Psychiatric Injury Flashcards
What are three policy arguments for limiting claims for the loss of psychiatric harm?
Floodgates
Crushing liability
Fraudulent claims
How is psychiatric harm defined in tort?
A) A medically recognised psychiatric illness
B) A shock - induced physical condition e.g. a heart attack
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 in the area of danger.
Who is an actual victim?
Someone who suffers physical injury alongside psychiatric harm. If this is the case, they would bring an ordinary negligence claim + psychiatric harm.
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 safety / not in the danger zone but witness the immediate aftermath.
How are bystanders / rescuers considered in this area of law?
No special status - categorised as either a primary or secondary victim
How is it determined whether a primary victim is owed a duty of care?
The defendant must have reasonably foreseen that the claimant might suffer physical injury as a result of their negligence. No need to foresee the psychiatric harm.
What is a key caveat to all psychiatric harm claims?
The loss must be a medically recognised psychiatric illness - no liability for fear, distress, or mental grief caused by negligence.
It can also be a shock induced physical condition - but both the physical and psychiatric injury must be material
How is thin skull rule relevant to psychiatric injury?
If physical injury is reasonably foreseeable, defendant is liable for full extent of psychiatric harm.
Once foreseeability is found, what will courts apply next?
If no precedent, they will apply normal Caparo principles to determine the existence of a duty of care.
Proximity
FJR
What is the current test for determining whether a duty of care is owed to a secondary victim for pure psychiatric harm?
Alcock Criteria
Psychiatric harm must be reasonably foreseeable
Proximity of relationship between the claimant and the victim - a relationship of “close ties of love and affection”.
Proximity in time and space to the accident - must have been present at the accident or its immediate aftermath, and seen or heard the accident with their own senses. No duty owed to someone who is merely told about an accident.
In which relationship is a relationship of close ties of love and affection presumed?
Parent and child
Husband and wife
Engaged couples
NOT
Grandparents and grandchildren
Siblings
Can the Alcock principles be applied to medical crises cases?
Courts have been clear that they do not - doctors don’t owe those who witness medical crises a duty of care.
What key principles did Paul v Royal Wolverhampton NHS Trust establish?
Courts have been clear that they do not - doctors don’t owe those who witness medical crises a duty of care.
Distinction between accident vs medical crisis cases.
In medical crises cases, there is no accident to which there can be an immediate aftermath - not analogous.
No need for the psychiatric injury to have been caused by a sudden shock to the nervous system.
Accident need not be horrifying
A gap in time between breach and accident doesn’t bar recovery - what matters is claimant’s proximity in time and space to the accident.
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.
Examples: Employer / employee
Doctor / patient
Police / police informant
Occupational stress claims.
When is an employer in breach in occupational stress claims?
1) Psychiatric harm was reasonably foreseeable
2) Foreseeability depends on the relationship between the characteristics of the claimant and the requirements made of them including
- Nature and extent of the work being undertaking
- Signs of stress
- Size and scope of business / availability of resources
