Psychiatric Harm

Question 1

Which policy arguments relate to psychiatric harm?

Answer 1

• ‘floodgates’- a significant increase in the class of claimants who could recover.
• ‘Crushing liability’- imposing damages out of all proportion to the negligent conduct
• Fraudulent claims - historically the courts have been wary of psychiatric harm as there is a perception that such harm is easier to ‘fake’ than physical injury (linked to diagnostic uncertainty).

Question 2

What part of the negligence claim structure is psychiatric harm a part of?

Answer 2

loss/ damage element

Question 3

What is the definition of psychiatric harm?

Answer 3

• psychiatric harm is a form of psychiatric illness or damage that the claimant has suffered as a result of the perception of traumatic events.
• ‘nervous shock’

Question 4

What is the difference between an actual, primary and secondary victim? From what case is this distinguished?

Answer 4

actual victim
- person who suffers physical harm
primary victim
- someone who suffers psychiatric harm as a result of reasonable fear for their own physical safety
secondary victim
- suffers psychiatric harm due to fear for someone else’s safety
Alcock vChief Constable of South Yorkshire Police

Question 5

Explain a primary victim.

Answer 5

• someone who suffers psychiatric harm as a result of reasonable fear for their own physical safety
• objective test
• The primary victim is involved in the traumatic event in question and is within the foreseeable range of physical injury i.e. the danger zone, but they only suffer psychiatric harm.
• Dulieu v White
• Page v Smith

Question 6

Explain a secondary victim.

Answer 6

• A person suffers psychiatric harm due to fear for someone else’s safety, normally a close relative.
• They arenotin any fear for their own physical safety.
• The secondary victim witnesses the traumatic event in question (or its immediate aftermath), and suffers psychiatric harm as a result, but is not involved in the event nor are they in the danger zone (in the foreseeable range of physical injury).
• McLoughlin v O’Brian
• Alcock

Question 7

What is the test for duty of care (primary victim)? Name the key case.

Answer 7

• In order to determine whether a primary victim is owed a duty of care, the defendant must reasonably have foreseen that the claimant might suffer personal injury as a result of their negligence
• If personal injury was reasonably foreseeable, the normal principles for determining the existence of a duty of care would then apply.
• no need to foresee psychiatric damage
• psychiatric harm suffered must be recognised in law (medical definition from DSM)
• thin skull rule applies
  (Page v Smith)

Question 8

Will liability arise for fear, distress or mental grief caused by negligence?

Answer 8

• no, usually liability will not arise from distress or grief (Reilly v Merseyside Regional Health Authority)
• grief or bereavement may be classified as a positive psychiatric illness where the pathological grief syndrome goes beyond what is classed as normal human emotion (Vernon v Bosley)

Question 9

Which conditions have been classed as a psychiatric harm?

Answer 9

Depression (Hinz v Berry)
A positive psychiatric illness (McLoughlin v O’Brian)
PTSD (Re GB, RB, RP)
ME (Page v Smith)

Question 10

Can a physical illness sustained after the event and resulting from psychiatric harm be claimed?

Answer 10

Yes - it must be first established that the psychiatric condition giving rise to the physical symptoms was a recognised psychiatric condition, and that both the psychiatric injury and the physical injury are ‘material’.
- miscarriage (Dulieu v White), or a heart attack.

Question 11

What is the test for duty of care (secondary victim)? Name the key case.

Answer 11

• Must satisfy theAlcockcriteria
• psychiatric harm must be recognised in law.
• Alcock v Chief Constable of South Yorkshire

Question 12

What is the Alcock criteria?

Answer 12

a. Psychiatric harm must be reasonably foreseeable;
- people are expected to have customary phlegm
- thin skull rule applies
b. Proximity of relationship between the claimant and ‘the victim’;
- closer the relationship, the more likely a duty will exist
- rebuttable presumed relationships (parents, children, spouses & engaged)
- close ties of love and affection must be proved for other relationships
c. Proximity in time and space
- includes being present at the scene of the accident or perceives the ‘immediate aftermath’ of an accident. (McLoughlin)
d. The injury must be the result of sudden shock.
- the psychiatric harm must be proved to be ‘a reaction to the immediate and horrifying impact’ and ‘a sudden assault on the nervous system’ (Alcock)
- cannot be gradual realisation

Question 13

Will a stranger ever be able to claim as a secondary victim?

Answer 13

Only in very rare occasions

• the House of Lords in Alcock thought that recovery might be possible if the accident or incident was particularly horrific,
• such as “witnessing an out-of-control petrol tanker crash into a school”

Question 14

Is a duty owed to a victim who is told about a shocking event?

Answer 14

No (Alcock)

Question 15

Is a duty of care owed to assumption of responsibility cases? Include examples.

Answer 15

A defendant will owe a claimant a duty of care not to cause psychiatric harm where the defendant has ‘assumed responsibility’ to ensure that the claimant avoids reasonably foreseeable psychiatric harm.
- employer/employee (Waters v Commissioner of Police for the Metropolis), doctor/patient (AB v Leeds Teaching Hospital NHS Trust) and police/police informant (Swinney v Chief Constable of Northumbria Police).