Please enable JavaScript.
Coggle requires JavaScript to display documents.
(Tort of Negligence for) psychiatric harm (with no physical harm),…
(Tort of Negligence for) psychiatric harm (with no physical harm)
Step 1
defining actual, primary and secondary victim (Alcock)
Primary victim = someone who suffers psychiatric harm as a result of reasonable fear for their own physical safety (objective test). They are involved in the traumatic event and are therefore in the area of danger (the danger zone).
Key case: Dulieu v White [1901]: pregnant barmaid - a coach crashed into the bar - no physical injury but shocked and her child is born with cognitive impairment >> She was a primary victim as she had reasonably feared for her own physical safety.
Page v Smith [1996]: negligent car crash by defendant - no physical injury for the claimant but his ME (Myalgic Encephalopathy) worsened and became permanently disabled >> He was a primary victim because his condition arose from reasonable fear for his own physical safety.
Cullin v London Fire & Civil Defence Authority [1999]: a firefighter witnessing his colleagues trapped in a burning building >> he was exposed to danger or reasonably believed he could be subjected to physical injury and was therefore a primary victim.
Secondary victim = A secondary victim suffers psychiatric harm due to fear for someone else’s safety, normally a close relative. They are not involved in the event/in the area of danger but they witness the traumatic event or its immediate aftermath and suffer psychiatric harm as a result.
Key case: Alcock v Chief Constable of South Yorkshire [1992]: all victims were witnessing their relatives/friends in danger but none were in danger or reasonably feared for their own safety. >> all secondary victims.
White v Chief Constable of the South Yorkshire Police [1999]: police officers on duty during the Hillsborough football stadium disaster, assisting with removing the dead bodies, carrying the injured to safety as well as trying to resuscitate spectators. >> They were secondary victims as they had not been exposed to danger.
Key case: McFarlane v EE Caledonia Ltd [1994]: the test for "reasonable fear is objective"; this means that the court decide whether the claimant was reasonably in fear for his physical safety or not. FACTS: During an oil rig disaster, the claimant was aboard a rescue vessel which remained in the area, but at a safe distance, collecting other survivors. he was recognised as a secondary victim.
Actual victim
where a claimant has suffered physical injury caused by the negligence of another and also suffered some sort of psychiatric injury as a result, there is no need to consider their claim for psychiatric injury separately. Instead, this should be addressed as part of remoteness.
Page v Smith [1996] > mention this case under remoteness in a typical negligence case.
where physical injury is reasonably foreseeable, a claimant will also be able to recover for psychiatric injury
Step 2
Establishing the duty of care
secondary victim
is the psychiatric harm medically recognised? or is it a shock-induced physical condition?
No
No duty of care
Yes (apply 4 requirement of Alcock)
1/was the psychiatric harm reasonably foreseeable? in a person of ordinary fortitude in the same circumstances? (Bourhill)
Bourhill v Young [1943]: defendant dies by his own negligent driving. the claimant is a pregnant women who has not seen the accident but heard the sound and saw some blood on the street. She suffered from a shock-induced still birth. Court held that it was not foreseeable that someone in the claimant’s position of normal fortitude would suffer psychiatric harm.
if psychiatric harm is foreseeable, the claimant can recover damages for all psychiatric harm they suffer, even if they have suffered to a greater extent than could have been foreseen because of a predisposition to mental illness (thin skull rule) (Brice v Brown [1984])
Yes
2/Did the claimant have a relationship of close ties of love and affection with the victim?
Close ties of love and affection are rebuttably presumed in the case of parent/child, married couples and engaged couples. (Alcock) it is on the defendant to rebut the presumption. if there is no presumption, this relationship of love and affection must be shown (no cases until notday).
No
1 more item...
McLoughlin v O’Brian [1982]; the claimant suffered psychiatric harm after witnessing her husband and child two hours after the accident seriously injured and dead.
Greatorex v Greatorex [2000]: a secondary victim will not be able to claim if the actual victim for whose safety they feared, is actually the defendant in the case. Son negligently crashed the car and the fire officer coming for the rescue is his father. no duty of care was owed to the father.
Yes
1 more item...
No
No duty of care
Primary victim
is the psychiatric harm medically recognised? or is it a shock-induced physical condition?
Yes
was the physical harm reasonably foreseeable ?
Yes
then that would be sufficient to enable the claimant to recover damages for psychiatric harm even though he had not actually been physically hurt. (Page v Smith [1996]).
is there a precedent establishing the duty?
2 more items...
No
No duty of care.
2 examples
Key case: Hinz v Berry [1970]: Family having lunch when a car crashes in and the father of family dies in front of his children and wife >> The court only allowed damages in relation to the depression as this was the only part of the claim which related to the shock of seeing the horrific event. Grief, sorrow and worry were not medically recognised psychiatric illnesses. -- medical depression and PTSD are recognised psychiatric harm (based on this case).
Mazhar Hussain v Chief Constable of West Mercia [2008]: claimant suffering from stress and anxiety and claimed that these caused numbness in his left arm and leg. In this case the claimant was held not to have diagnosable anxiety but he did experience significant anxiety symptoms at stressful times.
No (like the cases above).
No duty of care.
definition of psychiatric harm
a form of psychiatric illness that the claimant has suffered as a result of the perception of traumatic events
A medically recognised psychiatric illness
A shock-induced physical condition (such as a heart attack)