Negligence: Pure psychiatric harm Flashcards
A client is the mother of a 12 year old school girl. In May last year, the client was at the school gates at 3.15pm, waiting for school to finish at 3.30pm. The school gates are 250 metres from the science block. She was aware that her child would be in her science class at that time. Suddenly, an explosion was heard coming from the science block, following which flames could be seen coming through the roof. The fire brigade attended and within 30 minutes the fire was put out. Everyone was evacuated safely including the client’s child. The client has since been diagnosed with post-traumatic stress disorder (PTSD). She wants to know whether she is entitled to compensation. She suffered no other injuries and admits that at no time did she consider that her own life was in danger. Liability for the incident has been admitted.
Which option best explains why the client can claim damages?
A-She can automatically claim because liability for the incident has been admitted. The client will be entitled to claim damages for whatever losses she has suffered.
B-She can claim because she would be considered to be a primary victim as she was in the actual area of danger. She will be able to recover damages.
C-She can claim because she would be considered to be a primary victim as physical injury was foreseeable. Psychiatric harm need not be foreseeable.
D-She can claim because she is a secondary victim. She was in the actual area of danger and feared for the safety of her child.
E-She can claim because she is a mother who witnessed the incident from 250 metres. Psychiatric injury was foreseeable.
Option E is correct. The client has not suffered physical injuries, her claim needs to be considered as pure psychiatric harm. She is 250 metres from the explosion and so was not in the area of danger. She can only be a secondary victim. She has suffered a medically recognised condition because of a sudden shock. She satisfies the Alcock criteria – psychiatric harm would be foreseeable in the ordinary mother; she is the mother of a child in the incident; she witnessed the incident with her own unaided senses (Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907).
Option A is wrong because she cannot automatically claim just because breach is admitted. She needs to first prove that she was owed a duty of care.
Options B and C are wrong because she is not a primary victim. To be a primary victim she would need to be in the area of danger (or reasonably believe she was) and physical injury would need to be foreseeable (Page v Smith [1995] 2 All ER 736).
Option D is wrong because a secondary victim is not in the actual area of danger.
A client has been diagnosed as suffering from clinical depression. This was caused when the client was in a local park recently. They saw a car swerve out of control and crash from a nearby road through the park railings and onto the area of grass where children were playing together. The car hit one of the children who subsequently died. The client was sitting on a park bench some distance away from the accident but they witnessed the whole horrific event. They also went to the scene immediately afterwards to try and help.
The insurers of the car have admitted liability for the death of the child.
Which of the following statements best explains whether the client would be owed a duty of care for their clinical depression?
A-Yes, because the insurance company has admitted liability for the death of the child
B-Yes, because while the client was not in any physical danger, the car driver owed a duty of care to all foreseeable rescuers.
C-Yes, because the client suffered a foreseeable psychiatric injury due to what they saw and heard.
D-No, because the client was not in any physical danger.
E-No, because the client did not have a close tie of love and affection with the dead child.
Option E is correct – while the client will be able to satisfy all the other elements of the Alcock test, there is nothing to suggest that they had a close tie of love and affection with the dead child (or indeed any of the children that were playing in the park).
Option A is wrong because the fact that the insurance company has admitted liability for the death of the child does not, in itself, mean that it admits that the client was owed a duty of care for their pure psychiatric harm. (The admission will, however, prove breach of duty.)
Option B is wrong because the established duty of care between a defendant and foreseeable rescuers only applies to cases where the rescuer has suffered physical injuries or property damage. (If this duty did apply, a rescuer can also claim for their consequential psychiatric harm.)
Option C is wrong as, while this is one element of the Alcock test for secondary victims, there are others, eg a necessary close tie of love and affection with the person who was physically injured.
Option D is wrong because secondary victims do not have to be in physical danger. They do, however, have to satisfy all elements of the Alcock test.
A client is a police officer and has been diagnosed as suffering from post-traumatic stress disorder. This was caused when the client attended an accident on a motorway. Two cars had collided and crashed into the central reservation. The police arrived on the scene within five minutes of the accident. The client crawled into the wreckage to free a passenger in one of the cars. Petrol was leaking from the car during this event but it did not, fortunately, ignite.
Which of the following statements best explains whether the client would be owed a duty of care for their post-traumatic stress disorder?
A-Yes, because the client was in danger of suffering a physical injury during the rescue.
B-Yes, because the client has suffered a foreseeable psychiatric injury due to what they saw and heard.
C-No, because the risk of physical injury was low as the fuel did not actually ignite.
D-No, because the client did not have a close tie of love and affection with the passenger in the car
E-No, because the client is a professional rescuer and they should be used to seeing horrific scenes as part of their job.
Option A is correct – the client is owed a duty of care as they have suffered a medically recognised psychiatric condition as a result of a sudden shock and they are a primary victim. There was a foreseeable risk of physical injury (burns) due to the fact that petrol was leaking from the car.
Option B is wrong because, while the client may have suffered a foreseeable psychiatric injury due to what they saw and heard, they would not be owed a duty of care as a secondary victim. This is because they would not have a close tie of love and affection with the passenger in the car. In any event, the client is a primary victim and it is not necessary that psychiatric injury is reasonably foreseeable.
Option C is wrong because there was a foreseeable risk of physical injury – the fact that it did not occur is irrelevant.
Option D is wrong as, while the client did not have a close tie of love and affection with the passenger in the car, this is irrelevant as the client is a primary rather than a secondary victim.
Option E is wrong as the foreseeability of psychiatric injury is not relevant to primary victims. In any event, there is no special rule that requires professional rescuers who are secondary victims to be more than usually resistant to shocking events. Professional rescuers are not expected to display more than normal fortitude.
A-
B-
C-
D-
E-
Elements to be established set out in Alcock v. Chief Constable of South Yorkshire [1991] 4 All ER 907
(1) the claimant must have suffered a recognised psychiatric illness which would have been foreseeable in a person of ordinary fortitude – this is established
(2) the incident must constitute a sudden shocking event, or violent assault on the senses, it must be sufficiently horrifying, a gradual appreciation is not sufficient – the convulsion satisfies this criteria
(3) he must have close ties of love and affection with the primary victim, this is assumed between a parent and child.
(4) he must have been proximate in time and space to the accident or its immediate aftermath, he is likely to be deemed to have witnessed the immediate aftermath
(5) he must have had a direct appreciation of the accident or immediate aftermath with his own unaided senses which of course he did.
