Psychiatric injury Flashcards
What are the policy arguments for restricting claims for negligently inflicted pure psychiatric harm?
Floodgates: a significant increase in the class of claimants who could recover.
Fraudulent claims: historically the courts have been wary of psychiatric harm as there is a perception that such harm is easier to `fake’ than physical injury.
Crushing liability: Imposing damages out of all proportion to the negligent conduct.
What is the definition of psychiatric harm?
A form of psychiatric illness that the claimant has suffered as a result of the perception of traumatic events. The psychiatric harm must be either:
a) a medically recognised psychiatric illness; or
b) a shock-induced physical condition (such as a heart-attack).
What are primary victims?
This is someone who suffers psychiatric harm as a result of reasonable fear for their own safety (objective test). They are involved in the traumatic event and are therefore in the area of danger.
The primary victim does not suffer physical injury. If they do, they are an actual victim and would bring an ordinary negligence action for their PI, including their consequential psychiatric injury.
What are secondary victims?
Someone who suffers psychiatric harm due to fear for someone else’s safety, normally a close relative.
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.
How does the law of relating to psychiatric harm apply to bystanders and rescuers?
Neither bystanders nor rescuers are given any special status in this area of law. As with any other claimant they must be classified as either a primary or secondary victim.
What is the test for primary victins?
The defendant must reasonably have foreseen that the claimant might suffer physical injury as a result of their negligence.
Psychiatric harm must be medically recognised, what does that mean?
Liability WILL NOT arise for fear, distress or mental grief caused by negligence
Shock-induced physical conditions can also form the subject of a claim. Both the psychiatric harm and physical injury must be `material’.
New conditions have been recognised such as PTSD, ME (Myalgia Encephalomyelitis) and pathological grief syndrome
What is the test for secondary victims?
- Must be established that the psychiatric harm is medically recognised or a shock induced physical condition
- psychiatric harm must be reasonably foreseeable
- proximity of relationship between the claimant and the victim
- Proximity in time and space to the accident.
What is the test for 3. Proximity of relationship between the claimant and `the victim’?
The secondary victim must have a relationship of close ties of love and affection with the victim
Close ties of love and affection are rebuttably presumed in the case of parent/child, husband/wife and engaged couples
There is no such rebuttable presumption for grandparent/grandchild or between siblings
What does proximity in time and space to the accident mean?
The 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 their own senses.
2 hours after the accident was held as the immediate aftermath
8 hours after was not classed as the immediate aftermath
No duty owed to a secondary victim who is told about the accident (involving the newspaper or TV).
Can secondary victims claim in medical crisis cases?
It is not possible to have a successful secondary victim psychiatric harm claim in medical negligence settings. However, it is possible that accidents could arise in medical settings.
What are assumption of responsibility cases?
A 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. For example:
Employer/employee
Doctor/patient
Police/police informant
Assumption of responsibility cases include occupational stress claims where psychiatric harm is caused by the stress of work.
What is the guidance for occupational stress claims?
- Psychiatric harm to the claimant was (or ought to have been) reasonably foreseeable to the employer;
- 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
b) Signs of stress
c) The size and scope of the business and availability of resources.
Once this threshold is crossed, it is immaterial whether a person of ordinary fortitude would have suffered the harm.
