Tort 3 - Psychiatric Harm Flashcards
What is psychiatric harm classified as?
A type of loss, not a tort.
What are the three classifications of victims in psychiatric harm claims?
Into three types of victim: actual, primary, or secondary.
Define an actual victim.
A person who has suffered physical harm only or physical harm and psychiatric harm.
What is a primary victim?
A person in the danger zone who suffers psychiatric harm due to reasonable fear for their own physical safety.
What characterises a secondary victim?
A person who suffers psychiatric harm due to fear for someone else’s safety, witnessing the event or immediate aftermath but not being in the danger zone.
True or False: Bystanders and rescuers have special status in psychiatric harm claims.
False.
What must a primary victim prove to claim for psychiatric harm?
- The harm is medically recognised
- Physical injury was foreseeable*
- General negligence principles (Caparo: proximity, fair, just and reasonable)
*If physical injury is foreseeable, psychiatric injury doesn’t need to be separately foreseeable.
What does the thin skull rule imply for primary victims?
The defendant is liable for the full extent of psychiatric harm, even if the claimant suffers more due to a pre-existing condition.
What must be established for a secondary victim to claim psychiatric harm?
- Psychiatric harm must be reasonably foreseeable
- Proximity of relationship
- Proximity in time and space
- Injury must result from sudden shock.
Can pregnant woman claim for psychiatric harm from hearing a crash?
No
What does ‘proximity in time and space’ require of a secondary victim?
Must be present at the scene of the accident or its immediate aftermath with their own senses.
What are close ties of love and affection in psychiatric harm claims?
Presumed for parent/child and married/engaged couples. Others must prove the closeness.
What is the time frame considered as ‘immediate aftermath’?
Two hours after the accident.
What is the significance of the term ‘sudden shock’ in secondary victim claims?
The injury must be a reaction to a sudden and horrifying event, not a gradual realisation.
What overarching consideration do courts consider when determining duty of care?
Whether it is fair, just, and reasonable to impose a duty.
What must an employer do to avoid breaching their duty regarding psychiatric harm?
Ensure psychiatric harm was reasonably foreseeable.
True or False: An employer’s duty of care is based solely on the nature of the work.
False.
What factors suggest breach of duty in employer psychiatric harm cases?
Foreseeability based on:
* Nature and extent of work
* Signs of stress
* Size/resources of employer
What is required for an assumption of responsibility case?
The defendant has assumed responsibility to ensure the claimant avoids reasonably foreseeable psychiatric harm.
What type of conditions are now recognised as claims for psychiatric harm?
- PTSD
- Myalgic Encephalomyelitis (ME)
- Pathological grief syndrome
What does the term ‘floodgates’ refer to in the context of psychiatric harm claims?
Concerns about an overwhelming number of claims that could burden the legal system.
What is the role of expert evidence in psychiatric harm claims?
Courts refer to medical manuals, medical history, and expert evidence to determine if psychiatric harm is recognized.
What was the outcome in the case of Hinz v Berry [1970]?
Damages were awarded only for depression caused by witnessing a horrific accident, rejecting claims for grief, sorrow, and worry.
What must be shown for a primary victim to establish a duty of care?
Physical harm must be reasonably foreseeable.
What are the criteria established in Alcock v Chief Constable of South Yorkshire [1991] for secondary victims?
- Psychiatric harm must be reasonably foreseeable
- Proximity of relationship
- Proximity in time and space
- Injury must be the result of sudden shock
