Pure Psychiatric Harm

Question 1

What is the general position in relation to pure psychiatric harm?

Answer 1

As with PEL, this is a limited duty situation, so there is generally no duty of care for pure psychiatric harm

Question 2

What are the general requirements re PPH?

Answer 2

Does not include consequential harm (car accident leading to anxiety)

Only applies to psychiatric harm without physical impact

Two overarching requirements:
1. C suffers medically recognised psychiatric harm (or shock induced physical condition (heart attack, miscarriage)
2. C can satisfy either the primary victim (PV) or secondary victim tests (SV)

Question 3

What might be a medically recognised psychiatric condition?

Answer 3

PTSD or depression are common examples

Question 4

How is the primary victim test satisfied?

Answer 4

A primary victim was involved in the incident and:
* was in the actual area of danger; or
* reasonably believed that he was in danger

Risk of physical harm to C must be reasonably foreseeable, but psychiatric harm does not need to be foreseeable

Question 5

What are the elements of the secondary victim test?

Answer 5

A secondary victim is a witness to an event

Four main elements:
1. Psychiatric injury is reasonably foreseeable – reasonably foreseeable that a person of ‘normal fortitude’ in C’s position would have suffered a psychiatric injury

2. Proximity of relationship – must be a relationship with ‘close ties of love and affection’ with the endangered person
3. Proximity in time and space – person must be in the incident or immediate aftermath; scene would have to be largely unchanged for this second aspect to apply
4. Proximity of perception – C must have witnessed the event with their own senses; not be told about it by a 3rd party or witnessing it on TV

Question 6

When is a relationship with close ties of love and affection presumed?

Answer 6

Presumptions for parent/child, married partners and fiancé/fiancée

Siblings and other relationships would have to provide evidence to prove this

Question 7

What is the position with rescuers?

Answer 7

Amateur or professional rescuers must satisfy all parts of the test and aren’t given special status

In other words, there must be:

• A medically recognised psychiatric harm (or shock induced physical condition
• PV or SV test satisfied - Close ties of love and affection aspect unlikely to be met for SV test as a rescuer

Question 8

If a duty in respect of PPH is established, what further elements are needed to establish negligence?

Answer 8

Breach of duty and causation