Pure psychiatric harm: who is a primary victim?


Areas of applicable law: Tort law – Psychiatric harmNegligence

Main arguments in this case: Who is a primary victim in psychiatric harm?

In terms of psychiatric harm, a primary victim is someone who has actually been involved in an accident and as a consequence was physically harmed. However it does not matter, for a claim of psychiatric harm,  if a person is physically harmed or not as far as it can be proved that he or she was in the danger zone and had a reasonable belief that he or she would be harmed. Page v Smith (1996) is a key case to reflect this basis in which a driver who was engaged in an accident but was not physically harmed later grew a psychiatric harm condition. So in a nutshell if there is a reasonable foreseeability of physical harm, a claim for psychiatric harm can be allowed.

Furthermore, a claim for psychiatric harm, whether by a primary or a secondary victim, does need to satisfy further requirements which state that:

a) It is a medically recognised condition: The claim has to be based on a condition that is recognised medically such as personality disorder. Normal conditions such as distress, fear or grief do not qualify for a claim.

b) The mental harm is induced by a sudden and immediate shock; the victim has to suffer from an incident that was sudden and induced immediate shock capable of producing a medically recognised psychiatric condition. Without a sudden or immediate shock there cannot be a claim despite the size of the loss or suffering.

It is important to note here that psychiatric harm is a special form of negligence so negligence would need to be established first before any other tests are qualified. Once it can be established that the defendant owed a duty of care which was breached and the defendant caused the breach, it only then the other tests become applicable.

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