Psychiatric Harm Flashcards
What is policy?
The non legal considerations underpinning legal decisions.
What is psychiatric harm?
A type of loss under negligence claims.
Psychiatric harm is form of psychiatric illness that the claimant has suffered as a result of the perception of traumatic events. ‘Nervous shock’ is a commonly used label to describe these cases. The psychiatric harm must be either a) a medically recognised psychiatric illness; or b) a shock-induced physical condition (such as a heart attack).
Must be a medically recognised or shock-induced physical condition.
PTSD, clinical depression are recognised
But grief and isolated flashbacks are not.
Question is decided by reference to precedent and by medical evidence.
Who is a primary victim?
Someone who suffers psychiatric harm as a result of reasonable fear for their own physical safety (objective test). They are involved in the traumatic event and are therefore in the area of danger.
Primary victim does not suffer physical 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/in the area of danger.
Who is an actual victim?
An actual victim is a person who has suffered physical harm only OR physical harm and psychiatric harm.
What kind of victims are bystanders and rescuers?
Bystanders and rescuers are not given any special status in this area of law. They are classified as actual, primary or secondary victims in the ordinary way?
What is the test for duty of care for primary victims?
The defendant must reasonably have foreseen that the claimant might suffer physical injury as a result of their negligence.
No need to foresee psychiatric damage as well.
If physical injury is reasonably foreseeable, the courts will apply the normal principles for determining the existence of a duty of care.
ie existing precedent? Caparo
What is the test for duty of care for Secondary victims?
Psychiatric harm must be medically recognised or a shock-induced physical condition. The test is the Alcock criteria.
a) Psychiatric harm must be reasonably foreseeable
b) Proximity of relationship between the claimant and ‘the victim’; and
c) Proximity in time and space to the accident
What is the Alcock Criteria Test?
Test for if a secondary victim can bring a claim:
a) Psychiatric harm must be reasonably foreseeable in a person of ordinary fortitude in the same circumstances - but once established level of harm depends on the circumstances
b) proximity of relationship between claimant and victim: must have a relationship of close ties and affection - rebuttable presumption for parent/child, husband/wife and engaged couples (not presumed for grandparents or siblings)
c) proximity in time and space to the accident: claimant must have been present at the accident or its immediate aftermath, and the claimant must have seen or heard the accident or its immediate aftermath with its own senses. - can include immediately after at the hospital in the same state
Can you claim as a secondary victim for a medical crisis?
No. A doctor does not owe those who witness a ‘medical crisis’ a duty of care.
Accidents are different than medical crisis cases.
What are the Paul principles which clarify Alcock?
- A doctor does not owe those who witness a medical crisis a duty of care
- There is a distinction between ‘accident’ cases and ‘medical crisis’ cases
- For a secondary victim to recover damages, they must be present at the scene of the accident or its immediate aftermath
- No requirement that the psychiatric injury must have been caused by a sudden shock to the nervous system
- The accident need not be horrifying
- A gap in time between the defendant’s breach and the accident will not bar recovery, what mattered was the claimant’s proximity in time and space to the accident
What is an ‘occupational stress case’
Cases involving occupational stress claims where psychiatric harm is caused by the stress of work.
An employer owes their employees a duty of care in respect of psychiatric harm caused by stress at work.
What are the guidelines for finding breach in occupational stress claims?
- Whether psychiatric harm was reasonably foreseeable to the claimant
- Foreseeability depends upon the relationship between the characteristics the claimant of the claimant and the requirements made by the employer, including:
a) nature and extent of work being undertaken
b) signs of stress
c) the size and scope of the business and availability of resources
