Learning Outcomes
This article outlines the legal principles governing negligence claims for pure psychiatric harm suffered by primary victims. It details how a duty of care is established for primary victims, the requirements for bringing a successful claim, including the necessity of a recognised psychiatric illness caused by a sudden shocking event, and the applicability of the 'eggshell skull' rule. Understanding these elements is essential for identifying liability in relevant scenarios for the SQE1 assessment.
SQE1 Syllabus
For SQE1, a practical understanding of negligence claims, including those for psychiatric harm, is required. You will need to apply the principles relating to primary victims to specific factual scenarios. Pay attention to:
- Distinguishing primary victims from secondary victims.
- The requirements for establishing a duty of care towards primary victims, particularly the role of foreseeable physical injury.
- The necessity of a recognised psychiatric illness resulting from a sudden shocking event.
- The application of the 'eggshell skull' rule in the context of psychiatric harm.
- Identifying the circumstances where a claim by a primary victim is likely to succeed or fail.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is the key test for establishing a duty of care towards a primary victim suffering psychiatric harm?
- True or False: For a primary victim claim, the psychiatric harm itself must be reasonably foreseeable.
- Which type of harm is NOT usually sufficient on its own to ground a claim for pure psychiatric harm? a) Post-Traumatic Stress Disorder (PTSD) b) Pathological Grief Reaction c) Simple grief and distress d) Severe Depressive Illness
Introduction
In negligence claims, damages can be awarded not only for physical injuries but also for psychiatric harm. However, the courts have traditionally been cautious about claims solely for psychiatric injury, particularly where there is no accompanying physical harm ('pure psychiatric harm'). Special rules apply, and claimants are often categorised as either 'primary' or 'secondary' victims. This article focuses specifically on primary victims.
Key Term: Pure Psychiatric Harm Psychiatric injury suffered by a claimant which is not a consequence of any physical injury also sustained by the claimant in the same incident.
Understanding the distinction between primary and secondary victims is fundamental. Primary victims are those directly involved in the incident and within the zone of potential physical danger.
Key Term: Primary Victim An individual who suffers psychiatric harm because they were directly involved in an incident caused by the defendant's negligence, putting them within the zone of actual or reasonably apprehended physical danger.
The legal principles governing claims by primary victims differ significantly from those applicable to secondary victims (who typically witness horrific events but are not directly endangered).
Establishing a Duty of Care for Primary Victims
The seminal case regarding primary victims is Page v Smith [1996] AC 155. This case established that if a defendant owes a claimant a duty of care not to cause physical injury, they generally also owe a duty of care not to cause psychiatric injury.
The key test for establishing a duty of care towards a primary victim suffering pure psychiatric harm is whether the defendant could reasonably foresee that their conduct would expose the claimant to the risk of physical injury.
- If physical injury is foreseeable, a duty of care is owed regarding any psychiatric harm that materialises, even if psychiatric harm itself was not foreseeable.
- If physical injury is not foreseeable, no duty of care is owed for pure psychiatric harm suffered by a primary victim.
Worked Example 1.1
Anisa is involved in a minor car collision caused entirely by Ben's negligent driving. Anisa is physically unharmed, but the shock of the near-miss causes her to develop severe anxiety and panic attacks, diagnosed as PTSD. Ben argues he could not have foreseen such a severe psychiatric reaction from a minor collision.
Is Ben likely to owe Anisa a duty of care regarding her PTSD?
Answer: Yes. As Anisa was directly involved in the collision caused by Ben's negligence, she was within the zone of potential physical danger. It is reasonably foreseeable that negligent driving could cause some physical injury in a collision. Therefore, under the principle in Page v Smith, Ben owes Anisa a duty of care in respect of her psychiatric injury (PTSD), even if the extent or type of psychiatric harm was not itself foreseeable.
Requirements for a Successful Claim
Beyond establishing a duty of care, a primary victim must prove other elements common to negligence claims, along with specific requirements related to psychiatric harm.
Recognised Psychiatric Illness
The claimant must demonstrate that they have suffered a genuine psychiatric illness recognised by relevant medical professionals.
- Examples include Post-Traumatic Stress Disorder (PTSD), pathological grief disorder, clinical depression, and severe anxiety disorders.
- Mere distress, sorrow, fear, or grief, unless they develop into a recognised condition, are generally not sufficient to ground a claim.
Sudden Shocking Event
The psychiatric harm must typically result from a sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It cannot usually arise from a gradual accumulation of stress over time.
Key Term: Sudden Shock The requirement that the psychiatric harm must be induced by the sudden and direct impact of a specific event or its immediate aftermath, rather than a gradual process.
Causation
The claimant must prove, on the balance of probabilities, that the defendant's breach of duty factually caused the recognised psychiatric illness. The 'but for' test and considerations regarding intervening acts apply as in standard negligence claims (see related articles on Causation).
Remoteness
While foreseeability of physical harm establishes the duty, the 'eggshell skull' rule applies to the extent of psychiatric harm.
Key Term: Eggshell Skull Rule (Psychiatric Harm) A defendant must take their victim as they find them. If physical injury was foreseeable, the defendant is liable for the full extent of the psychiatric harm suffered by a primary victim, even if that harm is more severe than expected due to the claimant's pre-existing vulnerability.
This means that if a primary victim is particularly susceptible to psychiatric illness, and suffers a more severe illness than a person of ordinary fortitude might have, the defendant remains liable for the full extent of the harm, provided the initial requirement of foreseeable physical injury is met (Page v Smith).
Worked Example 1.2
Chen is operating machinery at work when, due to his employer's negligence, a heavy component falls nearby, narrowly missing him. Chen suffers no physical injury but develops a recognised anxiety disorder. Chen had a pre-existing (but previously dormant) anxiety condition, making him more vulnerable to psychiatric harm than the average person. The employer argues they could not foresee such a severe reaction.
Is the employer liable for the full extent of Chen's anxiety disorder?
Answer: Yes. Chen is a primary victim as he was in the zone of potential physical danger. It was foreseeable that the employer's negligence could cause physical injury. Therefore, a duty of care is owed regarding psychiatric harm. Under the 'eggshell skull' rule, the employer must take Chen as they find him, including his pre-existing vulnerability. The employer is liable for the full extent of the recognised psychiatric illness, even if it is more severe than might have been foreseen in a person of ordinary fortitude.
Exam Warning
Do not confuse the requirements for primary and secondary victims. For primary victims, the test hinges on the foreseeability of physical injury. For secondary victims (witnesses not in danger), the test is stricter and requires foreseeability of psychiatric injury in a person of normal fortitude, plus proximity tests established in Alcock v Chief Constable of South Yorkshire Police [1992]. Ensure you apply the correct test based on the claimant's status.
Rescuers
Rescuers attending the scene of an accident caused by the defendant's negligence were once thought to hold a special status. However, the case of White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 clarified that rescuers are generally treated like other victims.
- A rescuer will be considered a primary victim only if they were objectively exposed to physical danger or reasonably believed they were in physical danger while performing the rescue.
- If a rescuer was not in physical danger, they are a secondary victim and must satisfy the stricter Alcock criteria to claim for pure psychiatric harm.
Revision Tip
When faced with a scenario involving psychiatric harm, the first step is always to determine whether the claimant is a primary or secondary victim. This dictates the applicable rules for duty of care. Remember, primary victims are those within the zone of physical danger.
Key Point Checklist
This article has covered the following key knowledge points:
- Pure psychiatric harm is injury without physical impact.
- Primary victims are directly involved in the incident and within the zone of physical danger.
- A duty of care for pure psychiatric harm is owed to a primary victim if physical injury was reasonably foreseeable (Page v Smith).
- It is not necessary to foresee the psychiatric harm itself for primary victims.
- A claim requires a recognised psychiatric illness caused by a sudden shocking event.
- The 'eggshell skull' rule applies: the defendant is liable for the full extent of the psychiatric harm, even if exacerbated by the claimant's vulnerability.
- Rescuers are typically treated as primary victims only if they were themselves in physical danger.
Key Terms and Concepts
- Pure Psychiatric Harm
- Primary Victim
- Sudden Shock
- Eggshell Skull Rule (Psychiatric Harm)
