Nervous Shock & Psychiatric Damage

Question 1

Psychiatric harm is defined

Answer 1

medically not legally

Question 2

Recognised psychiatric illness

Answer 2

Hinz v Berry

Question 3

Positive psychiatric illness

Answer 3

McLoughlin v O’Brian

- Claimant saw her husband and and children in the hospital after an accident

Question 4

Psychiatric illness

Answer 4

Attia v British Gas

- gas engineer started a fire in a customers house

Question 5

It must be a medical condition; grief and sorrow is not enough

Answer 5

Alcock v CC S. Yorkshire

- Hillsborough disaster

Question 6

Depression qualifes

Answer 6

Hinz v Berry

- berry killed hinz in a car crash and Mrs Hinz died of depression

Question 7

Recurrent mental illness brought on by shock qualifies

Answer 7

Page v Smith

- a car crash triggered the claimants mental illness

Question 8

Anxiety, bereavement, grief and fright are the ‘normal vicissitudes of life’ and does not qualify

Answer 8

Reilly v Merseyside HA

- Mr and Mrs Reilly were trapped in a hospital lift for over an hour

Question 9

If the grief is pathological it may qualify

Answer 9

Vernon v Bosley

- dangerous driving had caused the death of the claimant’s daughter

Question 10

A physical injury or illness brought on by shock qualifies

Answer 10

Bourhill v Young

- witnessed the aftermath of a motorcycle crash and subsequently lost her babay

Question 11

Any psychiatric illness must be brought on by a sudden shock.

Answer 11

Sion v Hampstead HA

- as a result of hospital staff negligence she watched her son deteriorate and die over 2 weeks

Question 12

Primary victims

Answer 12

Those worries for themselves: if you were exposed to physical danger or believe you were then you were a primary victim
White v S. Yorkshire - train crash victims (primary)
Monk v Harrington - rescuers (not primary)

Question 13

Courts will take the ‘eggshell personality’ rule into account for primary victims

Answer 13

Page v Smith

Question 14

foster parents who fostered a sex offender could be primary victims as they had felt responsibility

Answer 14

W v Essex CC

Question 15

The victim asleep at home when a car chased into his house was a primary victim

Answer 15

Bourmediene v Delta Display Ltd

Question 16

Secondary Victims

Answer 16

Those worried for somone else

Question 17

A secondary victim claim will only be allowed if psychiatric harm is foreseeable

Answer 17

Hambrook v Stokes

- a runaway lorry caused a mother to fear for the safety of her children and subsequently died of shock

Question 18

Test for whether a secondary victim may recover

Answer 18

Would a person of ‘normal fortitude’ have suffered psychiatric harm (Brice v Brown)
- claimant had a history of mental instability

Question 19

Alcock test

Answer 19

• was there a close tie of love and affection between the SV and the PV?
• was the SV sufficiently close and proximate in time and place to the incident?
• did the SV directly perceive the incident?

Question 20

A close tie of love an affection will be presumed between a husband and wife or parent and child

Answer 20

McFalane v Caledonia Ltd

- not found in this case

Question 21

Witnessing the immediate aftermath of a disaster was sufficiently proximate in time and space

Answer 21

McLoughlin v O’Brian

Not in Taylor v A Novo

Question 22

Shock must come through sight or hearing of the incident or it’s immediate aftermath

Answer 22

Hambrook v Stokes Bros

Question 23

Seeing a TV broadcast was insufficient to meet the ‘directly perceived’ test.

Answer 23

Alcock.

Question 24

Lord Stein in White:

If psychiatric harm were to be placed on the same level as physical injury

Answer 24

• Cause an unconscious disincentive to recover.
• Increase the number of individuals who could claim for damages
• Potential disproportionate burden of defendants

Question 25

1998 English Law Commission Report 
Draft Negligence (Psychiatric Illness Bill)

Answer 25

• sudden shock requirements be removed
• 2nd and 3rd Alcock test be removed
• criteria of love and effective be expanded e.g. siblings.

Question 26

Teff

Answer 26

Divide between ‘primary’ and ‘secondary’ harm is difficult.

• need a more flexible and generous approach
• centred on foreseeability rather than shock and proximity
• Current categories are artificial and deny remedies to those that need it
• floodgates argument is exaggerated.

Question 27

Stapleton

Answer 27

Current rules are ‘silly’

• artificial limits of liability: relationship, space, time
• a reasonable boundary on claims is unattainable and therefore claims for psychiatric harm should be abolished altogether.
• floodgates argument is exaggerated.