3. Psychiatric harm

Question 1

What must psychiatric harm be to be actionable? What case sets the precedent for this?

Answer 1

A medically recognised psychiatric illness – Hinz v Berry

Question 2

What case gives the distinction between primary and secondary victims?

Answer 2

Page v Smith

Question 3

Define ‘primary victim’

Answer 3

Someone who is within the range of foreseeable physical injury

Question 4

Define ‘secondary victim’

Answer 4

Someone who is a passive witness to injury to – or endangerment of – others

Question 5

When will a duty of care be owed to a primary victim?

Answer 5

Always

Question 6

What is the Eggshell Skull Rule?

Answer 6

Once a duty of care has been established, the defendant is liable for all harm suffered by the claimant, even if not reasonable foreseeable

Question 7

Which case establishes that the claimant must fear they will suffer immediate harm?

Answer 7

Rothwell v Chemical & Insulating Co Ltd

Question 8

Which case established the policy reasons for distinguishing physical from psychiatric injury?

Answer 8

White v Chief Constable of South Yorkshire Police

Question 9

What are the policy reasons for distinguishing physical from psychiatric injury?

Answer 9

(1) Evidential problems: difficult to draw the line between a medically recognisable psychiatric illness and grief, anxiety, etc.
(2) Allowing claims for psychiatric harm may act as an unconscious disincentive to the claimant recovering from their illness
(3) ‘Floodgates’ concern if recovery for psychiatric injury was not limited
(4) Potential unfairness to defendant of imposing damages out of proportion to the negligent conduct

Question 10

When will a duty of care be owed to a secondary victim?

Answer 10

If all of the following criteria are met:

(a) There is a reasonable foreseeability of harm in a person of normal fortitude (Bourhill v Young)
(b) There is a close relationship of love and affection between the claimant and the victim (Alcock v Chief Constable of South Yorkshire Police)
(c) The claimant witnesses the accident or its immediate aftermath (Alcock v Chief Constable of South Yorkshire Police)
(d) The claimant witnesses the accident with their own unaided senses (Alcock v Chief Constable of South Yorkshire Police)
(e) The claimant suffers a sudden shock as a result of the accident (Alcock v Chief Constable of South Yorkshire Police)

Question 11

Which relationships are automatically deemed ‘a close relationship of love and affection’, and which ones must be proven by the claimant?

Answer 11

Automatic: parents/children, spouses, fiancé(e)s

Must be proven: siblings, friends (McFarlane v EE Caledonia)

Question 12

Is there a general duty in law to go to someone’s rescue?

Answer 12

No

Question 13

There is no general duty to go to someone’s rescue. If someone does, and suffers physical injury, is the defendant liable? What is the case that sets this precedent?

Answer 13

Yes – Haynes v Harwood

Question 14

If someone goes to someone’s rescue and the victim has no cause of action, can the rescuer have a cause of action? What is the case that sets this precedent?

Answer 14

Yes – Videan v British Transport Commission

Question 15

What is the law if the rescuer suffers only psychiatric harm? What is the case that sets this precedent?

Answer 15

The defendant will not be liable unless the rescuer is classed as a primary or secondary victim – White v Chief Constable of South Yorkshire Police

Question 16

What is the general principle for occupational stress victims?

Answer 16

Employers should not have to pay compensation for stress-induced illness unless such illness was reasonably foreseeable

Question 17

What is the precedent set in Sutherland v Hatton and others?

Answer 17

Employers have a duty of care with regard to employees’ psychiatric wellbeing, but they are normally entitled to assume that employees can withstand the normal pressures of their job

Question 18

Define ‘involuntary participant’

Answer 18

Someone who, because of the defendant’s negligence, is placed in circumstances where they accidentally cause the death, injury or imperilment of another through no fault of they own, or reasonable believe they have done so

Question 19

What are the two cases setting precedents for an involuntary participant? Why do they conflict?

Answer 19

Dooley v Cammell Laird & Co Ltd; W v Essex CC

In Dooley, the defendant will be liable if he is negligent. In W v Essex CC, the claimant was unsuccessful, but the victim may be a primary victim of the defendant’s negligence