Psychiatric injury Flashcards
What are the key elements in establishing a primary victim claim for psychiatric harm?
The key elements in establishing a primary victim claim for psychiatric harm include identifying the parties involved, identifying the loss suffered, and establishing that the claimant is a primary victim. Additionally, it must be determined whether physical injury was reasonably foreseeable as a result of the defendant’s negligence and if a duty of care is owed based on existing precedents or by analogy with existing cases.
What are the Alcock criteria used to determine if a duty of care is owed to a secondary victim?
The Alcock criteria are used to determine if a duty of care is owed to a secondary victim. The criteria include: (1) Was psychiatric harm reasonably foreseeable? (2) Is there proximity of relationship between the claimant and the victim? (3) Is there proximity in time and space to the accident or its immediate aftermath? (4) Was the psychiatric harm shock-induced?
What is the distinction between a primary victim and a secondary victim in the context of psychiatric harm?
A primary victim is someone who suffers psychiatric harm as a result of reasonable fear for their own physical safety. They are involved in the traumatic event and are in the area of danger. On the other hand, a secondary victim suffers psychiatric harm due to fear for someone else’s safety, typically a close relative. They witness the traumatic event or its immediate aftermath but are not in the danger zone.
What are ‘assumption of responsibility’ cases in relation to psychiatric harm?
‘Assumption of responsibility’ cases refer to situations where a defendant owes a claimant a duty of care not to cause psychiatric harm because the defendant has ‘assumed responsibility’ to ensure that the claimant avoids reasonably foreseeable psychiatric harm. Examples include employer/employee, doctor/patient, and police/police informant relationships.
What is the key definition of psychiatric harm?
Psychiatric harm, in this context, refers to a form of psychiatric illness that the claimant has suffered as a result of the perception of traumatic events. It can be either a medically recognized psychiatric illness or a shock-induced physical condition.
What is the difference between an actual victim, a primary victim, and a secondary victim?
An actual victim is a person who has suffered physical harm and possibly psychiatric harm. A primary victim is someone who suffers psychiatric harm as a result of being in reasonable fear for their own physical safety. A secondary victim is someone who suffers psychiatric harm due to fear for someone else’s safety. Secondary victims are not in the danger zone.
What factors are considered in determining if a duty of care is owed to a primary victim?
To determine if a duty of care is owed to a primary victim, factors such as whether physical harm was reasonably foreseeable and the relationship between the characteristics of the claimant and the requirements made of them by the defendant are considered. Signs of stress and the size and scope of the business and availability of resources are also taken into account.
What are some examples of cases involving secondary victims and the application of the Alcock criteria?
One example is the Hillsborough stadium disaster case (Alcock v Chief Constable of South Yorkshire), where claims were brought by relatives and friends of the victims who witnessed the tragedy on live television or heard about it on the radio. The court held that the claimants did not meet the proximity of relationship and proximity in time and space criteria. Another example is the McLoughlin v O’Brien case, where a mother witnessed the immediate aftermath of a car accident involving her family members and successfully claimed for psychiatric harm.
What is the significance of the requirement for a sudden shock in secondary victim claims?
The requirement for a sudden shock in secondary victim claims is important because it distinguishes between cases where the psychiatric harm is a reaction to an immediate and horrifying impact and cases where the harm develops gradually over time. The courts have held that a psychiatric illness caused by a sudden shock is more likely to meet the criteria for a secondary victim claim, while gradual realizations of what has happened are less likely to satisfy the criteria.
What factors are considered when determining whether it is fair, just, and reasonable to impose a duty of care in secondary victim claims?
When determining whether it is fair, just, and reasonable to impose a duty of care in secondary victim claims, factors such as policy considerations, including floodgates, crushing liability, the risk of fraudulent claims, and evidential difficulties, are taken into account. The court aims to strike a balance between allowing legitimate claims and preventing an excessive number of potential claimants.
What is the ‘thin skull’ rule in relation to primary victims of psychiatric harm?
The ‘thin skull’ rule states that if physical injury is reasonably foreseeable, the defendant is liable for the full extent of the psychiatric harm, even if the claimant has suffered to a greater extent due to a pre-existing condition. This rule should be discussed under remoteness in the general negligence sequence.
How do the courts determine proximity and fairness in establishing a duty of care for primary victims of psychiatric harm?
If physical injury is held to be reasonably foreseeable, the courts will apply the normal principles for determining the existence of a duty of care. Proximity and fairness are likely to be relatively straightforward in these cases, as the primary victim is always present at the traumatic event, ensuring geographical proximity between the claimant and defendant. If the defendant negligently puts the claimant in fear of their safety, it is likely that the courts will find it fair, just, and reasonable to impose a duty of care for any resulting psychiatric damage.
What is the significance of the requirement for a close tie of love and affection in secondary victim claims?
The requirement for a close tie of love and affection in secondary victim claims helps establish the proximity of relationship between the claimant and the victim. This requirement is rebuttably presumed in cases involving parent/child, husband/wife, and engaged couples. However, there is no such presumption for grandparent/grandchild or sibling relationships. The courts consider the nature of the relationship and whether there are close ties of love and affection on a case-by-case basis.
How do the courts treat bystanders and rescuers who have suffered psychiatric harm?
Bystanders and rescuers are not given any special status in the area of law concerning psychiatric harm. They are classified as either primary or secondary victims based on whether they feared for their own safety. If a rescuer or bystander suffers psychiatric harm due to fearing for their own safety, they will be considered a primary victim.
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?
The neighbour is an actual victim.
The neighbour is a rescuer and is therefore a secondary victim.
The neighbour is a secondary victim.
The neighbour is a primary victim.
The neighbour is a rescuer and is therefore a primary victim.
The neighbour is an actual victim.
This is the correct answer. The neighbour is an actual victim as they have suffered physical injury (respiratory failure) as well as psychiatric harm.
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?
The man is a rescuer and could therefore be owed a duty of care.
A duty of care could be owed as physical injury was reasonably foreseeable as a result of the defendant’s negligence.
A duty of care could be owed as psychiatric injury was reasonably foreseeable as a result of the defendant’s negligence.
A duty of care would not be owed as psychiatric injury was not reasonably foreseeable as a result of the defendant’s negligence.
A duty of care would not be owed as physical injury was not reasonably foreseeable as a result of the defendant’s negligence.
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?
The man will not be classified as a primary victim because he did not reasonably fear for his own safety.
The man will not be classified as a primary victim because he did not fear for anyone else’s safety.
The man will not be classified as a primary victim because he was not physically injured.
The man will be classified as a primary victim as he was in the danger zone.
The man will be classified as a primary victim as he feared for his own safety.
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.
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?
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.
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.
Noah is not an actual, primary or secondary victim and therefore has no claim.
Noah will be unable to establish a duty of care as psychiatric harm was not reasonably foreseeable.
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.
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?
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.
The organisers of a rugby match negligently let too many people into the stadium and people start getting crushed against the barriers. The match is broadcast live on television and although individuals cannot be identified, those watching on television can see people are being crushed against the barrier. A mother is watching the match on television and knows her son is at the game. It turns out her son was in the area of danger but was not physically harmed. Following the event, the son and mother suffer from post-traumatic stress disorder.
What type of victims are the mother and son in relation to a negligence claim causing psychiatric harm?
The son and mother are primary victims.
The son and mother are secondary victims.
The son is a primary victim and the mother a secondary victim.
The son and mother are actual victims.
The son is an actual victim and the mother is a primary victim.
The son is a primary victim and the mother a secondary victim.
The son is a primary victim as he has suffered psychiatric harm as a result of being in reasonable fear for his own safety. The mother is a secondary victim as she has suffered psychiatric harm as a result of being in fear for someone else’s safety. While the other answer options might sound plausible, they are incorrect. The son and mother are not actual victims as they have not suffered any physical injury. The mother is not a primary victim as she was never in reasonable fear of her own safety. The son is not a secondary victim as he did not fear for someone else’s safety and instead was in reasonable fear for his own safety.
Newlyweds leaving for their honeymoon are dropped off at the airport by their best man. Just after their arrival at the airport, it catches fire due to poor electrical maintenance. The best man hears about the fire on the radio in his car and is extremely distressed. The newlyweds escape unharmed, but three months later their best man is still suffering from nightmares.
Which of the reasons below is the best reason why a negligence claim brought by the best man against the airport would fail?
He did not suffer from a medically recognised psychiatric illness.
He did not witness the incident.
His distress was not reasonably foreseeable.
He did not fear for his own safety.
He was not related to the newlyweds.
He did not suffer from a medically recognised psychiatric illness.
Correct. In all claims for psychiatric harm a key criterion is that the claimant has suffered a medically recognised psychiatric illness; distress and nightmares are not medically recognised psychiatric illnesses.
A married couple are at a festival. The wife stays at the back of the crowd and the husband pushes to the front. Due to poor crowd control arrangements, when the crowd unexpectedly surges forward a number of people at the front are severely injured. The couple are both very frightened. The husband helps to get the injured people into ambulances, but the wife is too worried about her husband to help. Neither of them are physically hurt, but both suffer from a recognised psychiatric illness afterwards. If the couple were to bring a negligence claim against the festival organiser for their psychiatric illness, which of the following best describes how they will be viewed for the purposes of duty of care?
A primary victim and a secondary victim.
An actual victim and a primary victim.
Two secondary victims.
An actual victim and a secondary victim.
Two primary victims.
A primary victim and a secondary victim.
Correct. The husband was in the danger zone and feared for his own safety – Page v Smith (1996) 1 AC 155. The wife was not in the danger zone but feared for her husband’s safety – Alcock v Chief Constable of South Yorkshire Police (1992) 1 AC 310.
A man is watching a cricket match on television when he sees part of the spectator area at the cricket ground collapse. The man knows that his son is at the match but does not know where he was sitting. He goes straight to the cricket ground where he is told by the police that his son has been taken to hospital. When he arrives at the hospital an hour later, he is told that his son has died from crush injuries but several hours pass before he is able to identify him in the morgue. The man develops clinical depression.
Which of the following provides the best advice to the cricket ground?
The cricket ground will owe a duty of care as the man’s clinical depression is a sudden reaction to witnessing the accident.
The cricket ground will not owe a duty of care to the man as he saw the accident happen on television.
The cricket ground will owe a duty of care to the man as he witnessed the immediate aftermath of the accident.
The cricket ground will owe a duty of care to the man as he has suffered a recognised psychiatric injury foreseeable in a person of ordinary fortitude.
The cricket ground will owe a duty of care to the man as the father/son relationship is a sufficiently close tie of love and affection to provide proximity.
The cricket ground will not owe a duty of care to the man as he saw the accident happen on television.
The man is a secondary victim as he was not in the danger zone but was in reasonable fear for the safety of his son (Alcock; Page v Smith). He will only be able to establish that he is owed a duty of care, by the cricket ground, if he can meet the criteria in Alcock. One criterion is that the manner of perception must be with one’s own unaided senses. Here he sees the accident happen on television, thus not with his own senses unaided. An exception to this has been made where the claimant has witnessed the ‘immediate aftermath’ of the accident (McLoughlin v O’Brian). However, on the facts the man did not ‘witness’ the injuries to his son for several hours and so would be highly unlikely to succeed on this basis as a time lapse of 7-8 hours was found to be too long in Alcock. Additionally, the man did not know where, at the cricket ground, his son was in the ground. In Alcock, the equivalent manner of perception was found to be insufficient, partly because broadcasting rules prevented the broadcast of recognisable individuals affected. The same would probably apply here and so the man would not be owed a duty of care by the cricket ground.
A niece and her aunt go for a haircut and colour. The hairdresser uses the wrong hair dye which causes the niece a severe burning rash and her skin starts to peel away immediately. The niece becomes clinically depressed. The aunt is so upset when she sees her niece’s skin peeling away that she cannot stop thinking about it several weeks later. The aunt is later diagnosed with post-traumatic stress disorder.
Which one of the following statements best explains the legal position in the tort of negligence where the loss is psychiatric harm?
The niece is an actual victim. The aunt is a secondary victim; her claim will likely fail due to insufficient ties of love and affection with her niece.
The niece is an actual victim. The aunt is a secondary victim; her claim will likely fail because she did not witness the event or the immediate aftermath.
The niece is a primary victim. The aunt is a secondary victim; her claim will likely fail due to insufficient ties of love and affection with her niece.
The niece is an actual victim. The aunt is a primary victim; her claim will likely fail as she has not suffered any physical injury.
The niece is an actual victim. The aunt is a primary victim; her claim will likely fail due to insufficient ties of love and affection with her niece.
The niece is an actual victim. The aunt is a secondary victim; her claim will likely fail due to insufficient ties of love and affection with her niece.
The niece is an actual victim as she has suffered physical injury as well as psychiatric harm. The aunt 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 her niece (the 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. While the other answer options might sound plausible, they are incorrect. The niece is not a primary victim as she has suffered physical injury as well as psychiatric harm. The aunt is a secondary victim, but she has witnessed the event. The aunt is not a primary victim as she was never in reasonable fear for her own safety.
