Psychiatric Injury

Psychiatric Harm Exam Structure

(AO2)

1. Was C physically injured in accident and suffered psychiatric injuries as a result of D’s negligence? (This would be consequential Psychiatric harm)

2. If no then, did C suffer a medically recognised psych condition (not ‘mere’ grief / emotion. No need for a ‘sudden shock’) - This is Pure PH.

3. Was there a RF risk of Physical injury to C (i.e. was C in zone of (physical) danger or reasonably believed he was. IF YES then PRIMARY VICTIM, IF NO THEN SECONDARY VICTIM

4. Secondary victim criteria

   • Foreseeability - it was RF that a person of normal fortitude would suffer PH as a result of witnessing injury / death arising from a specific ‘discrete’ accident / event

   • Proximity - All 3Alcock controls must be satisfied:

     • Relationship - C had close ties of love & affection (presumed or proved) with V

     • Time/Space - C was present at the accident or (very) immediate aftermath

     • Perception - Accident / aftermath was witnessed by V with his own senses

Consequential Psyciatric Harm

Definition (AO1)

Where C is phyically injured as a result of D’s negligence and goes on to develop PH as a result of the injuries and then he must pay damages for the physical and consequential psychiatric harm they have caused.

Pure Psychiatric Harm

Definition (AO1)

Where C has not themselves been physically injured by D, but has witnessed an external event (typically an accident, e.g. car crash) in which another has been injured (or killed) and this experience caused the witness medically recognised psychiatric harm.

(The PH must be medically recognised, and does not include emotional distress such as grief [however extreme])

Pure Psychiatric Harm - Must have RMC

Definition (AO1)

(Reilly v Meresyside Health Authority)

Couple trapped for over 20 hours.

Primary Victims

Definition (AO1)

A person who is ‘involved’ in the accident because either they were in the zone of danger or reasonably feared for their own physical safety can claim for Pure PH.

If D was not actually at risk of physical injury but believed he was, then that belief must be a reasonable one.

(Normal causation rules apply here)

Primary Victims

Case (AO3)

(Page v Smith)

C was involved in a collision with the D whilst both were driving. C suffered no physical injuries as a result of the crash but after several hours, he felt exhausted which continued.

Prior to the accident C had suffered periodically from chronic fatigue syndrome.

Held that C was owed a DOC, since it was reasonably foreseeable that C would suffer some physical injury as a result of D’s negligence, it was not necessary that the type of harm caused was RF.

Secondary Victims

Definition (AO1)

Someone who was not in the zone of danger and so not at risk of phyiscal injury but did suffer a medically recognised mental injury after witnessing an accident or its immediate aftermath.

C must demonstrate proximity to the incident itself, not to the breach of duty

All criteria must be successful to be an established SV.

Secondary Victims

Case (AO3)

(Paul and others v Wolverhampton NHS Trust)

Doctors were negligent and caused the death of 3 people.

Relatives tried to sue as SVs

Held: Not successful, Doctors don’t owe DOC to relatives of patients. (Floodgates)

Secondary Victim - Criteria

(AO2)

1. Must be RF that a person of reasonable fortitude would suffer some psychiatric harm

2. V must prove proximity to D’s negligent conduct (Alcock Criteria)

   • Proximity of relationship

   • Proximity to accident in time and space

   • Proximity of perception

Secondary Victim - Criteria - Must be RF that a person of reasonable fortitude would suffer some psychiatric harm

Definition (AO1)

SV must show that the type of injury (mental) he suffered was a RF consequence of D’s negligent conduct.

Must also show that a person of a reasonable fortitute (resiliance) would have sustained some psychiatric injury.

Thin skull - As long as a person of reasonable fortitude would suffer some mental harm, then it is irrelevant that C suffered more severe mental harm due to their mental sensitivity.

Secondary Victim - Criteria - Must be RF that a person of reasonable fortitude would suffer some psychiatric harm

Case (AO3)

(Simmons v British Steel)

C suffered a head injury at work, following whcih he suffered depression and his psoriasas worsened.

Held that he was able to claim as a person of reasonable fortitude would also have suffered.

Secondary Victim - Criteria - V must prove proximity to D’s negligent conduct

Definition (AO1)

C must establish that D ought to have had them in contemplation (mind).

This is done through the Alcock Criteria

Secondary Victim - Criteria - V must prove proximity to D’s negligent conduct

Case (AO3)

(Alcock v Chief Constable of South Yorkshire)

Hillsborough Stadium disaster

Alcock Criteria - Proximity of relationship

Definition (AO1)

C must have close ties of love and affection to the victim in the accident.

Such closeness is presumed between spouses along with parents and children (but still rebuttable). To succeed for witnessing an accident involving wider or non-family, a C must adduce evidence of the close relationship.

Alcock Criteria - Proximity to the accident in time and space

Definition (AO1)

If C was at the scene and witnessed the accident, they will fulfill this criteria. Those at the stadium (in alcock) who saw a close relative suffer would qualify. Those arriving after the incident (8 hours later) to identify dead relatives did would not qualify.

Meaning of immediate aftermath ahs been inconsistently interpreted over various cases which makes law unclear.

Proximity of perception

Definition (AO1)

The accident or immediate aftermath must be perceived by the C with his own senses.

This includes: hearing, sight and touch

Excludes: Watching on TV, being told by someone else, or listening on the radio

Proximity of perception

Case (AO3)

(McLoughlin v O’Brien)

C’s husband and children were in a car crash. One child died and the C saw the others in the hospital covered in oil and blood.

Rescuers

Rule (AO1)

No special rules that apply to rescuers.

(Chadwick v British Rail) - Primary V

Went into trainwreck and so was in zone of danger

(White v CC of south Yorkshire) - alcock test failed

Police at Hillsborough disaster

Primary V owing Secondary V a duty of care

Rule (AO1)

A primary victim does not have a DOC to look after humself in order to avoid distressing others

Primary V owing Secondary V a duty of care

Case (AO3)

(Greatorex v Greatorex)

C was a fireman who caused a road traffic accident. His son claimed against him for psychiatric injury.

C mistakenly thinking he caused an accident

Rule (AO1)

A C who mistakenly thinks he’s caused an accident and suffers psychiatric injury, can claim against the person who actually caused it.

C mistakenly thinking he caused an accident

Case (AO3)

(Dooley v Cammell Laird)

Exam stuture in a consider Q (30 marker)

(AO2)

1. See if C suffered physical and PH or just PH.

2. Explain