Pure Psychiatric Harm

Question 1

What is the general rule regarding pure psychiatric harm?

Answer 1

There is no duty of care.

Question 1

What may psychiatric harm include ?

Answer 1

PTSD;

Worry and Anxiety;

Physical illnesses caused by sudden shock.

Question 2

What are the requirements for a claim of pure psychiatric harm?

Answer 2

If pure psychiatric harm has been suffered without physical injury, the injury must be:

1) caused by a sudden shock; and either

2) a medically recognised psychiatric illness; or

3) a shock-induced physical condition (eg miscarriage or heart attack).

Question 3

Does the sudden shock requirement get satisfied by a gradual build up of events?

Answer 3

No.

Question 4

What is a primary victim?

Answer 4

Someone suffering psychiatric harm from an incident they are involved in, by being:

• within the actual area of danger; or
• reasonably believed that they were in danger.

Question 4

Summarise what constitutes pure psychiatric harm.

Answer 4

• pure psychiatric harm is harm suffered without physical impact;
• for duty of care to be owed, is must be caused by a sudden shock.
• it must also be a medically recognised psychiatric illness, or a shock-induced physical condition.

Question 5

What are the requirements for a duty of cafe to be owed to a primary victim?

Answer 5

• Primary victims owed duty in relation to their psychiatric harm provided the risk of physical injury was foreseeable;
• It is not however necessary the risk of psychiatric harm was foreseeable.

Question 6

List the requirements which must be satisfied for a secondary victim to be owed a duty of care for their psychiatric harm?

Answer 6

1) Foreseeability of psychiatric harm;

2) proximity of relationship.

3) Proximity in time and space;

4) Proximity of perception.

Question 7

What is a secondary victim?

Answer 7

someone not involved in the incident but:

1) witnesses injury to someone else; or
2) fears for the safety of another person.

Question 8

Explain the requirement (for secondary victims) that there must be foreseeability of psychiatric harm.

Answer 8

Must be reasonably foreseeable that a person of normal fortitude in C’s position would suffer a psychiatric illness.

Question 9

Explain the requirement (for secondary victims) that there must be proximity of relationship to claim for psychiatric harm.

Answer 9

C must have a relationship of love and affection with the person endangered by D’s negligence.

Question 10

Explain the requirement (for secondary victims) that there must be proximity in time and space.

Answer 10

C must be present at the accident or in its immediate aftermath.

Question 11

Explain the requirement (for secondary victims) that there must be proximity of perception.

Answer 11

C must either see or hear the accident, or its immediate aftermath with their own senses.

Question 12

What constitutes foreseeability of psychiatric harm for secondary victims?

Answer 12

The question to be asked is:

Was it reasonably foreseeable that a person of normal fortitude in C’s position would suffer psychiatric illness.

Question 13

What costittues a relationship of love and affection?

Answer 13

1) It is presumed in case of, husband/wife, fiances/parent child; but

2) D can rebut this presumption if they adduce evidence the two parties were not that close in reality to evidence such a relationship;

3) If C falls outside the categories of close ties of love and affection, C just prove close relationship of love and affection existed.

Question 14

List the test for whether there is proximity of perception.

Answer 14

1) shock must come to C through sight or hearing of the event or of its immediate aftermath;

2) c cannot be compensated if event is communicated by a third party.

As such seeing the incident on TV (for example) is insufficient.

Question 14

What constituted proximity in time and space?

Answer 14

They must be present either at the accident or the immediate aftermath.

In McLoughlin, HOL held seeing family in same state as they were at scene of incident 1 hour after the incident was sufficient.

Identifying body of family member 8 hours after the incident however has been deemed not to be sufficient.

Question 15

Give a rare example of when seeing a. incident through TV would constitute proximity of perception.

Answer 15

Kids in airballoon which suddenly bursts into flames with parents watching on TC.

Question 16

How are rescuers (eg people employed at the scene to help such as police officers) treated for the purposes of pure psychiatric harm?

Answer 16

treated in same way as any other victim suffering psychiatric harm.

If they are in actual area of danger they are a primary victi, and DOC is owed if they are at risk of. physical injury.

If they are not in actual area of danger, normal rules for secondary victims apply.

Question 17

What is the egg shell rule?

Answer 17

Victim is taken as they are found.

Irrelevant if they suffer from pre-exiting characteristic making them more vulnerable which leads to greater damage.

C only needs to show some damage of the kind they suffered was reasonably foreseeable of a person with normal fortitude.

Question 18

How does the egg shell rule work in conjunction with remoteness of damage?

Answer 18

Provided C can shown at least some of the harm they suffered was reasonably foreseeable for a person of normal disposition, they can then recover damage for all the injury they suffer (even if worse because of a pre-existing character condition).

Question 19

Does causation apply in the usual was to psychiatric harm?

Answer 19

Yes.