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How to establish a duty of care for psychiatric damage
Law of Tort (LAW209)
University of Liverpool
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How to establish a duty of care for psychiatric damage
Dr John Fanning LAW209: Law of Tort 2021-
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Has the claimant suffered a clinically- recognised psychiatric injury?
NO
No actionable damage. Must be a ‘clinically recognised’ psychiatric illness (Hinz v Berry; McLoughlin v O’Brien). See also Nicholls v Ruston and Reilly v Merseyside RHA.
Has the claimant suffered any physical injury?
USE NORMAL PRINCIPLES TO ESTABLISH
DUTY OF CARE: Where a claimant suffers physical AND psychiatric injury, the existence of a duty of care will depend on the general rules of negligence.
Is it reasonably foreseeable to the defendant that the claimant would suffer personal injury? (Page v Smith).
Was the claimant either –
(a) objectively exposed to physical danger, or (b) not in danger, but reasonably believed that he/she was?
(White v CC of South Yorks. Police)
PRIMARY
Is it reasonably foreseeable that a person of ‘ordinary fortitude’ would suffer psychiatric damage? (Bourhill v Young; see also Jaensch v Coffey (Australian case); Brice v Brown).
NO DUTY FOR
PSYCHIATRIC
DAMAGE
Did the claimant have a proximate relationship with the ‘immediate victim’ of a shocking incident based on close ties of love and affection? (Alcock v CC of South Yorks. Police) Parent-child and spouses/civil partners subject to rebuttable presumption. All other relationships are put to proof at trial.
Was the claimant proximate in time and space with the incident so as to either – (a) perceive it with his/her own unaided senses, or (b) come upon the ‘immediate aftermath’? (Alcock v CC of South Yorks. Police)
Has the claimant’s psychiatric injury been caused by a ‘sudden assault’ on his/her nervous system capable of ‘violently agitating’ his/her mind? (Liverpool Women’s v Ronayne)
SECONDARY VICTIM
YES
YES
NO
YES
YES
NO
NO
NO
NO
NO
YES
YES
YES
YES
REMEMBER!
These rules relate to the duty of care in relation to psychiatric injuries caused by shocking events. There are separate rules that relate to an employer’s duty to protect his/her employees from occupational stress (see Barber v Somerset County Council; Hatton v Sutherland).
How to establish a duty of care for psychiatric damage
Module: Law of Tort (LAW209)
University: University of Liverpool
