Psychiatric injury—establishing liability

The following PI & Clinical Negligence practice note provides comprehensive and up to date legal information covering:

  • Psychiatric injury—establishing liability
  • Classifying the victim
  • Primary victims
  • Establishing liability—common law
  • Statutory liability in the workplace
  • Statutory liability outside the workplace
  • Secondary victims
  • Other types of claimant—pre-existing legal relationship
  • Employees
  • Rescuers
  • More...

Psychiatric injury—establishing liability

Liability for psychiatric injury is dependent in part on the nature of the injuries suffered and the manner in which they were sustained.

Classifying the victim

Where a claimant suffers both physical and psychiatric injury (even if the physical injury was very minor), they will be entitled to recover damages in the usual way subject to issues of causation etc. There will in such a case be no need to prove the foreseeability of the psychiatric injury if the physical injury was itself foreseeable.

The complexity arises where a claimant has suffered psychiatric injury but is physically unharmed.

In ‘nervous shock’ cases ie where claimants have suffered ‘pure’ psychiatric injury as a result of participation in some kind of frightening accident or event, the law draws a distinction between:

  1. primary victims—see below

  2. secondary victims—see below

Primary victims

Primary victims are directly involved in the event and usually, but not necessarily, have physical injuries as well as psychiatric injuries.

For further guidance, see Practice Note: Psychiatric injury—primary victims.

Establishing liability—common law

To establish liability at common law a primary victim must show that it was reasonably foreseeable that a person would suffer a physical or psychiatric injury as a result of the defendant’s negligent act.

Statutory liability in the workplace

For accidents in the workplace prior to 1 October 2013, section 47 of the Health and

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