Psychiatric injury Flashcards
Psychiatric harm
The psychiatric harm must be either (a) a medically recognised psychiatric illness; or (b) a shock-induced physical condition (such as a heart attack).
Primary Victims
A primary victim is 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 (the danger zone).
Note that the primary victim does not suffer physical injury. If they do, then they are an actual victim and would bring an ordinary negligence action for their personal injury, including their consequential psychiatric injury which would be recoverable.
Secondary victims
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.
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.
If a rescuer or a bystander suffers psychiatric harm as a result of fearing for their own safety, then they will be a primary victim. In Cullin v London Fire & Civil Defence Authority [1999] PIQRP 314, the claimant fire fighter suffered psychiatric injury after witnessing two colleagues trapped inside a burning building. In his rescue attempt, he was exposed to danger or reasonably believed he could be subjected to physical injury and was therefore a primary victim.
Primary victims: the test for duty of care
- In Page v Smith [1996] 1 AC 155 it was held that in order to determine whether a primary victim is owed a duty of care, the defendant must reasonably have foreseen that the claimant might suffer physical injury as a result of their negligence. If physical injury was reasonably foreseeable, the normal principles for determining the existence of a duty of care would then apply.
- This test for establishing a duty of care is a much easier test to satisfy than the test for establishing a duty of care to secondary victims (the Alcock criteria as discussed later). The first step, however, is to ensure the psychiatric harm suffered is recognised in law.
Psychiatric harm must be medically recognised
In all claims of pure psychiatric harm, a key criterion for recovery is that the claimant has suffered a medically recognised psychiatric illness; or a shock-induced physical condition. Courts will refer to medical manuals etc., medical history/notes, expert evidence and precedent. Liability will not arise for fear, distress or mental grief caused by negligence.
Physical harm must be reasonably foreseeable
The primary victim must show that physical harm was reasonably foreseeable in order to establish a duty of care.
Proximity and fair, just and reasonable
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.
If the court is unable to rely on precedent and is discussing proximity and fair, just and reasonableness, these are likely to be relatively straightforward. As the primary victim is always present at the traumatic event, there is always geographical proximity between the claimant and defendant. Finally, if the defendant negligently, and foreseeably, 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 psychiatric damage caused as a result.
Structure for primary victim claims: parties to duty
(1) Identify the parties (claimant name v defendant name) and tort.
(2) Identify the loss eg depression. The psychiatric harm must be medically recognised and or a shock-induced physical condition.
(3) Identify the claimant as a primary victim: use definition and facts.
(4) Duty of Care: was physical injury reasonably foreseeable as a result of the defendant’s negligence?
If NO: No Duty of care
If YES: Is there a precedent making clear whether a duty is owed?
If YES: Apply precedent
If NO: See below
Continuing duty of care if no precedent
* Consider whether a duty should be imposed by analogy with existing cases within the context of the Caparo criteria. Drawing an analogy means identifying the legally significant features of the earlier authorities.
* Many authorities involve detailed consideration of the relationship between the claimant and the defendant, which could be considered aspects of ‘proximity’. There is no need to consider foreseeability of harm as this has already been considered.
* Deciding whether to impose a duty in an area where there is no clear precedent is an exercise of judgement which involves consideration of what is fair, just and reasonable
* When deciding whether to impose a duty, bear in mind that the aim is to only develop the law of negligence incrementally.
Secondary victims: the test for duty of care
- Historically the courts have been cautious in finding liability for negligence actions involving psychiatric damage. In claims brought by secondary victims, policy requires further control mechanisms to the usual principles for duty of care, to limit the number of potential claimants. These control mechanisms are known as the Alcock criteria (see later).
- As with primary victims, it must first be established that the psychiatric harm complained of is medically recognised or a shock-induced physical condition. Refer back to the element on primary victims.
All of the following criteria must be satisfied:
a) Psychiatric harm must be reasonably foreseeable;
b) Proximity of relationship between the claimant and ‘the victim’; and
c) Proximity in time and space.
Note: there was an additional requirement that the injury be caused by sudden shock, but this was overruled by the Supreme Court in Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) [2024]
Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) [2024]
Key principles from Paul:
- A doctor does not owe those who witness a ‘medical crisis’ a duty of care. A doctor who treats a patient does not enter into a doctor-patient relationship with any of the patient’s family and assume responsibility for their health. It is not the responsibility of the medical practitioner to protect the patient’s family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury to their relative.
- Distinction between ‘accident’ cases and ‘medical crisis’ cases. An accident is an unintended and unexpected external event causing or having the potential to cause injury or death to primary victims by external means. Accidents have a clear and immediate nature which sets them apart from the often prolonged and complex developments in the medical context which involve suffering or death caused by illness.
- For a secondary victim to recover damages, they must be present at the scene of the accident or its immediate aftermath. The Supreme Court confirmed the principles from Alcock, that (a) the claimant must have close ties of love and affection with the victim; (b) they must be present at the accident or its immediate aftermath; and (c) the psychiatric harm must have been caused by direct perception of the accident or its immediate aftermath. In the ‘medical crisis’ cases there was often no discrete event comparable to an accident. The length of time which symptoms of injury/disease last before a person recovers or dies is entirely variable which leads to uncertainty about what qualifies as an event capable of founding a claim. In addition, the extent to which the experience is traumatic is very variable in such cases, unlike in accident cases. Therefore, no analogy could be made with Alcock or McLoughlin.
- There is no requirement that the psychiatric injury must have been caused by a sudden shock to the nervous system. With regard to causation, it is sufficient for the claimant to show that there is a causal connection between witnessing the accident and the illness suffered.
- The accident need not be horrifying. It is necessary to show that psychiatric harm was reasonably foreseeable, but there is no need to prove that the accident witnessed was 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. There must be an external, traumatic event which immediately causes injury or death to a primary victim and the claimant must directly perceive that event or its immediate aftermath. Witnessing the injury caused by the accident is not necessary to recover (one may succeed where the primary victim suffers no injury).
The Supreme Court found that ‘medical crisis’ cases were not analogous to accident cases, and as such significantly curtailed the possibility of successful secondary victim psychiatric harm claims in medical negligence settings. However, it is possible that ‘accidents’ could arise in medical settings. Only further debate/judgments will provide an insight into what will be included as an ‘accident’ in a medical negligence context.
Structure for secondary victim claims: parties to duty
- Identify the parties (claimant name v defendant name) and tort.
- Identify the loss e.g. depression. The psychiatric harm must be medically recognised or a shock-induced physical condition.
- Identify the claimant as a secondary victim: use definition and facts.
- Duty of Care: Apply the Alcock criteria
a) Was the psychiatric harm reasonably foreseeable?
b) Is there proximity of relationship between the claimant and the victim?
c) Is there proximity in time and space?
Beyond primary and secondary victims - ‘Assumption of responsibility’ cases
There are psychiatric harm cases where the claimant cannot be classified as an actual, primary or secondary victim (they are not involved in or witnessed an accident). An example of this is ‘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 (Waters v Commissioner of Police for the Metropolis [2000] UKHL 50), doctor/patient (AB v Leeds Teaching Hospital NHS Trust[2004] EWHC 644 (QB)) and police/police informant (Swinney v Chief Constable of Northumbria Police [1996] EWCA Civ 1322).
‘Assumption of responsibility’ cases include occupational stress claims where psychiatric harm is caused by the stress of work.
In Barber v Somerset County Council [2004] UKHL 13, the House of Lords approved guidance as to when an employer would be in breach in 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. 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.
