Psychiatric Harm- Duty of Care Flashcards
What is the first thing to establish when seeing what psychiatric harm is at issue?
See if its:
A) Consequential Psychiatric harm
or
B) Pure Psychiatric harm
What is Consequential psychiatric harm?
This is psychiatric harm resulting from physical injury
its consequential
eg: losing a leg from car accident leading to PSTD
if this is the case, the normal rules for negligence apply
duty of care, is there breach of this duty, is D the cause of this breach etc
What is pure psychiatric harm?
This is where the harm exists without any physical injury
this is purely mental illness, no physical injury
The general rule is that you can’t recover for this
But if there is a case of pure psychiatric harm, then different rules from negligence apply.
What approach do we use for pure psychiatric harm?
1) Work out is the condition that C got medically recognised?
2) Was C a primary or secondary victim?
Who are Primary Victims?
These are victims who are in the zone of danger
Key authority- Page v Smith 1995:
‘primary victim must be within the range of foreseeable danger’
Who are secondary victims?
This is the bystander
they are not at risk from being injured but they witness the harm
Alcock says: ‘this is the passive and unwilling witness of injury caused to others’
What is the approach for primary victims?
1) Key question: If physical injury is reasonably foreseeable (i.e. C is in the zone of danger) then C can recover from pure psychiatric harm
Page v Smith [1995]
So the key question is: once D owes a duty of care in terms of physical harm, then this will extends to psychiatric harm
What is the approach for secondary victims?
More restrictive than approach for primary victims
Here 5 things need to be established for a duty of care towards secondary victims arise:
1) Psychiatric harm is reasonable foreseeable in a person of ordinary fortitude
Alcock Criteria:
1) Close tie of love and affection
2) Proximity in time and space
3) Perceived through unaided senses
4) Sudden shock
What are some key cases for seeing if there is a medically recognised condition?
Hinz v Berry [1970]- C witnessed car crash with husband and kids inside. Couldn’t claim for grief but could claim for P harm
Hicks v CC South Yorkshire Police [1992]- Hillsborough case- father suing police for daughter getting crushed in stadium- couldn’t claim for fear and distress.
Explain the first requirement of the secondary victim approach
Psychiatric harm is reasonably foreseeable in a person of ordinary fortitude:
Is it reasonably foreseeable for a normal person?
it must be psychiatric harm and not just physical harm
Key case:
Bourhill v Young [1943] - pregnant women witnessed death of husband and kids in accident- led her baby to be stillborn. Claim failed as it wasn’t reasonably foreseeable that such a harm would occur
Brice v Brown [1984]- C had a psychiatric disorder, she witnessed daughter in car accident leading her to suffered from her disorder. Court said she couldn’t claim because this was pre- existing
Explain the first requirement in the alcock criteria
Req 1: Close tie of love and affection
C needs to have a close tie with the actual victim of the incident
there is a presumption for spouse/parent/ children but this can be rebutted. relationships outside this have to be evidenced
Alcock- one of Cs was brother of victim- but held to not have sufficiently demonstrated a close tie.
McFarlane v Caledonia [1994]- Mere bystanders cannot claim unless the event was particularly horrific- C witnessed serious fire in oil rig killing 200 people- he witnessed over several hours on a boat
Explain the second requirement of Alcock criteria
Req 2: Proximity in time and space
Alcock [1992] describe this as actually witnessing the event or its immediate aftermath
Key cases:
Alcock v CC South Yorkshire (1992)- brother of victim arrived at stadium 8 hours later, saw all bodies lying on floor. Court said here wasn’t proximate time and space, it was not in immediate aftermath and blood was all dried
Explain the third requirement of Alcock criteria
Req 3: Perceived through unaided senses
C must see this themselves
it cannot be told by third party, seen on TV or heard on radio
It can be live TV- Alcock 1992- Lord Ackner said it can be on live tv where its clearly showing victims dying
But if you do witness it, you can sue the messenger:
Wilkinson v Downton [1987]- D pulled a prank on C that her husband was seriously injured when he wasn’t. She suffered from P harm- claim successful
Farrell v Avon Health Authority [2001]- C arrived at hospital and told that his new-born baby died. He spent 20 mins crying with dead baby. Later he was told it’s not his baby- he sued as this info was given negligently. This was successful
Explain the fourth requirement of Alcock Criteria
Req 4: Sudden shock
There must be a sudden shock to the claimant
Key cases:
Sion v Hampstead Health Authority [1994]- C claimed to have suffered P harm after seeing his son die over 2 weeks- this wasn’t sudden shock so claim failed
Polmear v Royal Cornwall Hospitals [2021]- Cs daughter suffering from shortness of breath, doctors misdiagnosed her she died a few months later- considered as sudden shock
What are the three special types of victims?
Rescuers
Involuntary participants
witnesses to self inflicted harm
