Pure psychiatric harm Flashcards
What is the general rule for liability for pure psychiatric harm?
A defendant does not generally owe a duty of care to claimant in respect of pure psychiatric harm.
What types of psychiatric harm will give rise to a duty of care?
A medically recognised psychiatric illness
OR
A shock-induced physical condition such as a heart attack or migraine
What are the two types of victims for psychiatric harm?
Primary victims
Secondary victims
What is a primary victim?
Someone who was actually involved in the accident, in the actual area of danger and reasonably believed they were in danger.
What are the requirements for a duty of care to be owed to a primary victim?
They must be suffering from a medically recognised psychiatric illness or a shock-induced physical condition such as a heart attack or miscarriage.
There must be a foreseeable risk of PHYSICAL injury.
What is a secondary victim?
Someone who is not involved in the accident in the same way. They may witness injury to someone else or fear for the safety of another person.
What are the requirements for a duty of care to be owed to a secondary victim? (5)
They must be suffering from a medically recognised psychiatric illness or a shock-induced physical condition such as a heart attack or miscarriage.
Psychiatric harm must be reasonably foreseeable.
The claimant must have a close relationship of love and affection with the person endangered.
Claimant must be present at the accident or its immediate aftermath.
Claimant must see or hear the accident or its immediate aftermath.
How do you determine if there was foreseeability of psychiatric harm for secondary victims?
If an ordinary person in the claimant’s position witnessed the events, is it foreseeable that they would suffer a psychiatric injury?
How do you determine a proximity of relationship for secondary victims?
Pre-existing relations presume this e.g. parent/child, husband/wife, fiance/fiancee.
If a defendant knows they are not close they can rebut the presumption.
If the relationship falls outside the presumption, the claimant must prove their relationship of love and affection existed.
How do you determine proximity in time and space for secondary victims?
The claimant does not need to be present at the time of the accident, but they must at least come upon the immediate aftermath.
How do you determine the proximity of perception for secondary victims?
The claimant must have personally perceived the event ‘through sight or hearing of the event or its immediate aftermath’
A claimant cannot be compensated if the event is communicated by a third party
How are rescuers treated in respect of pure psychiatric harm?
They are treated in the same way i.e. considering if they are a primary or secondary victim.
The same tests apply to them, hence why secondary victims will not likely meet the criteria.
