Psychiatric Harm

Question 1

Arguments for restricting compensation for pure psychiatric grief:

Answer 1

1) The difficulties of drawing a line between acute grief and psychiatric illness (fear of sham claims).
2) The effect the increased availability of compensation might have on potential claimants (disincentive to rehabilitation).
3) Significant increase in class of claimants who could recover and the alleged danger of an over-proliferation of claims (‘floodgates’).
4) Potential unfairness to the defendant of imposing damages out of all proportion to the negligent conduct.

Question 2

Primary victims:

Answer 2

Page v Smith [1996]
Claimant involved in a minor RTC caused by the defendant’s negligence. No physical injury, but the accident triggered the recurrence of chronic fatigue, for which he was in remission.
Lord Lloyd’s restrictive definition of a primary victim as a party who is necessarily in the zone of danger.

Question 3

Secondary victims fortitude:

Answer 3

Must be reasonably foreseeable in a person of ‘ordinary fortitude’, ordinary phlegm or fortitude.

Bourhill v Young [1943]
Woman eight months pregnant witness a serious motorbike accident. Didn’t see it but heard and saw blood, suffered serious psychiatric harm and baby was stillborn. HoL rejected claim, her injuries were not foreseeable. Not in physical danger and particularly susceptible to shock.

Question 4

Alcock control mechanism requirements:

Answer 4

1) Relationship with the victim, close tie of love and affection;
2) Proximity in time and space;
3) Means by which the shock is caused.

Question 5

Means by which shock is caused case:

Answer 5

Sion v Hampstead Health Authority [1994]
A father was unable to recover for psychiatric harm sustained as a result of watching his son over a period of 14 day’s while become increasingly aware that the hospital was negligent in its treatment of him.

Question 6

Proximity in time and space cases:

Answer 6

McLoughlin v O’Brien [1982] arriving at the hospital two hours after the incident was sufficient, but Alcock’s search at the ground and then identifying his brother’s body 8 hours later wasn’t. His brother’s body was memorably described as “too-dry” to allow recovery.

Question 7

Lord Oliver quote about proximity in time and space:

Answer 7

“Furnished, at least in part, by both physical and temporal propinquity and also by the sudden and direct visual impression on the plaintiff’s mind of actually witnessing the event.”