Chapter 11 The Tort of Negligence - OED-update - Oxford University ...

Chapter 11 The Tort of Negligence 357
do so. In Smith v Eric Bush (1989) a negligent report, prepared by the defendant, had a
disclaimer of liability but the court stated that the disclaimer was unreasonable, and,
therefore, invalid under the Unfair Contract Terms Act 1977.
Psychiatric injury (Nervous Shock)
Psychiatric injury, which is sometimes referred to as ‘nervous shock’, is a form of personal
injury but it is more problematical to claim for than physical injury. There must be
evidence that the claimant has suffered a serious psychiatric illness such as post-
traumatic stress disorder. Ordinary grief, anxiety, or fright, without any physical injury,
is not enough as it does not amount to a psychiatric illness. The courts have always been
cautious in recognising a duty of care in relation to psychiatric injury, for a number
of reasons. It is more difficult to diagnose psychiatric injury than physical injury and,
therefore, is easier to make fake claims. It may open the floodgates of litigation with a
rush of claims being made, and psychiatric injury may be difficult to quantify in terms
of compensation.
The problem only arises in claims for ‘pure’ psychiatric injuries. This means where the
claimant suffers only psychiatric injuries and is not physically harmed. There has never
been a problem of establishing a duty of care where a claimant suffers psychiatric injuries
as a result of a negligently inflicted physical injury. A claimant can even be compensated
for emotional distress and anguish as a result of physical injury. The general principles of
negligence are used where a claimant suffers a psychiatric injury and physical harm.
However, where a claimant suffers only psychiatric injuries, additional requirements
have to be met for a successful claim. In cases of pure psychiatric injuries a distinction
must be made between a primary victim who is involved in the incident, and a secondary
victim who merely witnesses the incident or arrives shortly after it has happened. Stricter
rules limit the defendant’s liability towards secondary victims. It would not be fair, just, or
reasonable for the defendant to be responsible for all persons who only witness the
defendant’s negligent actions or happen upon them shortly afterwards but are not directly
involved in the actions.
Primary victims
A primary victim is a person who was under actual threat of bodily harm or reasonably
believed themselves to be so, as a result of the negligent event. For example, Sanjay is
involved in a car crash caused by Leon’s negligence. Although Sanjay suffers no physical
harm in the car crash, he does subsequently develop a psychiatric illness as a result
of his experience. Provided that Sanjay was under actual threat of bodily injury, or
reasonably believed himself to be so, at the time of the crash, he will be considered a
primary victim.