18/9/2023

1 Lecture Three:
Duty of Care: Psychiatric Injury
2 Course intended learning outcomes
nTo know the recognised psychiatric injury
nTo understand duty of care to primary victims
nTo understand duty of care to secondary victims
nTo understand duty of care to rescuers suffering psychiatric
injury
nTo know the attempted reforms and possible development of
the law
3 Negligently inflicted psychiatric injury
n‘Negligent’ infliction of psychiatric injury v. ‘intentional’ infliction
of distress (Wilkinson v Downton [1897] 2 QB 57): two distinct
causes of action in tort
nPolicy reasons for restricting the ambit of negligence liability for
fair
just psychiatric injury: Victorian Railway Commissioners v Coultas
reasonable (1888) 13 App Cas 222
- limited public resource
- floodgates §the risk of fictitious claims
- no legislative intention §excessive litigation (the floodgates concern)
§excessive burden on D, disproportionate to the fault’s degree
§the difficulty in proving causation
§The difficulty in putting a monetary value on the harm
nAn increasing attention paid to mental health
4 Actionability question: recognised/recognizable psychiatric
illness
nActionability Q: Is the harm (loss, injury and damage) which is
the subject matter of the claim actionable in negligence?
n‘[I]t means a reaction to an immediate and horrifying impact,
resulting in some recognizable psychiatric illness. There must be
some serious mental disturbance outside the range of normal
human experience, not merely the ordinary emotions of anxiety,
grief or fear.’ (per Lord Keith, Page v Smith [1996] A.C. 155)
nA medically recognised condition of a sustained nature that
disturbs the normal functioning of the mind
nPTSD is not the only kind of recognised psychiatric injury (eg,
pathological grief disorder, in Vernon v Bosley [1997] 1 All ER
577)
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© Prof. Ding, Law School, CityU HK 1