Claims for psychiatric harm - Primary victims

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. It further clarifies the distinction between primary and secondary victims, emphasises that foreseeability of physical injury is the gateway for primary victim claims (rather than foreseeability of psychiatric injury), and explains that shock-induced physical conditions may suffice. It also reinforces that mere distress or anxiety is not actionable and that rescuers are treated as primary victims only where they were in, or reasonably believed themselves to be in, physical danger.

SQE1 Syllabus

For SQE1, you are required to understand negligence claims for psychiatric harm by primary victims and apply the principles to specific factual scenarios, with a focus on the following syllabus points:

• 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.
• Recognising that primary victims include those actually in the zone of danger or those who reasonably believed they were in danger.
• Understanding that simple grief, worry or upset is insufficient; the illness must be medically diagnosed and recognised, or be a shock-induced physical condition.
• Avoiding confusion with secondary victim rules (foreseeability of psychiatric harm to a person of normal fortitude and the proximity-based Alcock control mechanisms).
• Appreciating that claims based on gradual stress (as opposed to sudden shock) do not normally qualify for pure psychiatric harm, subject to different rules in employer stress claims.

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.

1. What is the key test for establishing a duty of care towards a primary victim suffering psychiatric harm?
2. True or False: For a primary victim claim, the psychiatric harm itself must be reasonably foreseeable.
3. 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. A claimant who reasonably believes they are in physical danger will generally be treated as a primary victim even if, with hindsight, they were not actually in 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). While both categories require a medically recognised psychiatric illness (or a shock-induced physical condition) precipitated by a sudden shocking event, the duty of care thresholds are different: primary victims benefit where physical harm was foreseeable, whereas secondary victims must satisfy additional proximity requirements and foreseeability of psychiatric harm in a person of normal fortitude.

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.

This approach builds on early authority recognising recovery for shock suffered by those in danger. In Dulieu v White & Sons [1901] 2 KB 669, a pregnant barmaid suffered severe shock (leading to miscarriage) when a negligently driven van crashed into her pub; although there was no physical impact, recovery was permitted because she was a participant in the incident and reasonably feared for her own safety. Page v Smith confirmed the modern position: once physical injury is foreseeable to a claimant in the zone of danger, the defendant will be liable for psychiatric harm if it occurs.

Foreseeability in this context relates to the risk of physical injury, not the particular psychiatric illness or its severity. For primary victims, the “normal fortitude” filter used for secondary victims does not apply. The defendant must take the claimant as found if the gateway foreseeability of physical injury is satisfied.

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.

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.

Worked Example 1.3

Mariam is eight months pregnant and standing by the entrance of a shop when a delivery van is negligently driven and crashes into a bollard a few metres away. She is not struck, but the impact and immediate fear for her safety cause a sudden shock. She later suffers a miscarriage. The van driver contends that there was no physical impact and therefore no liability.

Does the van driver owe Mariam a duty of care in respect of her shock-induced physical condition?

Answer:
Yes. Mariam is a primary victim because she was directly involved in the incident and reasonably feared for her own safety. Foreseeability of physical injury to someone in her position (near the crash site) establishes the duty. A shock-induced physical condition, such as miscarriage, is treated as actionable harm. Liability follows the same principles as for recognised psychiatric illness.

Worked Example 1.4

Owen is seated on a bus when the driver takes a sharp turn at speed, heading towards a wall. Owen reasonably believes a crash is imminent and braces for impact. The bus stops safely at the last moment and Owen is not physically injured. He later develops a medically diagnosed depressive episode triggered by the sudden shock of the near miss. The bus company argues that no duty arises because no collision occurred.

Is the bus company likely to owe Owen a duty of care for pure psychiatric harm?

Answer:
Yes. Owen is a primary victim because he was reasonably led to believe that he was in physical danger at the time of the negligent manoeuvre. Foreseeability of physical injury is sufficient to found the duty, even if actual impact did not occur. The company will be liable for the recognised psychiatric illness caused by the sudden shock.

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. Clinical depression and PTSD are well-established diagnoses.
• Mere distress, sorrow, fear, or grief, unless they develop into a recognised condition, are generally not sufficient to ground a claim (see Hinz v Berry [1970]).
• The courts also accept shock-induced physical conditions (such as miscarriage precipitated by sudden shock) as actionable harm. The requirement is that the harm derives from a sudden event and is medically evidenced.

In practice, medical expert evidence is essential to establish diagnosis, causation and prognosis. Courts distinguish between normal human emotions in response to upsetting events and conditions that meet diagnostic criteria. The threshold aims to ensure that recovery is limited to illnesses with clinical specificity and proof.

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.

• The shock must be proximate to the event. There is no recovery for psychiatric illness caused solely by prolonged anxiety or gradual distress (Sion v Hampstead Health Authority [1994]).
• The courts have recognised that a short, continuous sequence of adverse events can, in appropriate circumstances, be treated as a single horrifying event (Walters v North Glamorgan NHS Trust [2003]). Conversely, attempts to aggregate a series of upsetting experiences over days will usually fail (Liverpool Women’s Hospital NHS Trust v Ronayne [2015]).
• For primary victims, the requirement for sudden shock still applies. The claimant’s involvement in the incident and exposure (actual or reasonably apprehended) to danger is what differentiates primary from secondary victims, not the nature of shock. But the shock must nonetheless be the precipitating cause of the illness.

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 usual “but for” test applies, and intervening acts or alternative causes may break the chain of causation. Evidence often centres on whether the shock of the incident materially contributed to the onset or exacerbation of the condition.

Where a claimant has a pre-existing vulnerability or prior history of psychiatric illness, the defendant remains liable if the negligence caused a recurrence or materially aggravated the condition, provided the duty was established through foreseeability of physical injury. Apportionment may be relevant if there are multiple contributing causes, but this does not negate liability where the defendant’s breach is a significant cause.

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). The type and severity of psychiatric harm need not be foreseeable for primary victims, once the gateway foreseeability of physical injury exists.

Worked Example 1.5

Luca has a history of depression in remission. A negligent gas leak causes an explosion in the flat below, violently shaking Luca’s apartment. He is within the zone of danger and suffers no physical injury, but the sudden shock triggers a severe depressive illness. The landlord argues that Luca’s pre-existing depression was the real cause.

Can Luca recover for the full extent of his psychiatric harm?

Answer:
Yes. Luca is a primary victim. The explosion created a foreseeable risk of physical injury to him. Under the eggshell skull principle, the landlord must take Luca as he is and is liable for the full extent of the recognised psychiatric illness triggered by the sudden shock, notwithstanding Luca’s pre-existing vulnerability.

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. Primary victims do not need to show foreseeability of psychiatric harm, nor do they need to satisfy the Alcock control mechanisms (close ties of love and affection; proximity in time and space; perception by unaided senses), which apply to secondary victims.

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.
• There is no special rule granting rescuers an automatic right to recover for psychiatric harm. Absent danger or reasonable belief of danger, claims fail.

This approach aims to maintain coherence between categories, avoid unfair preference for one group of claimants, and prevent the expansion of liability beyond established controls. Occupational status (such as police officers in White) does not of itself create a duty in respect of pure psychiatric harm unless general principles are satisfied.

Worked Example 1.6

Asha, a passer-by, runs into a building following a negligent explosion to help evacuate occupants. She reasonably believes there is a high risk of structural collapse and fire spread, and remains inside for several minutes assisting others before firefighters arrive. Asha later develops PTSD. The building owners argue she was not physically injured and cannot recover.

Is Asha likely to succeed as a primary victim?

Answer:
Yes. Asha is a rescuer who reasonably believed she was in physical danger and entered a perilous environment. Foreseeability of physical injury in those circumstances establishes the duty of care. She can recover for the recognised psychiatric illness caused by sudden shock as a primary victim.

Worked Example 1.7

Reece, a police officer, arrives at an accident after the scene is secured. He does not enter any dangerous environment and is not exposed to risk. He later develops depression from what he witnessed. He brings a claim as a rescuer.

Will Reece be treated as a primary victim?

Answer:
No. Reece was not in the zone of physical danger and did not reasonably believe himself to be at risk. His claim for pure psychiatric harm would need to satisfy the secondary victim rules, including foreseeability of psychiatric harm to a person of normal fortitude and the Alcock proximity requirements. Without those, the claim will fail.

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 or those who reasonably believed they were at risk. Establish foreseeable physical injury to the claimant; if present, the duty extends to psychiatric harm without needing to show foreseeability of psychiatric harm.

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 (or reasonably believe they are).
• 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; shock-induced physical conditions may also be actionable.
• Simple grief, worry and distress without a recognised condition are not actionable (e.g., Hinz v Berry).
• 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.
• Foreseeability of physical injury is the gateway; the severity or type of psychiatric illness need not be foreseeable for primary victims.
• Rescuers are typically treated as primary victims only if they were themselves in physical danger or reasonably believed they were; otherwise they must meet secondary victim rules (White).
• The sudden shock requirement excludes claims based solely on gradual accumulation of stress; limited flexibility exists where events form a single horrifying episode (Walters), but not where they are aggregated over time (Ronayne).

Key Terms and Concepts

• Pure Psychiatric Harm
• Primary Victim
• Sudden Shock
• Eggshell Skull Rule (Psychiatric Harm)