Overall test-Tort-Negligence leading to psychiatric damage

Question 1

What general elements must be met in order for a C to receive damages for psychiatric damage?

Answer 1

Duty of care
Breach
Causation
Not too remote
Absence of a defence

Question 2

Why do the courts take a restrictive approach towards allowing a C to receive damages for psychiatric damage?

Answer 2

-Risk of opening the floodgates because the event can be witnessed by millions of people e.g. Hillsborough Stadium disaster
-Difficulties when diagnosing psychiatric damage-may lead to fraudulent claims
-Traditional tendency to treat physical injuries better than psychiatric injuries

Question 3

What is psychiatric damage?

Answer 3

It is also known as nervous shock and must be one which can be confirmed by a medical expert.
More than mere emotions

Question 4

What case shows that psychiatric damage cannot be mere emotions?

Answer 4

Reilley v Merseyside Health Authority (1994)

Question 5

Who can claim for psychiatric damage?

Answer 5

Primary or secondary victims.

Question 6

What is a primary victim?

Answer 6

Someone directly involved in the accident or a rescuer who feared for their own safety.

Question 7

What case allowed someone directly involved in an accident to make a claim for psychiatric damage?

Answer 7

Page v Smith (1996)

Question 8

What two principles should be considered when analysing whether someone directly involved in an accident should receive compensation for psychiatric damage?

Answer 8

Principle 1: it does not matter if psychiatric damage was not foreseeable as some kind of injury was.
Principle 2: Thin-skull rule applies

Question 9

Usually the incident causing psychiatric damage will be some form of accident but the courts have established that there can be primary Vs in other circumstances. What case demonstrates this statement?

Answer 9

Donachiev Chief Constable of Greater Manchester (2004).
It shows that there will not always be a physical injury involved.

Question 10

As a primary victim, a rescuer who feared for their own safety can be described by what case?

Answer 10

White v Chief Constable of South Yorkshire (1998)

Question 11

What is a secondary victim?

Answer 11

Someone not in physical danger but who witnessed the accident or its aftermath

Question 12

Why are secondary victims more restricted when making claims for psychiatric damage?

Answer 12

This can potentially be a very large amount of people and the courts do not want to open the floodgates to excessive litigation. For example, Hillsborough Stadium disaster.

Question 13

To be qualified as a secondary victim what rules must be met?

Answer 13

a) The C must comply with the Alcock rules
b) The injury must be caused by a sudden shock
c) The C must be of reasonable fortitude

Question 14

What is the full case name for the Alcock rules?

Answer 14

Alcock v Chief Constable of South Yorkshire (1991).

Question 15

What is the first Alcock rule?

Answer 15

The claimant must have close ties of love and affection to the V e.g. parent, child or spouse

Question 16

What is the second Alcock rule?

Answer 16

C must be close to the accident in time and space.
Court may relax this rule for those close to the aftermath as they did in McLoughlin v O’Brien (1983)

Question 17

What is the third Alcock rule?

Answer 17

The accident must be perceived by the C with his own senses
In Alcock those who heard about the accident from any form of media or by word of mouth were excluded from compensation

Question 18

Apart from Alcock there are two other factors a secondary victim must fit into to qualify as a secondary victim what is the second one and what case applies here?

Answer 18

The injury must be caused by a sudden shock
Sion v Hampstead Health Authority (1994).

Question 19

Apart from Alcock there are two other factors a secondary victim must fit into to qualify as a secondary victim what is the third one and what does it mean?

Answer 19

The C must be of reasonable fortitude
There is no thin skull rule – a secondary victim cannot claim for psychiatric injury which would not have occurred to a person with a normal degree of resilience

Question 20

Facts of Reilly v Merseyside Regional Health Authority (1994).

Answer 20

C’s were not able to claim after suffering the emotions of claustrophobia/anxiety after being stuck in a lift

Question 21

Summarise facts of Page v Smith (1996)

Answer 21

P was physically uninjured in a minor road accident caused by D’s negligence, but a pre-existing mild psychiatric condition (ME) had been aggravated by the accident.

Question 22

Summarise facts of Donachiev.

Answer 22

Claimant was police officer required to attach a tracking device to a car belonging to suspected criminals who were in a nearby pub. Tracking device was defective and the C had to make 9 trips to the car with the risk of discovery greater each time. Police force liable.

Question 23

Summarise facts of White v Chief Constable of South Yorkshire (1998).

Answer 23

Cs were police officers attending Hillsborough who witnessed horrific scenes but whose claims failed as they had not feared for their own safety.

Question 24

Summarise Alcock.

Answer 24

Case brought by the relative and friends of those killed or injured at Hillsborough. Aware of the large numbers who could potentially make a claim of this type, HoL established three rules.

Question 25

Facts of Sion v Hampstead Health Authority (1994).

Answer 25

C suffered psychiatric damage after watching his son die over a period of days from road traffic injuries allegedly negligently treated by the hospital.
Claim failed as there was no sudden shock but instead a growing awareness.