Pure Psychiatric Harm Flashcards
Chapter 5
What is the general rule regarding a duty of care for pure psychiatric harm?
As a general rule, a defendant does not owe a duty of care to a claimant not to cause pure psychiatric harm. This is because there’s often a lack of a sufficiently proximate relationship between the claimant and defendant.
What is the key difference between ‘consequential’ and ‘pure’ psychiatric harm?
○ Consequential psychiatric harm arises from a physical injury, such as anxiety or a phobia following a car accident where a person has suffered a broken leg. It is treated as part of the physical injury and does not have special rules.
○ Pure psychiatric harm is caused without any physical impact or injury to the claimant. It has specific rules for when a duty of care is owed.
What two conditions must be met for pure psychiatric harm to be considered for a duty of care?
The pure psychiatric harm must be either:
○ A medically recognised psychiatric illness (e.g. PTSD)
○ A shock-induced physical condition (e.g. miscarriage or heart attack) Simple worry or anxiety do not qualify.
What is a primary victim in the context of pure psychiatric harm?
A primary victim is someone who was directly involved in the incident, meaning they were:
○ In the actual area of danger or
○ Reasonably believed they were in danger
What is the test for a duty of care owed to a primary victim for pure psychiatric harm?
A duty of care is owed to a primary victim if the risk of physical injury was foreseeable, even if no physical injury actually occurred. The foreseeability of psychiatric harm itself is not required.
What is a secondary victim in the context of pure psychiatric harm?
A secondary victim is someone who was not directly involved in the incident and who:
○ Witnesses injury to someone else, or
○ Fears for the safety of another person
What is the test (from Alcock) for establishing a duty of care to a secondary victim?
A secondary victim must meet all of these requirements to be owed a duty of care:
○ Foreseeability of psychiatric harm: It must be reasonably foreseeable that a person of normal fortitude in the claimant’s position would suffer a psychiatric illness.
○ Proximity of relationship: The claimant must have a close relationship of love and affection with the person endangered by the defendant’s negligence.
○ Proximity in time and space: The claimant must be present at the accident or its immediate aftermath.
○ Proximity of perception: The claimant must see or hear the accident, or its immediate aftermath, with their own senses.
Does a rescuer have a special status when claiming for pure psychiatric harm?
No, rescuers are treated like any other victim.
○ If the rescuer was in actual danger, they are a primary victim.
○ If the rescuer was not in danger, they are a secondary victim and must meet all the Alcock requirements.
Explain the ‘egg-shell skull’ rule in the context of psychiatric harm.
The defendant must take the victim as they find them. If a claimant suffers greater psychiatric harm than a person of normal fortitude due to a pre-existing vulnerability, the defendant is still liable for the full extent of that harm, provided that some psychiatric harm was foreseeable.
What are the steps in determining negligence for pure psychiatric harm after a duty of care is established?
After a duty of care is established, the claimant must prove:
○ Breach of duty: that the defendant fell below the standard of a reasonable person.
○ Causation: that the breach of duty caused the psychiatric harm. The “egg-shell skull” rule applies.
○ The defendant may rely on any relevant defenses
