Tort Law - Psychiatric Harm Flashcards
What is psychiatric harm? (1)
Loss not a tort.
How may the courts establish a duty of care in regard to a claimant’s loss being pure psychiatric harm? (1)
By classifying the claimant into one of three types of victims - actual, primary or secondary.
What is an actual victim? (1)
Person who has suffered physical harm only or physical and psychiatric harm.
What is a primary victim? (1)
A person in the danger zone who suffers psychiatric harm as a result of a reasonable fear for their own physical safety.
What is a secondary victim? (1)
A person who suffers psychiatric harm due to fear for someone else’s safety. They witness the event or immediate aftermath but are not in the danger zone.
Are bystanders / rescuers given any special status in terms of being a victim? (1)
No.
Definition of psychiatric harm? (2)
A form of psychiatric illness that the claimant has suffered as a result of the perception of traumatic events often labelled as ‘nervous shock’. It must be either a medically recognised psychiatric illness or a shock-induced physical condition – heart attack.
What is the key case for psychiatric harm and establishing a type of victim? (1)
McFarlane V EE Caledonia Ltd 1994.
What must the psychiatric harm be to be recoverable? (1)
Medically recognised or a shock-induced physical condition.
How do the courts establish whether a primary victim is owed a duty of care? (3)
First the court will consider whether the physical injury was reasonably foreseeable as a result of the defendant’s negligence. If it was, the courts will apply the normal principles for determining duty of care. If it was not, no duty of care will be owed.
What caused showed that liability will not arise for fear, distress or mental grief caused by negligence? (1)
Hins V Berry
What is the key case for physical harm must be reasonably foreseeable? (1)
Page V Smith
What is the thin skull rule? (2)
If physical injury is reasonably foreseeable the defendant is liable for the full extent of the psychiatric harm even if the claimant suffered to a greater extent as a result of a pre-existing condition.
