Negligence (Psychiatric injury)

Psychiatric injury

The C may claim for psychiatric injury. There are three stages to prove.

First stage of psychiatric injury?

The C’s condition must meet the definition of being a recognised medical condition.

Reilly v Merseyside Health Authority- C must suffer from a recognised psychiatric injury and not simply ordinary human emotions.

Second stage of psychiatric injury?

The illness must be caused by a traumatic event or an ‘assault on the senses’.

Sion v Hampstead Health Authority- there has to be a sudden appreciation of the horrifying events.

Third stage of psychiatric injury?

The C must be a primary or secondary victim.

A primary victim is a person who reasonably fears for their own physical safety or within the zone of danger. In page v Smith, a two stage test was established:

Primary victims don’t have to show that the psychiatric injury was foreseeable, merely that some kind of personal injury was foreseeable. Secondly, the primary victim doesn’t have to be a person of normal fortitude.

A secondary victim is an unwilling witness to the traumatic incident in question but is not personally in danger of physical harm.

What is the criteria established for secondary victims?

Alcock- CWIFF

1) you must have close ties of love and affection with the primary victim. Covers spouses and children (must be proven in other relationships).

2) you must witness the accident or it’s immediate aftermath with your own unaided senses. McLoughlin v O’Brien- “immediate aftermath” requires victims to be in their immediate post-accident state, and not “cleaned up”.

3)the psychiatric injury must be Induced by shock. Lord Ackner- this is “the sudden appreciation of a horrifying event, which violently agitates the mind”. Psychiatric injury caused over a period of time is not recoverable (Sion/North Glamorgan NHS Trust v Walters).

4) they must prove the psychiatric injury was foreseeable.

5) they must be a person of normal fortitude.

Side rules

SR- Claims by rescuers should be allowed if they suffer psychiatric injury- Chadwick v British Transport.

SR- Mcfarlane- a bystander must have a sufficient degree of proximity in order to claim, requiring both nearness in time and place and a close relationship of love and affection between the C and the V.