Psychiatric injury Flashcards
What is psychiatric harm?
A form of psychiatric illness that the C has suffered as a result of the perception of traumatic events. The harm must be either:
-a medically recognized psychiatric illness
-a shock-induced physical condition e.g. heart-attack
Will liability arise for fear, distress or mental grief?
No, the psychiatric harm must be medically recognised as seen in Hinz v Berry (1970) where the C’s claim for grief, sorrow and worry were not allowed. Damages for depression were allowed.
Define the following:
actual victim
primary victim
secondary victim
Actual victim is a person who has suffered physical harm and possibly also psychiatric harm.
Primary victim is someone who does not suffer physical harm, but who suffers psychiatric harm as a result of reasonable fear for their own physical safety.
A secondary victim is someone who does not suffer physical harm, but who suffers psychiatric harm due to fear for someone else’s safety. They are not in the danger zone.
What is the test for determining whether a primary victim is owed a duty of care?
The D must reasonably have foreseen that the C might suffer physical injury as a result of their negligence-Page v Smith (1996).
This is an objective test-once established, the normal principles for determining the existence of a duty of care then apply.
There is no need to foresee the psychiatric damage as well.
What level does the psychiatric and physical injury need to be?
Needs to be material.
Mazhar Hussain v CC of West Mercia (2008): stress and anxiety were not medically recognised psychiatric illnesses and the physical symptoms were not material damage.
Does the thin skull rule apply to psychiatric harm claims?
Yes, as seen in Page v Smith (1996) where the Court confirmed the D will be liable for the full extent of the psychiatric harm.
What is the test for determining whether a secondary victim is owed a duty of care?
The Alcock criteria:
-Psychiatric harm must be reasonably foreseeable
-Proximity of relationship between the C and victim
-Proximity in time and space to the accident
Alcock criteria-psychiatric harm must be reasonably foreseeable
Describe the case of Bourhill v Young (1943).
Must establish that psychiatric harm was reasonably foreseeable in a person of ordinary fortitude in the same circumstances.
Bourhill v Young (1943): no duty of care was owed to the C who suffered a shock-induced still birth after hearing a car crash and seeing blood on the road-it was not foreseeable.
Alcock criteria-proximity of relationship between the C and victim
Describe this requirement and the case of McLoughlin v O’Brian (1982).
The secondary victim must have a relationship of close ties of love and affection with the victim.
Parent/child, husband/wife and engaged couples have rebuttably presumed close ties. There is no such rebuttable presumption for grandparents/grandchildren and siblings.
McLoughlin v O’Brian (1982): the C mother successfully claimed for psychiatric harm after witnessing the immediate aftermath of a car accident which killed her daughter and injured her husband and three other children.
Alcock criteria-proximity in time and space to the accident
Describe this requirement and contrast the cases of McLoughlin (1982) and Alcock (1991).
C must have been present at the accident or its immediate aftermath, and they must have seen or heard the accident or its immediate aftermath, with their own senses.
McLoughlin (1982): proximity includes immediate aftermath of the accident-C arrived at hospital two hours after the accident but came upon her family in the same condition as they would have been roadside therefore her claim was successful.
Alcock (1991): victims witnessed the events of Hillsborough on TV therefore there was no proximity in time and space.
Does the Alcock criteria apply to medical crisis cases, refer to the case of Paul v Royal Wolverhampton NHS Trust (2024).
No, a doctor does not owe those who witness a medical crisis a duty of care.
Medical crisis cases are not analogous to accident cases.
Do employers owe their employees a duty of care in respect of occupational stress claims?
Yes, as established in Walker v Northumberland CC (1995) where the C had a heavy and demanding caseload and suffered multiple nervous breakdowns after not being delivered additional support.
When will an employer be in breach in occupational stress claims, refer to Barber v Somerset CC (2004).
-Psychiatric harm to the C was reasonably foreseeable to the employer
-Foreseeability depends upon the relationship between the characteristics of the C and the requirements made of them by the employer, including:
a. Nature and extent of the work being undertaken
b. Signs of stress
c. Size and scope of the business and availability of resources
