Psychiatric Injury

Positive Psychiatric Illness (PPI)

To make a psychiatric claim, the claimant must suffer from a positive psychiatric illness, not just emotional distress. The law does not compensate for normal grief, sorrow, or distress. This principle was established in McLoughlin v O'Brian.

Primary Victims

Those who suffer physical and psychiatric harm (as in Simmons v British Steel) or those who suffer psychiatric harm as a result of being exposed to the risk of physical injury but not actually being physically harmed (as seen in Page v Smith).

Secondary Victims

Individuals who were not at risk of physical harm but have suffered psychiatric harm after witnessing the incident or its immediate aftermath, which tends to be extended to around two hours after the event (as in Atkinson v Seghal).

Rescuers as Secondary Victims

Rescuers will typically be regarded as secondary victims unless they were in physical danger themselves. If a rescuer was exposed to the risk of physical harm during the act of rescue, they may be considered a primary victim instead. (White v Chief Constable of South Yorkshire Police)

Paul v Royal Wolverhampton NHS Trust

Paul v Royal Wolverhampton NHS Trust established that certain criteria must be met to determine whether a secondary victim is owed a duty of care.

Close Tie of Love and Affection (Paul v Royal Wolverhampton NHS Trust)

For a secondary victim to claim, they must have a close tie of love and affection to the primary victim. If the psychiatric injury is caused by witnessing the death or injury of another person, the claimant must show a sufficiently proximate relationship to that person. Such ties are presumed between parents and children, spouses, and fiancés. For other relationships, such as siblings, ties of love and affection must be proven.

Proximity to the Event/Immediate Aftermath (Paul v Royal Wolverhampton NHS Trust)

The claimant must be in close physical proximity to the event or its immediate aftermath. This means they must have perceived the incident with their own senses, either as an eye-witness to the event, hearing it in person, or seeing its immediate aftermath. The immediate aftermath includes seeing a primary victim in an untreated state, as seen in McLoughlin v O'Brian.

Direct Perception (Paul v Royal Wolverhampton NHS Trust)

The claimant must have directly perceived the event or its aftermath using their own senses. This means witnessing the scene or the immediate aftermath firsthand, excluding events seen via TV or information relayed by third parties.

Reasonable Foreseeability of Psychiatric Harm (Paul v Royal Wolverhampton NHS Trust)

It must be reasonably foreseeable that a person of normal fortitude would suffer psychiatric harm as a result of the defendant's breach of duty. The thin skull rule does not apply to secondary victims. Therefore, a person who is especially susceptible to shock or psychiatric injury will not be owed a duty of care.

Breach of Duty - Reasonable Man Test

In Blyth v Birmingham Waterworks Co, negligence was described as "the omission to do something which a reasonable man... would do, or doing something which a prudent and reasonable man would not do." The test is objective.

Breach of Duty - Standard of Care

The reasonable man is judged by an ordinary and competent standard in their activity. Examples of this include: Learner drivers: Judged as qualified drivers (Nettleship v Weston), Children: Judged as reasonable children of their age (Mullin), Professionals (including trainees): Judged by professional standards (Bolam, Wilsher v Essex), DIY enthusiasts: Judged as competent amateurs (Wells v Cooper).

Breach of Duty - Risk Factors: Likelihood of Harm

Courts look at a number of factors to decide what is reasonable. The likelihood of harm must be compared to the practicality of precautions required. The defendant is expected to take reasonable steps, but they don't have to go to great lengths or expense to eliminate all possible risks (Latimer).

Breach of Duty - Risk Factors: Special Characteristics

If the claimant has special characteristics, such as being disabled, greater care is required. A reasonable person must take the claimant's vulnerabilities into account when deciding on the standard of care (Paris).

Breach of Duty - Risk Factors: Social Utility

If the activity has social value or importance, the reasonable person may take greater risks. Social utility justifies taking significant risks if the activity is valuable, like an emergency service worker responding to a call (Watt v Hertfordshire).

Breach of Duty - Risk Factors: Unforeseen Risks

A defendant is not expected to guard against unforeseeable risks. The reasonable person would not be expected to prevent harm that could not have been foreseen (Roe v Minister of Health).

Damage - Causation in Fact

The 'but for' test - damage must not have occurred without the defendant's breach (Barnett).

Damage - Remoteness of Damage: Foreseeability

Only losses that are reasonably foreseeable are recoverable. If the type of harm is foreseeable, the defendant can be held liable, even if the specific way the harm occurs is not (The Wagon Mound).

Damage - Remoteness of Damage: Manner of Harm

The manner in which harm occurs does not need to be foreseeable, as long as the type of harm was (Hughes v Lord Advocate).

Damage - Remoteness of Damage: Extent of Harm

The precise extent of harm does not need to be foreseeable, as long as the type of harm is foreseeable (Bradford v Robinson Rentals).

Damage - Thin Skull Rule

Under the thin skull rule (Smith v Leech Brain), the defendant is liable for the full extent of the damage caused, even if the claimant has an unknown vulnerability. The defendant must 'take their victim as they find them.' This rule only applies to primary victims.

Damage - Multiple Causes

If the defendant's breach is one of several possible causes, there is no liability (Wilsher v Essex). However, if there are multiple possible defendants, a claim may still succeed (Fairchild).

Damage - Breaking the Chain of Causation: Natural Events

The chain of causation may be broken by natural events like a severe storm at sea (Carslogie Steamship Co.), where the event is unforeseeable and sufficiently intervenes in the chain.

Damage - Breaking the Chain of Causation: Criminal Acts

The chain of causation can be broken by criminal acts of third parties (Lamb v Camden).

Damage - Breaking the Chain of Causation: Gross Negligence

The chain of causation may be broken if there is gross negligence on the part of a third party (Knightley v Johns).

Damage - Breaking the Chain of Causation: Victim's Instinctive Reaction

However, the chain of causation will not be broken by the victim's instinctive reaction (Scott v Shepherd).