Workshop 6 - Special type of loss in negligence: psychiatric harm
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21 Terms
What is psychiatric harm in negligence, and why do the courts apply special rules to these claims?
Psychiatric harm is a type of loss or damage that can be claimed in the tort of negligence. It is not a separate tort.
The usual duty of care principles do not always apply to psychiatric harm claims.
Because of the particular difficulties and policy concerns surrounding psychiatric injury, the courts apply special criteria when deciding whether a duty of care exists.
The type of victim suffering psychiatric harm can affect whether a duty of care is owed.
Key points:
Psychiatric harm is part of the loss or damage element of negligence.
A claimant must first establish a duty of care under the special rules for psychiatric harm.
If a duty is established, the claimant must still prove:
Breach of duty;
Factual causation.
The defendant may then raise issues of:
Legal causation and remoteness; and
Any applicable defences.
What are the main policy reasons for restricting claims for negligently inflicted pure psychiatric harm?
The courts restrict recovery for pure psychiatric harm for three main policy reasons:
Floodgates
Without limits, a very large number of people could claim for psychiatric harm arising from a single incident.
Example: In Alcock v Chief Constable of South Yorkshire Police [1992], potential claimants could have included spectators, TV viewers, radio listeners, and those who witnessed the aftermath.
Crushing liability
Defendants could face damages that are out of proportion to their negligent conduct.
Example: A negligent driver could be liable to anyone who witnessed a traumatic accident and suffered psychiatric harm.
Fraudulent or exaggerated claims
Historically, courts have been concerned that psychiatric injuries may be more difficult to verify than physical injuries due to diagnostic uncertainty.
This creates a perceived risk of fraudulent or exaggerated claims that are difficult to detect.
What is the definition of psychiatric harm in negligence?
Psychiatric harm is a psychiatric illness suffered by the claimant as a result of perceiving traumatic events.
Historically, these claims were referred to as "nervous shock."
To be recoverable, the harm must be either:
A medically recognised psychiatric illness; or
A shock-induced physical condition, such as a heart attack.
Key point: Mere grief, distress, sorrow, or emotional upset is not enough—the claimant must suffer a recognised psychiatric illness or a shock-induced physical injury.
What is the difference between a primary victim and a secondary victim in psychiatric harm claims?
The distinction, introduced by Lord Oliver in Alcock, is crucial because different duty of care tests apply depending on whether the claimant is a primary or secondary victim.
Primary victim
A primary victim suffers psychiatric harm due to a reasonable fear for their own physical safety (objective test).
They are directly involved in the traumatic event.
They are within the danger zone.
They do not suffer physical injury. (If they do, they are an actual victim and bring an ordinary negligence claim for both physical and consequential psychiatric injury.)
Examples:
Dulieu v White [1901] – A pregnant barmaid reasonably feared for her own safety when a horse and carriage crashed into her pub, causing psychiatric harm and premature birth.
Page v Smith [1996] – A claimant involved in a car accident suffered no physical injury, but the accident worsened his ME. He was a primary victim because he reasonably feared for his own safety.
Secondary victim
A secondary victim suffers psychiatric harm because of fear for someone else's safety, usually a close relative.
They are not in danger themselves.
They witness the traumatic event or its immediate aftermath.
They suffer psychiatric harm from seeing or learning of harm to another person.
Example:
Alcock v Chief Constable of South Yorkshire Police [1992] – All claimants were secondary victims because they suffered psychiatric harm after witnessing or discovering the Hillsborough disaster affecting relatives or friends, without being in danger themselves.
Key distinction:
Primary victim: Psychiatric harm from fear for their own safety.
Secondary victim: Psychiatric harm from fear for another person's safety.
How are bystanders and rescuers classified in psychiatric harm claims?
Bystanders and rescuers have no special legal status. They must be classified as either a primary victim or a secondary victim.
Primary victim: A bystander or rescuer who suffers psychiatric harm because they were exposed to danger or reasonably feared for their own physical safety.
Secondary victim: A bystander or rescuer who was not in danger and suffered psychiatric harm from witnessing traumatic events affecting others.
Key cases:
Cullin v London Fire & Civil Defence Authority [1999]
A firefighter suffered psychiatric harm after attempting to rescue colleagues trapped in a burning building.
He was a primary victim because he was exposed to danger and reasonably feared for his own safety.
White v Chief Constable of South Yorkshire Police [1999]
Police officers involved in the Hillsborough disaster developed PTSD after assisting victims.
They were secondary victims because they were not exposed to physical danger.
Being professional rescuers or employees does not automatically make someone a primary victim.
McFarlane v EE Caledonia Ltd [1994]
A claimant aboard a rescue vessel during the Piper Alpha disaster developed PTSD.
He was not a primary victim because he was not objectively in danger, despite his own belief.
He was treated as a secondary victim and failed to satisfy the stricter Alcock requirements.
Key principle:
Whether a bystander or rescuer is a primary or secondary victim depends on objective exposure to danger, not on their role or occupation.
What is the test for establishing a duty of care for primary victims suffering psychiatric harm?
The test comes from Page v Smith [1996] 1 AC 155.
For a primary victim, the defendant owes a duty of care for psychiatric harm if:
The defendant could reasonably foresee that the claimant might suffer physical injury as a result of the negligence; and
If physical injury was foreseeable, the ordinary principles for establishing a duty of care apply.
Key points:
The claimant does not need to show that psychiatric harm itself was reasonably foreseeable.
It is enough that physical injury was reasonably foreseeable.
This makes it much easier for primary victims to establish a duty of care compared with secondary victims, who must satisfy the stricter Alcock criteria.
Before establishing duty, the psychiatric harm suffered must still be a recognised psychiatric illness in law.
Key case: Page v Smith
The claimant was involved in a car accident caused by the defendant’s negligence.
Although he suffered no physical injury, the accident caused a relapse of ME, resulting in permanent disability.
He was a primary victim because he was within the danger zone and physical injury was reasonably foreseeable.
What type of psychiatric harm is required to bring a claim for pure psychiatric harm?
The claimant must suffer either:
A medically recognised psychiatric illness; or
A shock-induced physical condition (e.g. miscarriage or heart attack).
Courts determine whether an illness is medically recognised by considering:
Medical manuals;
Medical records and history;
Expert medical evidence;
Previous case law.
Key principle:
Negligence does not create liability for normal emotions such as:
Fear;
Distress;
Grief;
Sorrow;
Worry.
Key case: Hinz v Berry [1970] 2 QB 40
The claimant witnessed her husband being killed and children injured in a car accident.
She claimed damages for grief, worry, financial stress, and depression.
The court only awarded damages for depression, as this was the only medically recognised psychiatric illness caused by witnessing the accident.
Grief, sorrow, and worry were not compensable psychiatric illnesses.
Shock-induced physical conditions
A claimant may recover where psychiatric shock causes a physical condition.
Both the psychiatric injury and physical injury must be material.
Key case: Mazhar Hussain v Chief Constable of West Mercia [2008]
The claimant suffered anxiety, stress, and physical symptoms (numbness in his arm and leg).
The court held that:
His anxiety and stress were not a medically recognised psychiatric illness in the form suffered; and
The physical symptoms were not sufficiently material.
The claim failed.
Key point:
The law continues to recognise new psychiatric conditions, including:
Post-traumatic stress disorder (PTSD);
Myalgic Encephalomyelitis (ME);
Pathological grief syndrome (where grief goes beyond normal human emotion).
What must a primary victim show about physical harm to establish a duty of care for psychiatric harm?
A primary victim must show that physical harm was reasonably foreseeable.
The claimant does not need to prove that psychiatric harm itself was foreseeable.
If physical injury was reasonably foreseeable, the claimant can recover damages for psychiatric harm even if no physical injury actually occurred.
Key case: Page v Smith [1996]
The defendant admitted negligent driving but argued that the claimant’s psychiatric harm (a relapse of ME) was not foreseeable.
The House of Lords rejected this argument.
The court held that because physical injury was reasonably foreseeable due to the collision, the claimant could recover for psychiatric harm.
There was no need for psychiatric harm to be separately foreseeable.
Thin skull rule:
Confirmed in Page v Smith.
If physical injury is reasonably foreseeable, the defendant is liable for the full extent of the claimant’s psychiatric harm, even if the claimant suffers more severely due to a pre-existing vulnerability.
Key principle:
For primary victims:
Foreseeable physical injury = duty of care for psychiatric harm.
Psychiatric injury itself does not need to be foreseeable.
How do proximity and fair, just and reasonable considerations apply to primary victims suffering psychiatric harm?
If physical injury is reasonably foreseeable, the court applies the ordinary principles for establishing a duty of care.
Where the court considers proximity and whether it is fair, just and reasonable:
Proximity:
Primary victims are always present at the traumatic event.
Therefore, there is usually geographical proximity between the claimant and defendant.
Fair, just and reasonable:
If the defendant’s negligence foreseeably puts the claimant in fear for their own safety, courts are likely to find it fair, just and reasonable to impose a duty of care for resulting psychiatric harm.
Key principle:
For primary victims, once foreseeable physical harm is established, the remaining duty of care requirements are usually straightforward because the claimant is directly involved in the danger.
What is the structure for analysing a primary victim psychiatric harm claim (duty of care)?
Follow these steps:
1. Identify the parties and tort
Identify the claimant v defendant.
Identify the tort: negligence.
2. Identify the loss
Identify the psychiatric harm suffered (e.g. depression).
Confirm that the harm is:
A medically recognised psychiatric illness; or
A shock-induced physical condition.
3. Identify the claimant as a primary victim
Apply the definition:
The claimant suffered psychiatric harm due to a reasonable fear for their own physical safety.
They were within the danger zone.
4. Establish duty of care
Ask:
Was physical injury reasonably foreseeable as a result of the defendant’s negligence?
If NO → No duty of care is owed.
If YES → Ask whether there is a relevant precedent.
If YES → Apply the precedent.
If NO → Apply the ordinary duty of care principles (proximity and whether it is fair, just and reasonable).
What happens if there is no precedent establishing whether a duty of care is owed to a primary victim?
If there is no clear precedent, the court will consider whether a duty of care should be imposed by analogy with existing cases using the Caparo criteria.
The court will consider:
Analogy with existing cases
Identify legally significant features from previous authorities.
Consider whether the current case is sufficiently similar to cases where a duty has been recognised.
Proximity
Many cases focus on the relationship between claimant and defendant.
These factors may demonstrate proximity.
There is no need to reconsider foreseeability of harm because physical harm has already been established as foreseeable.
Fair, just and reasonable
If there is no clear precedent, deciding whether to impose a duty involves judicial judgement.
The court considers whether it would be fair, just and reasonable to recognise a duty.
Key principle:
The law of negligence should only be developed incrementally and by analogy with existing cases, rather than through major extensions of liability.
What is the test for establishing a duty of care for secondary victims suffering psychiatric harm?
Secondary victims are subject to stricter duty of care requirements because the courts are concerned about limiting the number of potential claimants.
Historically, courts have been cautious about allowing claims for pure psychiatric harm.
In secondary victim cases, additional control mechanisms are applied to restrict liability.
These control mechanisms are known as the Alcock criteria.
Before applying the Alcock criteria:
The claimant must first show that the psychiatric harm suffered is:
A medically recognised psychiatric illness; or
A shock-induced physical condition.
Key distinction:
Primary victims: Easier test — physical injury must be reasonably foreseeable.
Secondary victims: Must satisfy the stricter Alcock criteria to establish a duty of care.
Example issue:
Following a negligent disaster, potential claimants may include:
People physically injured;
Witnesses at the scene;
People watching on television;
Relatives who see injured victims afterwards.
The Alcock criteria determine which of these secondary victims can recover compensation.
What are the Alcock criteria for establishing a duty of care for secondary victims suffering pure psychiatric harm?
The Alcock criteria were established in Alcock v Chief Constable of South Yorkshire [1991] 4 All ER 907 and set out the requirements for a secondary victim to claim for pure psychiatric harm.
A claimant must satisfy all three criteria:
1. Psychiatric harm must be reasonably foreseeable
The defendant must have been able to reasonably foresee that the claimant could suffer psychiatric harm.
2. Proximity of relationship
There must be a sufficiently close relationship between the claimant (secondary victim) and the person who was injured or killed (the primary victim).
Usually this involves close family relationships.
3. Proximity in time and space
The claimant must have been close to the accident or its immediate aftermath.
They must have witnessed the event or its immediate consequences.
Important update:
Previously, secondary victims also had to prove that their psychiatric injury was caused by sudden shock.
This requirement was removed by Paul and another v Royal Wolverhampton NHS Trust [2024] UKSC 1.
A claimant does not need to show sudden shock to establish a duty of care as a secondary victim.
Do not confuse:
Shock-induced physical condition = a type of recoverable harm.
Sudden shock requirement = an old duty of care requirement for secondary victims, which no longer applies.
Key principle:
A secondary victim must satisfy the Alcock criteria (excluding sudden shock) before a duty of care for psychiatric harm will be recognised.
What was the significance of Alcock v Chief Constable of South Yorkshire [1991] 4 All ER 907 in relation to secondary victims?
Alcock established the control mechanisms (Alcock criteria) for determining when a duty of care is owed to secondary victims suffering pure psychiatric harm.
Facts:
The case concerned the 1989 Hillsborough stadium disaster.
Due to police negligence:
96 people were crushed to death;
Over 400 people were physically injured.
Many people:
Witnessed the disaster at the stadium;
Watched it live on television;
Heard it on the radio;
Saw later media coverage.
Relatives and friends of victims brought claims for psychiatric harm.
Issue:
The claimants could not claim as primary victims because they were not within the danger zone and did not fear for their own safety.
They claimed as secondary victims, arguing they suffered psychiatric harm from seeing or fearing harm to their loved ones.
Held:
No duty of care was owed to any of the claimants.
They failed the requirements for secondary victims because they lacked:
Proximity of relationship; and/or
Proximity in time and space to the accident or its immediate aftermath.
Key principle:
Alcock created strict limits on secondary victim claims to prevent unlimited liability and established the criteria that must be satisfied before a duty of care is owed.
What is the first Alcock criterion for secondary victims?
The first Alcock criterion requires that psychiatric harm must be reasonably foreseeable.
The claimant must show that a person of ordinary fortitude (normal resilience) in the same circumstances would have been expected to suffer psychiatric harm.
This differs from primary victims, where only physical injury must be reasonably foreseeable.
Key case: Bourhill v Young [1943] AC 92
Facts:
A motorcyclist negligently crashed and died.
The claimant was pregnant and did not see the accident but heard it and later saw blood on the road.
She suffered a shock-induced stillbirth.
Held:
No duty of care was owed.
Although it was foreseeable that negligent driving could physically injure other road users, it was not foreseeable that a person of ordinary fortitude in the claimant’s position would suffer psychiatric harm.
Thin skull rule:
Once psychiatric harm is reasonably foreseeable in a person of ordinary fortitude, the defendant takes the claimant as they find them.
The claimant can recover for the full extent of their psychiatric harm, even if they suffer more severely due to a pre-existing vulnerability.
Key case: Brice v Brown [1984]
Confirmed that once psychiatric harm is foreseeable, a defendant remains liable even where the claimant’s particular vulnerability makes the injury more severe.
Key distinction:
Primary victim: Foreseeability of physical injury is required.
Secondary victim: Foreseeability of psychiatric harm in a person of ordinary fortitude is required.
What is the second Alcock criterion for secondary victims?
The second Alcock criterion requires the secondary victim to have a close relationship of love and affection with the person who was injured or killed (the victim).
Presumption of close ties
Close ties of love and affection are rebuttably presumed for:
Parent and child;
Husband and wife;
Engaged couples.
This means the defendant can try to prove that, despite the relationship, there was no close emotional bond.
Relationships without a presumption
There is no automatic presumption for:
Grandparents and grandchildren;
Siblings.
The claimant must provide evidence showing a close relationship.
Key quote from Alcock:
Lord Ackner stated that “the quality of brotherly love is known to differ widely – from Cain and Abel to David and Jonathan.”
Key cases
McLoughlin v O’Brian [1982]
A mother suffered psychiatric harm after seeing the immediate aftermath of a car accident involving her husband and children.
She saw her family injured, distressed, and covered in dirt at the hospital two hours after the accident.
The court recognised her close relationship as a parent and allowed her claim.
RE (A Child) v Calderdale and Huddersfield NHS Foundation Trust [2017]
A grandmother successfully claimed as a secondary victim after witnessing injury to her grandchild during birth.
She proved a close relationship of love and affection.
However, following Paul v Royal Wolverhampton NHS Trust [2024], this type of medical crisis claim would now fail because doctors generally do not owe a duty to people witnessing medical crises.
McCarthy v Chief Constable of South Yorkshire [1996]
A half-brother successfully claimed after the Hillsborough disaster.
Evidence showed a particularly close relationship between the brothers.
Strangers
Claims by people who witness injury to strangers are unlikely to succeed.
Courts generally expect people to have the “customary phlegm” of the reasonable person and tolerate witnessing accidents involving strangers.
Key principle:
The closer the relationship between the claimant and victim, the more likely the court is to recognise proximity of relationship. The strongest claims involve parents, children, and spouses.
What is the third Alcock criterion for secondary victims?
The third Alcock criterion requires the claimant to have proximity in time and space to the accident or its immediate aftermath.
The claimant must:
Be present at the accident or its immediate aftermath; and
Experience the event through their own senses (seeing or hearing it).
Immediate aftermath
A claimant does not always need to be physically present at the accident itself.
In McLoughlin v O’Brian [1982], the court extended proximity to include the immediate aftermath of an accident.
Key case: McLoughlin v O’Brian
The claimant arrived at hospital two hours after a car accident.
She saw her husband and children:
Injured;
Distressed;
Covered in dirt and grime from the accident.
The court held she had witnessed the immediate aftermath and allowed her claim.
Lord Wilberforce stated she was “upon the margin” of what was acceptable, but the crucial factor was that her family was in essentially the same condition as they had been at the accident scene.
Limits of immediate aftermath
Alcock v Chief Constable of South Yorkshire
A claimant identified their brother-in-law’s body in a mortuary eight hours after the disaster.
This was not considered the immediate aftermath.
Therefore, the claimant failed the proximity requirement.
Media coverage
A claimant cannot recover simply because they are told about a traumatic event or see it through:
Newspapers;
Television reports;
Radio reports.
The psychiatric harm must come from personally witnessing or hearing the accident or its immediate aftermath.
Reason:
Television images do not usually equal witnessing the event directly because victims may not be identifiable.
If broadcasts show identifiable victims, this may be a novus actus interveniens (a new intervening act) breaking the chain of causation.
Exception suggested in Alcock:
A live broadcast showing clearly identifiable loved ones dying may potentially satisfy the requirement.
Example: Parents watching a live television broadcast of their children dying in a hot-air balloon explosion.
Key principle:
Secondary victims must directly perceive the accident or its immediate aftermath through their own senses; simply learning about the event is not enough.
What was the significance of Paul and another v Royal Wolverhampton NHS Trust [2024] UKSC 1 for secondary victim psychiatric harm claims?
Paul considered whether the Alcock criteria could apply to medical crisis cases, where claimants suffered psychiatric harm after witnessing the death or deterioration of a relative due to negligently missed or untreated medical conditions.
The Supreme Court dismissed all three appeals and held that doctors do not owe a duty of care to relatives who witness a medical crisis.
Key principles from Paul:1. No duty of care in medical crisis cases
Doctors do not owe a duty to protect family members from the trauma of witnessing a relative’s illness, injury, or death.
A doctor’s duty is owed to the patient, not their family.
Treating a patient does not create a doctor–relative relationship.
2. Difference between accidents and medical crises
Accident cases:
Involve an unexpected external event causing injury or death.
Have a clear, identifiable event.
Medical crisis cases:
Usually involve a gradual development of illness, symptoms, and deterioration.
Do not involve a single traumatic event comparable to an accident.
The Supreme Court held that medical crisis cases could not be treated as analogous to cases such as Alcock or McLoughlin.
3. Alcock criteria remain necessary
For secondary victims to recover, they must show:
Close ties of love and affection with the victim;
Presence at the accident or immediate aftermath;
Psychiatric harm caused by direct perception of the accident or immediate aftermath.
Medical crisis cases often fail because there is no clear accident or immediate aftermath.
4. No requirement of sudden shock
The Supreme Court confirmed that a claimant does not need to prove their psychiatric injury was caused by a sudden shock.
They only need to show a causal connection between witnessing the accident and the psychiatric illness.
5. Accident does not need to be horrifying
The claimant only needs to show psychiatric harm was reasonably foreseeable.
There is no requirement that the accident itself must be horrifying.
6. Timing of breach is not decisive
A long gap between the defendant’s negligence and the accident does not automatically prevent recovery.
The key issue is whether the claimant was close in time and space to the accident or immediate aftermath.
Conclusion:
Paul significantly restricted secondary victim claims arising from medical negligence.
A secondary victim claim requires an external traumatic accident, not simply witnessing the effects of a medical condition.
Future cases will determine whether certain events within medical settings can still qualify as an “accident”.
Key principle:
Secondary victims can recover for witnessing an accident, but generally not for witnessing a medical crisis caused by negligent medical treatment.
What was established in Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194 regarding proximity for secondary victims?
A secondary victim must be present at the accident or its immediate aftermath and directly perceive the accident. Psychiatric harm caused by a separate event occurring later will not usually be recoverable.
Facts:
The claimant’s mother suffered an accident at work.
She appeared to recover but unexpectedly died three weeks later due to injuries from the accident.
The claimant witnessed her mother’s death and suffered psychiatric harm.
Held:
The claim failed because the claimant was not present at the time of the original accident or its immediate aftermath.
The Supreme Court in Paul v Royal Wolverhampton NHS Trust [2024] confirmed that Novo was correctly decided.
Reasoning:
Allowing recovery would extend liability too far.
If the claimant could recover after witnessing a death weeks or years later, it would create uncertainty.
A claimant might recover where they witnessed a later death, but not where they missed the immediate aftermath of the accident itself.
Key principle:
The claimant’s proximity to the accident is essential.
There is no claim for psychiatric harm caused by a separate event removed in time from the accident.
The claimant must directly perceive:
The accident; or
Its immediate aftermath.
Important distinction:
Witnessing the injury caused by the accident is not necessary or sufficient.
What matters is direct perception of the accident itself or immediate aftermath.
What is the structure for analysing a secondary victim psychiatric harm claim (duty of care)?
Follow these steps:
1. Identify the parties and tort
Identify the claimant v defendant.
Identify the tort: negligence.
2. Identify the loss
Identify the psychiatric harm suffered (e.g. depression).
Confirm that the harm is:
A medically recognised psychiatric illness; or
A shock-induced physical condition.
3. Identify the claimant as a secondary victim
Apply the definition:
The claimant suffered psychiatric harm due to fear for someone else’s safety.
They were not within the danger zone and did not fear for their own safety.
4. Establish duty of care: Apply the Alcock criteria
The claimant must satisfy all three criteria:
(a) Reasonable foreseeability of psychiatric harm
Would a person of ordinary fortitude in the same circumstances have been expected to suffer psychiatric harm?
(b) Proximity of relationship
Does the claimant have a sufficiently close relationship of love and affection with the victim?
(c) Proximity in time and space
Was the claimant present at the accident or its immediate aftermath?
Did they directly perceive the event through their own senses?
Key principle:
A secondary victim can only recover for psychiatric harm if they satisfy the Alcock criteria.
What are “assumption of responsibility” cases in psychiatric harm claims?
Assumption of responsibility cases involve claimants who do not fit into the categories of actual, primary, or secondary victims, but where the defendant has taken responsibility for protecting the claimant from reasonably foreseeable psychiatric harm.
In these cases, the defendant owes a duty of care because of the relationship between the parties.
Examples of relationships involving assumption of responsibility:
Employer/employee – Waters v Commissioner of Police for the Metropolis [2000]
Doctor/patient – AB v Leeds Teaching Hospital NHS Trust [2004]
Police/police informant – Swinney v Chief Constable of Northumbria Police [1996]
Occupational stress claims
These arise where psychiatric harm is caused by work-related stress, rather than witnessing an accident.
Key case: Walker v Northumberland County Council [1995]
Facts:
The claimant was a social services manager with a heavy and emotionally demanding workload.
He suffered a nervous breakdown due to work pressure.
His employer promised extra support but failed to provide it.
He later suffered a second breakdown.
Held:
Employers owe employees a duty of care for psychiatric harm caused by workplace stress.
There was:
No breach for the first breakdown because it was not reasonably foreseeable.
A breach for the second breakdown because the risk was foreseeable and the employer failed to reduce his workload.
Principle:
An employer must take reasonable steps to prevent psychiatric injury where there is a foreseeable risk of harm from workplace stress.
Key case: Barber v Somerset County Council [2004]
The House of Lords provided guidance on when an employer will be liable for occupational stress claims.
An employer will be in breach where:
1. Psychiatric harm was reasonably foreseeable
The employer knew or should have known that the employee was at risk of psychiatric injury.
2. Foreseeability depends on the circumstances
The court considers:
(a) Nature and extent of the work
Was the workload excessive?
Was the work unusually stressful, emotionally demanding, or intellectually demanding?
(b) Signs of stress
Were there clear warning signs that a reasonable employer should recognise?
Did the employer know the employee was struggling?
(c) Size and resources of the employer
What steps could reasonably be taken?
The employer must balance the needs of other employees and available resources.
Important principle:
Once psychiatric harm is foreseeable, it does not matter whether a person of ordinary fortitude would have suffered the same harm.
Key point:
Assumption of responsibility cases provide a route for recovery where psychiatric harm does not arise from an accident but from a special relationship where the defendant has responsibility for the claimant’s wellbeing.