Psychiatric Injury

1. What must a claimant be suffering from to make a claim for psychiatric injury?

Under McLoughlin v O'Brian, a claimant must be suffering from a positive psychiatric illness (PPI), such as PTSD, to make a claim.

2. What did Reilly establish about normal human emotions and psychiatric injury?「」

Under Reilly, "the excitement of normal human emotion, such as grief or emotional distress, is not compensatable." Only positive psychiatric illnesses can be remedied.

3. How does the law distinguish between different types of victims in psychiatric injury claims?

The law distinguishes between primary and secondary victims.

4. Who qualifies as a primary victim in psychiatric injury claims?

Primary victims are those who suffer physical and psychiatric harm (Simmons v British Steel) or those who suffer psychiatric harm after being exposed to the risk of physical injury, even if they are not physically harmed themselves (Page v Smith).

5. How does the thin skull rule apply to primary victims?

Both of these cases illustrate that the thin skull rule applies to primary victims, who are owed a duty of care and can claim if both breach and damage can be established.

6. Who qualifies as a secondary victim in psychiatric injury claims?

Secondary victims are those 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 2 hours after the incident (Atkinson v Seghal).

7. How are rescuers treated in relation to secondary victims?「」

Additionally, a rescuer will be regarded as a secondary victim unless they are in physical danger.

8. What did Paul establish about secondary victims and duty of care?

Paul established five criteria as to whether or not a secondary victim is owed a duty of care.

9. What is the first criterion for secondary victims under Paul?「」

Firstly, there must be an accident (an unexpected and unintended event which caused death, injury or risk by violent means to at least one primary victim).  This does not include witnessing death/injuries caused by negligence of medical staff. 

10. What is the second criterion for secondary victims under Paul?「」

There must be 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. Ties are presumed only between parents and children, spouses, and fiancés. In other relations, including siblings, ties of love and affection must be proven.

11. What is the third criterion for secondary victims under Paul?「」

The claimant must perceive an incident with their own unaided senses as an eye-witness to the event, hearing the event in person, or viewing its 'immediate aftermath'. This requires close physical proximity to the event. The 'immediate aftermath' includes seeing a primary victim in an untreated state (McLoughlin v O'Brian).

12. What is the fourth criterion for secondary victims under Paul?「」

The claimant must have witnessed the scene or immediate aftermath with their own senses. Direct perception usually excludes events witnessed by television or informed of by a third party.

13. What is the fifth criterion for secondary victims under Paul?「」

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