Psychiatric Injury Flashcards
(22 cards)
Is psychiatric harm a separate tort?
No. The tort is still negligence. Psychiatric harm is a form of loss or damage within a negligence claim.
Why is psychiatric harm treated differently in negligence law?
Due to policy concerns:
- Floodgates: Too many potential claimants.
- Crushing liability: Excessive damages disproportionate to the wrongdoing.
- Fraudulent claims: Fear of undetectable and exaggerated claims due to diagnostic uncertainty.
What is the definition of psychiatric harm for legal purposes?
It must be:
- A medically recognised psychiatric illness, or
- A shock-induced physical condition (e.g. heart attack, miscarriage).
What are the three types of victims in psychiatric harm claims?
Actual victim – suffers physical and possibly psychiatric injury.
Primary victim – in danger zone; suffers psychiatric harm from fear for own safety.
Secondary victim – outside danger zone; suffers psychiatric harm from fear for others.
Who is a primary victim?
Someone within the danger zone, who suffers psychiatric harm due to fear for their own safety.
What standard must psychiatric harm meet?
It must be medically recognised (e.g. PTSD, depression, ME).
Hinz v Berry: grief, sorrow, and worry are not recoverable.
What does the thin skull rule mean in this context?
If physical harm is foreseeable, the defendant is liable for all psychiatric harm, even if the claimant suffers more severely due to pre-existing conditions.
Who is a secondary victim?
Someone who suffers psychiatric harm due to fear for another person’s safety, usually a close relative, but who is not themselves in danger.
What is the test for duty of care to a secondary victim?
The Alcock criteria must be satisfied:
a) Psychiatric harm must be reasonably foreseeable in a person of ordinary fortitude.
b) There must be a close relationship of love and affection with the victim.
c) There must be proximity in time and space to the event or its immediate aftermath.
What is the foreseeability requirement for secondary victims?
Claimant must show that a person of ordinary fortitude in their position could foreseeably suffer psychiatric illness.
When does the thin skull rule apply to secondary victims?
Once foreseeability is established, any extent of psychiatric harm is recoverable.
What counts as a “close relationship”?
Presumed for:
Parent/child
Spouses
Engaged couples
Others must prove it with evidence.
What does proximity in time/space mean?
Claimant must witness the event or its immediate aftermath, with their own unaided senses.
What about televised events?
Generally not sufficient unless identifiable individuals are broadcast (Alcock). Otherwise, it’s not the same as direct perception.
Medical Crisis?
- No duty owed to relatives who witness medical crises resulting from delayed treatment.
- Alcock criteria apply only to accidents, not to drawn-out illnesses or deaths from medical causes.
- Accident must be sudden, traumatic, and external.
Is sudden shock still required?
No. Paul overruled the requirement from Alcock. What matters is direct perception of the accident or aftermath.
Can claimants recover for witnessing the consequences, not the event?
No. Claimants must be present at the event or its immediate aftermath, not just witness its consequences
Are rescuers given special status in psychiatric harm claims?
No. They must qualify as primary or secondary victims.
What are assumption of responsibility cases?
Where a duty arises because the defendant has assumed responsibility for avoiding psychiatric harm to the claimant.
In what relationships might assumption of responsibility apply?
Employer/employee
Doctor/patient
Police/informant
Occupational Stress Claims?
- Was psychiatric harm reasonably foreseeable?
- Foreseeability depends on:
a) Nature and extent of work
b) Signs of stress
c) Size/resources of employer and practical steps available
Does the claimant’s fortitude matter once harm is foreseeable?
No. Once the threshold is crossed, even a person of ordinary fortitude may be owed a duty.
