Pure Psychiatric Injury Tort Law

Question 1

What does Pure Psychiatric mean

Answer 1

• Someone suffers a psychiatric condition
• As a result of someones negligence
• Not consequential on physical harm (secondary)

Eg: PTSD, Depression, Anxiety

Pure = Injury does not lead to mental health

Question 2

What other type of psychiatric injury negligence is there that needs to be distinguished from the principle we have here

Answer 2

Different from consequential psychiatric injury

Johnson v Le Roux Fourie

Pure psychiatric injury: Mental harm without any accompanying physical injury

Consequential psychiatric injury: Mental harm that arises as a direct result of a physical injury

Question 3

Pre-Conditions for Pure psychiatric injury

Answer 3

1.) Recognised Psychiatric Injury

2.) The Type of Claimant

Question 4

1st Precondition for Pure Psychiatric Injury

Answer 4

• ‘Recognised’ psychiatric illness: Stems from **McLoughlin v O’Brian **
• Followed in Alcock v CC of South Yorkshire Police [1992]
• Recently upheld as valid in Paul v Royal Wolverhampton [2024]

Paul v Wolverhampton - had a chance to move on from this principle but decided not to. This is for policy reasons. One incident there could arise a number of claims (someone dies in a football stadium, can everyone sue?)

Question 5

How to diagnose psychiatric injury

Answer 5

International Classification of Diseases and Related Health Problems textbook

Question 6

Do the courts always adhere to the textbook classifications?

Answer 6

Zeromska-Smith v United Lincolnshire Hosp NHS Trust

If the Claimant has suffered injury, including mental injury, as a primary victim it is unnecessary for her to show that what she has suffered amounted at the relevant time to a formal classified psychiatric injury. In particular, although damages cannot be recovered for ‘normal’ bereavement, in my judgment damages can be recovered for ‘abnormal’ bereavement or a pathological grief disorder and it matters not whether this amounts to a formal psychiatric diagnosis within ICD-10 or DSM-5.

Question 7

What is not included or treated as a pure psychiatric injury?

Answer 7

1. Reilly v Merseyside HA (1994) - Fear, Distress, and Anxiety. This is even if the anxiety is intense. De Minimis

**2.) RK (on behalf of AK and MK) v Oldham NHS Trust [2003] **- Grief and Distress do not count either

Neither of these cases are compensable for damages

Reilly - stuck in lift for an hour, panick-stricken. Nauseos + vomiting after release from the lift. Physical injury suffered did not get over de minimis threshold of injury.

None of what he suffered was qualified psychiatric injury

RK -

Question 8

Second Precondition

Answer 8

Type of Claimant

1. Primary Victim
2. Secondary Victim
3. Elevated Primary
4. Residuary Category

Question 9

Primary Victim + Secondary Victim distinction

Much better to be primary (duty of care requirements are easier)

Answer 9

No bright line - can fit into both or neither

Where that happens, courts have been prepared to put the victim as a residuary

Question 10

Primary Victim definition

Answer 10

1.) “One who was involved, either mediately or immediately as a participant in an event,”

BUT NOW

2.) “Range of foreseeable physical injury/zone of physical danger” (Lord Hope) **CURRENT NARROW ONE WHICH STANDS
**
The definiton waxed and wained

1.) Alcock [1992] - Primary victim ‘participants’ would include (a) those who feared for their own safety; (b) rescuers; and (c) involuntary participants in the event.

2.) Johnston v NEI Intl Combustion Ltd

Question 11

Questions to ask tutor

Answer 11

Note that, in Paul v Wolverhampton, the UKSC said that Page v Smith and W v Essex ‘have little bearing on the matters before us’ (at [147]) – and that is because those cases involved a different type of victim – Paul was only concerned with secondary victims

Question 12

Who is the typical Primary Victim

Answer 12

• a participant. … directly involved in the accident, and well within the range of foreseeable physical injury

Exception * Paige v Smith*

(All the definitions agree on this)

Facts: Driving car on the road, opposite lane car cuts in front of him. Minor car accident (both cars could be driven away). Following accident Mr Paige, however, got tremendous fatigue -> chronic fatigue syndrome. Could not work. He has had chronic fatigue syndrome previously. Sued for negligent driving with damages for pure psychiatric injury. Allowed Mr Paige for negligently pure psychiatric injury, despite it being unforeseeable.

Question 13

Donachie v Chief Constable of The Greater Manchester Police

Answer 13

Police detective constable part of drug squad team

Police operation had to tag underside of a vehicle (donachie)

He did it but it did not work and tried to do it 9 times before realising battery was not working properly

Observed he was at a grave risk of physical injury

As a result of the stresses, he got PTSD

Able to recover for pure psychiatric injury

Question 14

Proviso to the category of Primary Victims

Answer 14

‘
**Fagan v Goodman **
- Must have actually been in the zone OR believed they were in the zone of danger
- Not involved in the accident (providng comfort + assistance to the person who crashed in front of her)
- On the evidence, she was never in the zone of physical danger, the crash occured in front of her

McFarlane v EE Caledonia [1994

• Oil rig explosion (C was 550 m away), sought to get closer and closest he got was 100 metres
• Sued for PTSD
• Was not in the zone of danger when the rig exploded