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Negligence: Pure Psychiatric Harm - Coggle Diagram
Negligence: Pure Psychiatric Harm
Different from psychiatric harm as a consequence of physical injury, where
As long as
physical harm was reasonably foreseeable, psychiatric harm counts as part of tort too
and thus damages are relevant
Even
if psychiatric harm was not foreseeable, one is still liable if physical harm was
Egg shell skull rule
Primary victim
Someone in the:
Actual area of danger created by defendant's negligent act
OR reasonably believes themselves to be in the actual area of danger (think of suffering psychiatric harm from reasonable fear, even if they aren't factually at risk)
Owed duty of care (as negligence goes)
in relation to psychiatric harm
even if the physical injury does not occur
provided there was a foreseeable risk
of
physical injury
NO requirement psychiatric harm be foreseeable as result of defendant's actions
Secondary victim
Someone
outside the actual area of danger
but affected by defendant's negligent act
Typically bystanders who witness consequences of defendant's negligence
without being in danger themselves
MUST meet all following criteria
Reasonably foreseeable a person of normal fortitude (avg strength)
would suffer a psychiatric illness
in the circumstances
Secondary victim must have
close ties of love and affection with person endangered by defendant's negligence
Proximity to accident in time and space;
present at the accident or its immediate aftermath
Must have witnessed event with their
own unaided senses
Limits on duty of care
(REMEMBER, UNLESS THERE IS A PHYSICAL INJURY WITH CONSEQUENTIAL PSYCHIATRIC HARM), IT
MUST
MEET THESE RULES
Psychiatric harm suffered
must
amount to
medically recognised psychiatric condition/
shock-induced physical condition
Counts: PTSD, Anxiety, Depression
Don't count: simple anxiety, alarm, distress
Sudden shock
is
almost
always essential, but some exceptions for primary victims
Secondary victims:
If the harm develops gradually (for example, seeing a relative suffering over time in the hospital due to negligence), no duty of care is owed to the secondary victim because the harm wasn't caused by a sudden, shocking event.
No duty of care is owed to a secondary victim unless the psychiatric harm is caused by a sudden, shocking event (something unexpected and traumatic that happens all at once).
Primary victim exceptions
For primary victims, the
requirement of a sudden shock does not always apply
.
Example: A mother who suffered psychiatric harm when her baby was born disabled due to negligent medical treatment during labour. Mother's reaction caused her to suffer
recognised psychiatric illness
(remember rule that this is needed). Event here was not a sudden shock because the harm to mother was caused over extended period, both during birth and hours afterward
This exception for primary victims recognises that the harm may occur over time (during and after labour), but the connection between the victim and the event (e.g., the mother and her baby) justifies a duty of care.
If employee suffers psychiatric illness from stress at work over prolonged period, sudden shock rule is not relevant here, as employer owes a duty of care