Tort - Pure Psychiatric Harm (4)

Question 1

What is pure psychiatric harm?

Answer 1

Pure Psychiatric Harm: Pure psychiatric harm is harm suffered owing to negligence without physical harm. It is generally irrecoverable, subject to exceptions. This does not apply to stress in the workplace claims against employers.

Question 2

What are the elements of pure psychiatric harm?

Answer 2

Elements: There are four elements of pure psychiatric harm in negligence (Alcock v Chief Constable of South Yorkshire).

(1) No Physical Injury: The Claimant suffered no direct physical injury by the Defendant.

(2) Sudden Shock: The Claimant suffered a ‘sudden shock’ flowing from a single ‘shocking’ event.

(3) Medically Recognised: The Claimant developed a medically recognised condition as a result, including shock-induced physical ailments.

(4) Foreseeable: The Claimant’s psychiatric harm was a foreseeable consequence of the Defendant’s actions.

Question 3

What is the duty of care in pure psychiatric harm?

Answer 3

Duty of Care: Defendants generally owe no duty of care in respect of pure psychiatric harm. This is subject to two primary exceptions. If established, ordinary breach and causation must still be determined.

Primary Victims
Primary Victims: Primary victims are always owed a duty of care for pure psychiatric harms (Page v Smith).

(1) Actual Area of Danger: The Claimant was in the actual area of danger caused by the Defendant’s negligence, or believed themselves to be in that area (including in the immediate aftermath).

(2) Foreseeable Physical Injury: Though physically uninjured, it must have been foreseeable to the Defendant that the Claimant could have been physically injured by their negligence.

Secondary Victims
Secondary Victims: Secondary victims are individuals who witnessed the danger but were not themselves in danger, nor believed themselves to be. They are sometimes owed a duty of care, if the following conditions are met (Alcock):

(1) Love and Affection: The Claimant held a close relationship of love and affection to an individual in the area of danger. This is rebuttably presumed for parents-children, husbands-wives, and those in similar roles (not siblings).

(2) Presence at Scene: The Claimant must have been near to the dangerous event, or its immediate aftermath, and observed/heard it with their own unaided sense, i.e. not witnessed on TV or told of by a friend (McLoughlin v O’Brien).

(3) Foreseeable Psychiatric Injury: The risk of the Claimant developing a psychiatric injury must have been reasonably foreseeable.

Rescuers
Rescuers: Rescuers are those who attempt to rescue others from the accident, either voluntarily professionally (White v CC South Yorkshire). They are owed no special duty, but can claim as either primary or secondary victims provided they meet the required elements of either test (Chadwick v British Railway Board).