Circumstances in which a claimant who has suffered psychiatric injury will be owed a duty of care in the tort of negligence

Subject: Gender Studies
Type: Analytical Essay
Pages: 7
Word count: 1980
Topics: Feminism, Injustice, Justice


Duty of care in the English legal system is essential because it determines the outcome of cases in special circumstances helping victims or defendants get justice. This is a special area of law where a claimant that has suffered a mental or psychiatric injury can make a claim of negligence and be awarded in a court of law. Not all claimants of psychiatric injury can be owed a duty of care. There are problems that occur when determining whether a psychiatric injury claimant qualifies for duty of care. It depends with the circumstances that surround the situation on how the claimant suffered and the extent of suffering. It also depends on the circumstances that resulted in the defendant causing psychiatric harm to the claimant. The rules that are used in such a case are structured in the sense that they consider the nature of the psychiatric injury, damage to property and personal injury. The purpose of this paper is to describe all the possible circumstances that may result to a claimant that has suffered psychiatric injury being owed a duty of care in the tort of negligence. The paper will also give an account on the various ways that the psychiatric injury or illness claims has been analyzed by courts in the past.

Circumstances in which a claimant may be owed a duty of care

Where a condition is medically recognized as a psychiatric illness

The psychiatric injury that has been suffered by the plaintiff must be recognized medically. Further, the condition must have been induced by a shock.Where the plaintiff has proved that the condition he or she is suffering from is not as a result of mere grief or an emotion that is normal. The psychiatric illness comprise of the Post Traumatic Stress Disorder (PTSD).This must be defined through the use of the diagnostic and statistical manual of the mental disorders.

PTSD is described as the characteristic symptoms that develop after someone has been exposed to an event that is traumatic. Some of the symptoms that are connected to PTSD and that are recognized include lack of sleep, irritability, concentration difficulties, hyper vigilance, and hallucinations among others. The symptoms cause severe effects to the affected person such as disturbance in social life and at work.

An example is the case of Kralj V Mcgrath. In this case, the plaintiff had child died when she was giving birth. As a result, she suffered from pathological grief, which is recognized medically as being caused by a mental disorder. This means that she had a psychiatric illness after the death of her child. In the case, the plaintiff is owed a duty of care.

Where the psychiatric injury or illness is reasonably foreseeable

The plaintiff can be owed a duty of care if the harm caused is foreseeable. When an injury is foreseeable, then it means that the defendant can avoid the injury by ensuring that mitigating all the factors that might lead to someone being injured. In a scenario where the harm is foreseeable but the defendant chose to mitigate the harm, them the plaintiff can be compensated. This is because the defendant owed the plaintiff a duty of care, which has now been breached.

It is also not necessary for a physical impact to be felt in order for a psychiatric illness to be inflicted on someone. If the psychiatric injury was a result of the plaintiff having fear of being injured out of the actions of the defendant, then the plaintiff is wed a duty of care. Sometimes, there are actions that someone may commit which may lead to another person developing fear or sudden shock that is harmful. In that case, if the plaintiff proves that there was a connection between the action of the defendant and the injury caused to him or her then the plaintiff is owed a duty of care by the defendant. This is on the basis that committing an outrageous act may affect others mentally resulting in disorders. The fear or the sudden shock must be for oneself and not for another.

An example is the case of Hambrook V Stokes Bros. A mother saw a train being drove in an uncontrollable way. The train was coming from the direction where her children were. She was engulfed with fear and got terrified if her children were safe. Because of the event, she became sick and died at a later day. The court ruled that the plaintiff (the mother) was supposed to recover the damages that she suffered from the illness that was caused by fear for herself and not another person. It was held by the majority that had the mother survived, she was could have been compensated since her state of being terrified due to the safety of her children which could have consequently destabilized her health might have been anticipated by the defendant.

Where the defendant owes the plaintiff a duty of care

Proving that the defendant owed the litigant a duty of care is significant in negligence claims. For the psychiatric injury cases, this is the most difficult element to prove. This is because for a duty to be owed, the defendant must be victim that is reasonably foreseen. In relation to that, the litigants who have suffered from psychiatric injury (a condition medically recognized to have been induced by shock that is sudden) are classified in two categories namely primary victims and secondary victims.

Duty of care for primary victims

The primary victims suffer psychiatric damage from directly being involved in a risk. This is the first hand person that suffers out the actions of a defendant directly. The defendant has a duty of care to the claimant. This means that the defendant is supposed to take care so that he or she can avoid foreseen acts that can result in psychiatric damage of the claimant. If the risk that was responsible for physical or psychiatric injury to the claimant is foreseeable, the claimant owes a duty of care to the litigant.

An example was the case of Page V Smith. In this case, a minor car accident occurred and the claimant was involved. The accident was as a result of the negligence of the defendant. The claimant did not suffer any physical injuries. However, due to the accident, he could not manage to work because of the chronic and the mental disorder that he had suffered permanently.

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In this case, a duty of care is owed to the claimant by the defendant. This is because of being the primary victim that was involved during the accident. In connection to the risk of the physical injury being foreseeable, primary victims are owed a duty of care. It is not necessary to foresee the risk caused by psychiatric damage in such a case. Therefore, if the risk of the injury is foreseen then the defendant owes the claimant a duty of care.

Duty of care for secondary victims

Secondary victims are not mainly involved in an accident. It is more stringent to establish duty of care. However, the secondary victims must suffer from a condition that is recognized medically due to sudden shock for them to be owed a duty of care. An example is the case of Alcock V Chief Constable of the South Yorkshire Police. Negligence of police officers allowing many football supporters into the stadium more than the capacity of the stadium resulted in people being killed. The secondary victims (spectators and those watching through Television) who were plaintiffs were found not to be owed a duty of care because they could not prove by the defendant (police) because they could not prove that they had suffered PTSD. Those who we owed a duty of care are those primary victims that suffered psychiatric injury.

Further circumstances for secondary victims include if the psychiatric injury towards them is reasonably foreseen. If the psychiatric harm can be foreseen then duty of care is owed to them. It also depends with the closeness of the relationship that exists between the primary and secondary victim. If the secondary victim shares close love ties with the affected victim such as spouses or parents and children, then the secondary victim may have psychiatric injury. Therefore, the claimant who is a secondary victim must prove the relationship that exists between the affected person and him or her. Also for a secondary victim to be owed duty of care by the defendant, then he or she must be present where the incident has occurred and must hear or see the incident. This is being close to the incident in terms of time and space.

If the claimant is a rescuer

Rescuers fall into a special category that is owed duty of care by the defendant. Rescuers can recover even when they are in their line of duty. The defendants owe them a duty of care because it is reasonably foreseen that in case of a disaster out of their negligence, the rescuers are bound to rescue people. In the process of rescuing others, the rescue officers suffer psychiatric injury.

If the risk caused by the plaintiff results from the negligence of the defendant

Claimants may cause psychiatry injury to a person or persons because of the defendant’s negligence. In such a case, the defendant owes the claimant a duty of care. For instance, in the case of Dooley V Cammel Laird & Co the driver of the crane was the plaintiff. As the plaintiff was operating the crane, it broke and the heavy material fell injuring other workers. This inflicted psychiatric injury to the plaintiff because he felt that his error had caused the injury of his fellow workers. However, his employer who is the defendant is the one who had committed the act because of not maintaining the crane well.

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If a claimant witnesses destruction of own property

Witnessing the destruction of own property may inflict psychiatric damage to the claimant. Therefore, they can be owed duty of care by the defendants in this situation. For instance in the case of Attia V British Gas Plc after watching the burning of her house, she was injured psychiatrically. However, the defendant must have a duty of care of not damaging the property for the plaintiff to recover.


From the analysis above, there are certain circumstances that come into play when a claimant opts to file for a duty of care plea. Generally, there are two requirements that limit a claim for psychiatric damage. The first entails the injury that the claimant suffered which must be recognized medically. The second requirement is that the injury should be sudden as opposed to a gradual damage. This is an area of law that claimants must fully understand to successfully apply for duty of claim. A claimant must convince the court that the defendant owes him or her duty of care for the claimant to recover. The conditions for duty of care include for the claimants include if the condition resulting from psychiatric injury is recognized medically. The risk that may cause psychiatry injury must be reasonably foreseen. The plaintiff must be the primary victim that has been involved in the accident that has been caused by the defendant.

For secondary victim’s claimants, they must be affected by the risk of the immediate person. They must also have close relationship ties with the affected and must also prove the relationship they have with the immediate affected person. A claimant who has suffered psychiatry injury can also claim duty of care if he or she is a rescuer, risk has been caused out of the negligence of the defendant and  if the claimant has suffered psychiatry injury by witnessing the destruction of his her property.

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  1. Epstein, R A., and Catherine M. Sharkey. Cases and materials on torts. Wolters Kluwer Law & Business, 2016.
  2. Kidner, R. Casebook on torts. Oxford University Press, 2012.
  3. Mulheron, R. “Rewriting the requirement for a ‘recognized psychiatric injury’in negligence claims.” Oxford Journal of Legal Studies 32.1 (2012): 77-112.
  4. Priaulx, N. “Endgame: On negligence and reparation for harm.” Feminist Perspectives on Tort Law (2012): 36.
  5. Robertson, A. “On the Function of the Law of Negligence.” Oxford Journal of Legal Studies 33.1 (2012): 31-57.


  1. Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907; [1992] 1 AC 310
  2. Attia v British Gas Plc [1988] QB 304
  3. Dooley v Cammell Laird [1971] 1 Lloyd’s Rep 271
  4. Hambrook v. Stokes Bros. [1925] 1 KB 141
  5. Kralj v McGrath [1986] 1 All ER 54
  6. Page v Smith [1996] 1 AC 155
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