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Psychiatric Injury

Psychiatric Injury

What is it?

Being held liable for the psychiatric injury someone receives, resulting from a traumatic event caused by the defendant’s negligence.  In order to be liable, the claimant must suffer nervous shock as a result of the traumatic event.  There are two types of victims – primary and secondary.

What is a primary victim?

Someone who is directly involved with the accident [Page v Smith]The plaintiff was involved in a car crash, and as a result a fatigue syndrome that he suffered from started to become frequent again. Primary victims were described as those that were 'directly involved in the accident, and well within the range of foreseeable physical injury'..  They can either suffer:-
(a) Physical injury and, as a result, later suffer psychiatric injury.
(b) Be badly treated after an accident and suffer.
(c) Fear for their own safety during an accident and therefore suffer shock.
It has been seen NOT to include those who believe they have caused the death or injury of another [Hunter v British Coal Corp]There was an explosion in a coal mine, and Hunter ran to turn off the water pump. 15 minutes later, he was informed that an employee had been killed in the explosion, was not held to be a primary victim..

There only had to be reasonable foreseeability that there will be some harm to the plaintiff, what sort of harm, or the degree of which it is developed by the plaintiff does not matter.

What is a secondary victim?

Someone who is affected from the position of a spectator, or as a bystander [Alcock v Chief Constable of South Yorkshire]Several fans of a Liverpool football match saw friends and family die during the Hillsborough disaster. Secondary victims were described as those that were a 'passive and unwilling witness of injury caused to others'..  Suffers psychiatric harm after witnessing an event and fearing for another’s safety.  Must satisfy all of the following:-
(a) Proximity in time and space to the event. (Seeing a corpse some time after it’s death has been seen to not count. [McLoughin])
(b) The perception of the event to be experienced by the victims unaided senses (Listening to events on a radio or hearing them from someone else does not count. [Hill v Chief Constable of South Yorkshire])
(c) To have close ties of love and affection with the victim. (You must be either married, engaged or, have a close mother/daughter relationship etc. A simple ‘friend’ relationship does not count [Hill v Chief Constable of South Yorkshire])
There is  a threshold test for psychiatric injury to secondary victims.

Rescuers & Employees

Generally speaking, rescuers will not be able to claim for psychiatric injury. [Monk v Harrington]A man helped rescue another at the scene of a construction accident. Because he was not at risk of injury himself, was not an unwilling participant and there was no reasonable reason for him thinking the accident was his fault, he was not able to claim psychiatric injury..

The background behind this, is that in [Page v Smith]Case above. 'Foreseeable physical injury' defined at 755. Lord Lloyd gave a narrow definition that said that the defendant must be within the ‘range of foreseeable physical injury’, this would be seen to exclude rescuers and involuntary participants.  However, in some cases the wider approach has been adopted, for example, by Lord Geoff in his dissentingThe minority opinion in a case. For example the majority may find a defendant guilty of a crime, but one dissenting judge, may believe that he is inocent for a defined reason. They are not legally binding, but may be mentioned by a lower court. judgement of [White v Chief Constable of South Yorkshire].

Damage to Property

A defendant may also retrieve damages when they witness damage to personal property. [Attia v British Gas]British Gas were supposed to install central heating to a home, but the employee negligently started a fire which caught light to most of Mrs. Attia's personal possessions. The Court of Appeal held that psychiatric injury as a result of damage to property may be actionable..

 

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