a. Psychiatric injury
The law treats psychiatric injury differently from physical injury, primarily to prevent an unmanageable “floodgate” of claims.
Recognised psychiatric illness
A plaintiff cannot recover damages merely for ordinary human emotions such as grief, distress, fear, or transient shock. In cases of pure psychiatric injury, the plaintiff must prove a recognised psychiatric illness, usually one recognised under modern diagnostic standards such as the DSM-5. Examples include depression, anxiety disorders and post-traumatic stress disorder (PTSD).
By contrast, where psychiatric harm is consequential upon physical injury, the plaintiff may recover not only for recognised psychiatric illness but also for ordinary emotional suffering associated with the physical injury.
Primary and secondary victims
A primary victim is a person directly involved in the accident or incident, typically someone within the range of foreseeable physical injury. For a primary victim, it is enough that physical injury was foreseeable. If that is established, the defendant may be liable even if no physical injury in fact occurred and the psychiatric injury itself was not specifically foreseeable.
A secondary victim is a person who suffers psychiatric injury from witnessing injury, death, or imperilment to another, while not being personally exposed to physical danger. Secondary victim claims are subject to much stricter control mechanisms.
If only psychiatric injury was foreseeable, but not physical injury, the plaintiff will usually not qualify as a primary victim and will have to satisfy the stricter rules applicable to secondary victims.
Control mechanisms for secondary victims
To succeed, a secondary victim must meet 5 conditions:
(i) Foreseeability
Psychiatric injury must be reasonably foreseeable in a person of “ordinary fortitude” placed in the plaintiff’s position. If a secondary victim suffers psychiatric illness only because of unusual vulnerability, in circumstances where a person of ordinary fortitude would not reasonably be expected to do so, the defendant will not be liable.
(ii) Close tie of love and affection
A secondary victim can only recover damages if he has a “close tie of love and affection” with the immediate victim. This tie is usually presumed for spouses, parents, and children.
(iii) Proximity in time and space
There must be a close physical and temporal proximity between the plaintiff and the shocking event. The plaintiff must witness the event or its immediate aftermath. For example, seeing a victim in the hospital shortly after an accident while he is still in their original “distressing untreated condition” may count, but seeing them hours later for identification usually does not.
(iv) Direct perception
The injury must be caused by seeing or hearing the shocking event with “unaided senses”. Suffering shock through being told of the events by a third party or witnessing an event on television generally do not qualify.
(v) Sudden shock
Traditionally, the plaintiff also had to show that the psychiatric illness was induced by a sudden and horrifying shock, rather than by a gradual accumulation of distress.
However, the UK Supreme Court held that sudden shock is no longer required for secondary victim claims. It remains uncertain whether Hong Kong will adopt the same approach. For now, the Hong Kong position appears still to reflect the older requirement.
Psychiatric harm caused by witnessing self-inflicted injury
A person who causes injury to himself, either carelessly or on purpose, does not usually owe a duty of care to a witness who suffers psychiatric injury from seeing it, even if that witness is a close family member and even if the normal secondary-victim conditions are satisfied.
Rescuers
Rescuers who suffer psychiatric injury are not subject to any special or more generous rules: they must qualify as either primary or secondary victims on the same principles that apply to all plaintiffs. A rescuer will be a primary victim only if he was actually in physical danger or reasonably believed himself to be in danger, in which case foreseeability of physical injury is enough; otherwise he is treated as a secondary victim and must satisfy the usual control mechanisms.
