Liability in Negligence for Psychiatric Injury.

Question 1

What are the four things that must be proven for liability for psychiatric injury sustained for primary and secondary victims?

Answer 1

1) C must suffer PI as the result of a sudden/horrifying event.
2) D must owe C a duty of care (is C a primary or secondary victim?
3) The duty must be breached.
4) The negligence must cause the PI.

Question 2

Describe the first thing that must be proven:

Answer 2

1) C must suffer PI as the result of a sudden/horrifying event.

• It must be a diagnosed psychiatric injury (Behrens v Bertam).
• Grief, sorrow, fear and panic do not amount to PI (Hinz v Berry).
• If there is no sudden, horrifying event there can be no claim (Sion v Hampstead Health Authority).
• If there is a shorter period of decline in the condition the claim could be allowed (North Glamorgan NHS Trust v Walters).

Question 3

Describe the second thing that must be proven:

Answer 3

2) D must owe C a duty of care.

• Is C a primary or secondary victim?

Primary victim: Those involved in the accident and suffered either physical injuries, mental injuries or both.

Secondary Victim: Not involved in the incident but suffered mental injury as a result of what they saw or heard at the scene of the accident or its immediate aftermath.

Question 4

Describe the secondary victims tests:

Answer 4

Secondary Victims must pass the Alcock criteria and a threshold test.

• Alcock criteria:
  C must have close ties of love and affection with V
  The relationship must be ‘close’ (blood, relationship, close friend).

Whether it is ‘close’ would depend on the facts of whether such a relationship actually existed
Witnessed the event/aftermath with their own unaided sense
Suffered mental injuries at the scene of the accident or in its immediate aftermath

• Threshold test:
  Would a person of reasonable fortitude have suffered the same reaction and injury as C?

Question 5

Describe the third thing that must be proven:

Answer 5

The duty must be breached.

Question 6

Describe the fourth thing that must be proven:

Answer 6

The negligence must cause the PI.