foreseeable
- Proximity of relationship between the claimant and the ‘victim’
- Proximity in time and space; - must be at the scene or immediate aftermath - and
- The injury must be the result of sudden shock
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?
Psychiatric harm must be reasonably foreseeable in a person of ordinary fortitude in the same circumstances
How does the thin skull rule come into play in relation to secondary victims?
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
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?
There must be a relation of close ties of love and affection between the claimant and the victim
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?
In cases of parent/child, husband/wife and engaged couples - no one outside has successfully argued close ties
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?
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
Will the secondary victim be able to succeed if the actual victim whose safety they feared for is the defendant in the case?
No
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?
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
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?
- mother arriving at hospital two hours after accident counted
- brother-in-law identifying deceased eight hours after accident was not enough
Will duty be owed to a secondary victim who is merely told about about a shocking event (including via newspaper, radio or television)?
No
