Psychiatric Harm- Duty of Care

Question 1

What is the first thing to establish when seeing what psychiatric harm is at issue?

Answer 1

See if its:

A) Consequential Psychiatric harm

or

B) Pure Psychiatric harm

Question 2

What is Consequential psychiatric harm?

Answer 2

This is psychiatric harm resulting from physical injury
its consequential

eg: losing a leg from car accident leading to PSTD

if this is the case, the normal rules for negligence apply

duty of care, is there breach of this duty, is D the cause of this breach etc

Question 3

What is pure psychiatric harm?

Answer 3

This is where the harm exists without any physical injury

this is purely mental illness, no physical injury

The general rule is that you can’t recover for this

But if there is a case of pure psychiatric harm, then different rules from negligence apply.

Question 4

What approach do we use for pure psychiatric harm?

Answer 4

1) Work out is the condition that C got medically recognised?
2) Was C a primary or secondary victim?

Question 5

Who are Primary Victims?

Answer 5

These are victims who are in the zone of danger

Key authority- Page v Smith 1995:
‘primary victim must be within the range of foreseeable danger’

Question 6

Who are secondary victims?

Answer 6

This is the bystander
they are not at risk from being injured but they witness the harm

Alcock says: ‘this is the passive and unwilling witness of injury caused to others’

Question 7

What is the approach for primary victims?

Answer 7

1) Key question: If physical injury is reasonably foreseeable (i.e. C is in the zone of danger) then C can recover from pure psychiatric harm

Page v Smith [1995]

So the key question is: once D owes a duty of care in terms of physical harm, then this will extends to psychiatric harm

Question 8

What is the approach for secondary victims?

Answer 8

More restrictive than approach for primary victims

Here 5 things need to be established for a duty of care towards secondary victims arise:

1) Psychiatric harm is reasonable foreseeable in a person of ordinary fortitude

Alcock Criteria:

1) Close tie of love and affection
2) Proximity in time and space
3) Perceived through unaided senses
4) Sudden shock

Question 9

What are some key cases for seeing if there is a medically recognised condition?

Answer 9

Hinz v Berry [1970]- C witnessed car crash with husband and kids inside. Couldn’t claim for grief but could claim for P harm

Hicks v CC South Yorkshire Police [1992]- Hillsborough case- father suing police for daughter getting crushed in stadium- couldn’t claim for fear and distress.

Question 10

Explain the first requirement of the secondary victim approach

Answer 10

Psychiatric harm is reasonably foreseeable in a person of ordinary fortitude:

Is it reasonably foreseeable for a normal person?
it must be psychiatric harm and not just physical harm

Key case:
Bourhill v Young [1943] - pregnant women witnessed death of husband and kids in accident- led her baby to be stillborn. Claim failed as it wasn’t reasonably foreseeable that such a harm would occur

Brice v Brown [1984]- C had a psychiatric disorder, she witnessed daughter in car accident leading her to suffered from her disorder. Court said she couldn’t claim because this was pre- existing

Question 11

Explain the first requirement in the alcock criteria

Answer 11

Req 1: Close tie of love and affection

C needs to have a close tie with the actual victim of the incident

there is a presumption for spouse/parent/ children but this can be rebutted. relationships outside this have to be evidenced

Alcock- one of Cs was brother of victim- but held to not have sufficiently demonstrated a close tie.

McFarlane v Caledonia [1994]- Mere bystanders cannot claim unless the event was particularly horrific- C witnessed serious fire in oil rig killing 200 people- he witnessed over several hours on a boat

Question 12

Explain the second requirement of Alcock criteria

Answer 12

Req 2: Proximity in time and space

Alcock [1992] describe this as actually witnessing the event or its immediate aftermath

Key cases:
Alcock v CC South Yorkshire (1992)- brother of victim arrived at stadium 8 hours later, saw all bodies lying on floor. Court said here wasn’t proximate time and space, it was not in immediate aftermath and blood was all dried

Question 13

Explain the third requirement of Alcock criteria

Answer 13

Req 3: Perceived through unaided senses

C must see this themselves

it cannot be told by third party, seen on TV or heard on radio

It can be live TV- Alcock 1992- Lord Ackner said it can be on live tv where its clearly showing victims dying

But if you do witness it, you can sue the messenger:
Wilkinson v Downton [1987]- D pulled a prank on C that her husband was seriously injured when he wasn’t. She suffered from P harm- claim successful

Farrell v Avon Health Authority [2001]- C arrived at hospital and told that his new-born baby died. He spent 20 mins crying with dead baby. Later he was told it’s not his baby- he sued as this info was given negligently. This was successful

Question 14

Explain the fourth requirement of Alcock Criteria

Answer 14

Req 4: Sudden shock

There must be a sudden shock to the claimant

Key cases:
Sion v Hampstead Health Authority [1994]- C claimed to have suffered P harm after seeing his son die over 2 weeks- this wasn’t sudden shock so claim failed

Polmear v Royal Cornwall Hospitals [2021]- Cs daughter suffering from shortness of breath, doctors misdiagnosed her she died a few months later- considered as sudden shock

Question 15

What are the three special types of victims?

Answer 15

Rescuers
Involuntary participants
witnesses to self inflicted harm

Question 16

How are Rescuers treated?

Answer 16

These people who help others in accident
They don’t get any special treatment, same rules apply
They need to meet criteria of primary/ secondary victim

Key case:
White v CC of South Yorkshire Police [1999]- Court held police officers were not in the zone of foreseeable danger

Question 17

How are involuntary participants treated?

Answer 17

These are unwilling participants

Key case:
Dooley v Cammell Laird & Co[1951]- C was crane operator, load lifting fell on employers- he was worried they died- they didn’t. but C was shocked and developed PTSD- claim successful

Question 18

How are witnesses to self inflicted harm treated?

Answer 18

These are individuals (C) that may have been witnesses to people inflicting harm on themselves (D)

Here, D (victim) does not owe a duty to C (witness)

 Greatorex v Greatorex [2000]- D crashed his car after drink driving and trapped in wreckage. C was a firearm sent to deal with this- C was also Ds father and witnessed the aftermath of crash and developed PTSD. His claim was unsuccessful- courts based it on policy grounds that otherwise other family members would make claims