Psychiatric injury

Question 1

What are the key elements in establishing a primary victim claim for psychiatric harm?

Answer 1

The key elements in establishing a primary victim claim for psychiatric harm include identifying the parties involved, identifying the loss suffered, and establishing that the claimant is a primary victim. Additionally, it must be determined whether physical injury was reasonably foreseeable as a result of the defendant’s negligence and if a duty of care is owed based on existing precedents or by analogy with existing cases.

Question 2

What are the Alcock criteria used to determine if a duty of care is owed to a secondary victim?

Answer 2

The Alcock criteria are used to determine if a duty of care is owed to a secondary victim. The criteria include: (1) Was psychiatric harm reasonably foreseeable? (2) Is there proximity of relationship between the claimant and the victim? (3) Is there proximity in time and space to the accident or its immediate aftermath? (4) Was the psychiatric harm shock-induced?

Question 3

What is the distinction between a primary victim and a secondary victim in the context of psychiatric harm?

Answer 3

A primary victim is someone who suffers psychiatric harm as a result of reasonable fear for their own physical safety. They are involved in the traumatic event and are in the area of danger. On the other hand, a secondary victim suffers psychiatric harm due to fear for someone else’s safety, typically a close relative. They witness the traumatic event or its immediate aftermath but are not in the danger zone.

Question 4

What are ‘assumption of responsibility’ cases in relation to psychiatric harm?

Answer 4

‘Assumption of responsibility’ cases refer to situations where a defendant owes a claimant a duty of care not to cause psychiatric harm because the defendant has ‘assumed responsibility’ to ensure that the claimant avoids reasonably foreseeable psychiatric harm. Examples include employer/employee, doctor/patient, and police/police informant relationships.

Question 5

What is the key definition of psychiatric harm?

Answer 5

Psychiatric harm, in this context, refers to a form of psychiatric illness that the claimant has suffered as a result of the perception of traumatic events. It can be either a medically recognized psychiatric illness or a shock-induced physical condition.

Question 6

What is the difference between an actual victim, a primary victim, and a secondary victim?

Answer 6

An actual victim is a person who has suffered physical harm and possibly psychiatric harm. A primary victim is someone who suffers psychiatric harm as a result of being in reasonable fear for their own physical safety. A secondary victim is someone who suffers psychiatric harm due to fear for someone else’s safety. Secondary victims are not in the danger zone.

Question 7

What factors are considered in determining if a duty of care is owed to a primary victim?

Answer 7

To determine if a duty of care is owed to a primary victim, factors such as whether physical harm was reasonably foreseeable and the relationship between the characteristics of the claimant and the requirements made of them by the defendant are considered. Signs of stress and the size and scope of the business and availability of resources are also taken into account.

Question 8

What are some examples of cases involving secondary victims and the application of the Alcock criteria?

Answer 8

One example is the Hillsborough stadium disaster case (Alcock v Chief Constable of South Yorkshire), where claims were brought by relatives and friends of the victims who witnessed the tragedy on live television or heard about it on the radio. The court held that the claimants did not meet the proximity of relationship and proximity in time and space criteria. Another example is the McLoughlin v O’Brien case, where a mother witnessed the immediate aftermath of a car accident involving her family members and successfully claimed for psychiatric harm.

Question 9

What is the significance of the requirement for a sudden shock in secondary victim claims?

Answer 9

The requirement for a sudden shock in secondary victim claims is important because it distinguishes between cases where the psychiatric harm is a reaction to an immediate and horrifying impact and cases where the harm develops gradually over time. The courts have held that a psychiatric illness caused by a sudden shock is more likely to meet the criteria for a secondary victim claim, while gradual realizations of what has happened are less likely to satisfy the criteria.

Question 10

What factors are considered when determining whether it is fair, just, and reasonable to impose a duty of care in secondary victim claims?

Answer 10

When determining whether it is fair, just, and reasonable to impose a duty of care in secondary victim claims, factors such as policy considerations, including floodgates, crushing liability, the risk of fraudulent claims, and evidential difficulties, are taken into account. The court aims to strike a balance between allowing legitimate claims and preventing an excessive number of potential claimants.

Question 11

What is the ‘thin skull’ rule in relation to primary victims of psychiatric harm?

Answer 11

The ‘thin skull’ rule states that if physical injury is reasonably foreseeable, the defendant is liable for the full extent of the psychiatric harm, even if the claimant has suffered to a greater extent due to a pre-existing condition. This rule should be discussed under remoteness in the general negligence sequence.

Question 12

How do the courts determine proximity and fairness in establishing a duty of care for primary victims of psychiatric harm?

Answer 12

If physical injury is held to be reasonably foreseeable, the courts will apply the normal principles for determining the existence of a duty of care. Proximity and fairness are likely to be relatively straightforward in these cases, as the primary victim is always present at the traumatic event, ensuring geographical proximity between the claimant and defendant. If the defendant negligently puts the claimant in fear of their safety, it is likely that the courts will find it fair, just, and reasonable to impose a duty of care for any resulting psychiatric damage.

Question 13

What is the significance of the requirement for a close tie of love and affection in secondary victim claims?

Answer 13

The requirement for a close tie of love and affection in secondary victim claims helps establish the proximity of relationship between the claimant and the victim. This requirement is rebuttably presumed in cases involving parent/child, husband/wife, and engaged couples. However, there is no such presumption for grandparent/grandchild or sibling relationships. The courts consider the nature of the relationship and whether there are close ties of love and affection on a case-by-case basis.

Question 14

How do the courts treat bystanders and rescuers who have suffered psychiatric harm?

Answer 14

Bystanders and rescuers are not given any special status in the area of law concerning psychiatric harm. They are classified as either primary or secondary victims based on whether they feared for their own safety. If a rescuer or bystander suffers psychiatric harm due to fearing for their own safety, they will be considered a primary victim.

Question 15

A neighbour notices their elderly neighbour’s house is on fire. Despite all the smoke, the neighbour can just about see that their elderly neighbour is fast asleep downstairs. The neighbour breaks into the house to rescue the elderly neighbour. Following the rescue, the neighbour suffers respiratory failure due to inhalation of smoke and also suffers clinical depression. Which of the following is correct?

The neighbour is an actual victim.

The neighbour is a rescuer and is therefore a secondary victim.

The neighbour is a secondary victim.

The neighbour is a primary victim.

The neighbour is a rescuer and is therefore a primary victim.

Answer 15

The neighbour is an actual victim.

This is the correct answer. The neighbour is an actual victim as they have suffered physical injury (respiratory failure) as well as psychiatric harm.

Question 16

A man notices his elderly neighbour’s house is on fire. Despite all the smoke, he can just about see that his neighbour is fast asleep downstairs. The man breaks into the house to rescue his neighbour. Following the rescue, he suffers clinical depression. It transpires that the neighbour’s electrician negligently started the fire. Which of the following is correct?

The man is a rescuer and could therefore be owed a duty of care.

A duty of care could be owed as physical injury was reasonably foreseeable as a result of the defendant’s negligence.

A duty of care could be owed as psychiatric injury was reasonably foreseeable as a result of the defendant’s negligence.

A duty of care would not be owed as psychiatric injury was not reasonably foreseeable as a result of the defendant’s negligence.

A duty of care would not be owed as physical injury was not reasonably foreseeable as a result of the defendant’s negligence.

Answer 16

A duty of care could be owed as physical injury was reasonably foreseeable as a result of the defendant’s negligence.

It is reasonably foreseeable to an electrician that if they negligently start a fire in someone’s house, somebody could suffer physical injury. As the ‘rescuer’ is a primary victim, only physical injury needs to be foreseeable not psychiatric injury in order to establish a duty of care.

Question 17

A man was working at an oil storage facility when there was a huge explosion resulting in a fire. The fire was confined to a building one kilometre from where the man was working, but he still feared for his safety. Following the event, he suffered from post-traumatic stress disorder.

Which of the following is correct?

The man will not be classified as a primary victim because he did not reasonably fear for his own safety.

The man will not be classified as a primary victim because he did not fear for anyone else’s safety.

The man will not be classified as a primary victim because he was not physically injured.

The man will be classified as a primary victim as he was in the danger zone.

The man will be classified as a primary victim as he feared for his own safety.

Answer 17

The man will not be classified as a primary victim because he did not reasonably fear for his own safety.

A primary victim is a person who suffers psychiatric harm as a result of reasonably fearing for their own safety. The test is objective not subjective. A reasonable person would not fear for their own safety if the fire was one kilometre away.

Question 18

Noah worked as a teacher at a school. He worked around 70 hours per week. Six months ago, he spoke to the headteacher about his workload and explained that he was not coping well. The following day he was signed off work by his GP for three weeks due to stress and depression. On return to work, Noah explained to the headteacher that he was not coping with his workload and it was becoming detrimental to his health. Two months later he lost control in the classroom and shouted at the students. He left the school and has not returned to work. He has been signed off work with depression by his GP.

Which of the following statements is most accurate?

The school owed Noah a duty of care in respect of psychiatric harm caused by stress at work. It is unlikely that the school is in breach of this duty as psychiatric harm was not reasonably foreseeable; Noah never said he was going to suffer a nervous breakdown/depression.

The school owed Noah a duty of care in respect of psychiatric harm caused by stress at work. It is unlikely that the school is in breach of this duty as although psychiatric harm was reasonably foreseeable, other teachers at the school probably work 70 hours per week and do not suffer from stress.

Noah is not an actual, primary or secondary victim and therefore has no claim.

Noah will be unable to establish a duty of care as psychiatric harm was not reasonably foreseeable.

The school owed Noah a duty of care in respect of psychiatric harm caused by stress at work. It is likely that the school is in breach of this duty as psychiatric harm was reasonably foreseeable; he had three weeks off work for depression and two meetings with the headteacher.

Answer 18

The school owed Noah a duty of care in respect of psychiatric harm caused by stress at work. It is likely that the school is in breach of this duty as psychiatric harm was reasonably foreseeable; he had three weeks off work for depression and two meetings with the headteacher.

There is a precedent establishing that employers owe their employees a duty of care in respect of psychiatric harm caused by stress at work. For Noah to show breach of duty, he must prove the following:
Psychiatric harm to the claimant was (or ought to have been) reasonably foreseeable to the employer. Psychiatric harm was foreseeable given the reasons below;
Foreseeability depends upon the relationship between the characteristics of the claimant and the requirements made of them by the employer, including:
(a) The nature and extent of the work being undertaken. Seventy hours per week suggests Noah was working longer hours than the ‘normal’ teacher given the average working week is 40 hours;
(b) Signs of stress shown by the claimant. Noah had shown signs of impending harm to his health which would have been plain enough for any reasonable employer to realise they should do something: he had been signed off work for three weeks with stress and depression and had had two conversations with the headteacher about his workload; and
(c) The size and scope of the business and availability of resources. This includes the interests of other employees and the need to treat them fairly. Always consider the steps which the employer could and should have taken. The school most likely could have employed someone else to help reduce Noah’s workload.

Question 19

To establish breach in occupational stress claims, psychiatric harm to the claimant must be reasonably foreseeable to the employer. What factors do the court take into account to assess whether psychiatric harm was reasonably foreseeable?

Answer 19

The nature and extent of the work being undertaken; signs of stress from the claimant; and the size and scope of the business and availability of resources.

Question 20

The organisers of a rugby match negligently let too many people into the stadium and people start getting crushed against the barriers. The match is broadcast live on television and although individuals cannot be identified, those watching on television can see people are being crushed against the barrier. A mother is watching the match on television and knows her son is at the game. It turns out her son was in the area of danger but was not physically harmed. Following the event, the son and mother suffer from post-traumatic stress disorder.

What type of victims are the mother and son in relation to a negligence claim causing psychiatric harm?

The son and mother are primary victims.

The son and mother are secondary victims.

The son is a primary victim and the mother a secondary victim.

The son and mother are actual victims.

The son is an actual victim and the mother is a primary victim.

Answer 20

The son is a primary victim and the mother a secondary victim.

The son is a primary victim as he has suffered psychiatric harm as a result of being in reasonable fear for his own safety. The mother is a secondary victim as she has suffered psychiatric harm as a result of being in fear for someone else’s safety. While the other answer options might sound plausible, they are incorrect. The son and mother are not actual victims as they have not suffered any physical injury. The mother is not a primary victim as she was never in reasonable fear of her own safety. The son is not a secondary victim as he did not fear for someone else’s safety and instead was in reasonable fear for his own safety.

Question 21

Newlyweds leaving for their honeymoon are dropped off at the airport by their best man. Just after their arrival at the airport, it catches fire due to poor electrical maintenance. The best man hears about the fire on the radio in his car and is extremely distressed. The newlyweds escape unharmed, but three months later their best man is still suffering from nightmares.

Which of the reasons below is the best reason why a negligence claim brought by the best man against the airport would fail?

He did not suffer from a medically recognised psychiatric illness.

He did not witness the incident.

His distress was not reasonably foreseeable.

He did not fear for his own safety.

He was not related to the newlyweds.

Answer 21

He did not suffer from a medically recognised psychiatric illness.

Correct. In all claims for psychiatric harm a key criterion is that the claimant has suffered a medically recognised psychiatric illness; distress and nightmares are not medically recognised psychiatric illnesses.

Question 22

A married couple are at a festival. The wife stays at the back of the crowd and the husband pushes to the front. Due to poor crowd control arrangements, when the crowd unexpectedly surges forward a number of people at the front are severely injured. The couple are both very frightened. The husband helps to get the injured people into ambulances, but the wife is too worried about her husband to help. Neither of them are physically hurt, but both suffer from a recognised psychiatric illness afterwards. If the couple were to bring a negligence claim against the festival organiser for their psychiatric illness, which of the following best describes how they will be viewed for the purposes of duty of care?

A primary victim and a secondary victim.

An actual victim and a primary victim.

Two secondary victims.

An actual victim and a secondary victim.

Two primary victims.

Answer 22

A primary victim and a secondary victim.

Correct. The husband was in the danger zone and feared for his own safety – Page v Smith (1996) 1 AC 155. The wife was not in the danger zone but feared for her husband’s safety – Alcock v Chief Constable of South Yorkshire Police (1992) 1 AC 310.

Question 23

A man is watching a cricket match on television when he sees part of the spectator area at the cricket ground collapse. The man knows that his son is at the match but does not know where he was sitting. He goes straight to the cricket ground where he is told by the police that his son has been taken to hospital. When he arrives at the hospital an hour later, he is told that his son has died from crush injuries but several hours pass before he is able to identify him in the morgue. The man develops clinical depression.

Which of the following provides the best advice to the cricket ground?

The cricket ground will owe a duty of care as the man’s clinical depression is a sudden reaction to witnessing the accident.

The cricket ground will not owe a duty of care to the man as he saw the accident happen on television.

The cricket ground will owe a duty of care to the man as he witnessed the immediate aftermath of the accident.

The cricket ground will owe a duty of care to the man as he has suffered a recognised psychiatric injury foreseeable in a person of ordinary fortitude.

The cricket ground will owe a duty of care to the man as the father/son relationship is a sufficiently close tie of love and affection to provide proximity.

Answer 23

The cricket ground will not owe a duty of care to the man as he saw the accident happen on television.

The man is a secondary victim as he was not in the danger zone but was in reasonable fear for the safety of his son (Alcock; Page v Smith). He will only be able to establish that he is owed a duty of care, by the cricket ground, if he can meet the criteria in Alcock. One criterion is that the manner of perception must be with one’s own unaided senses. Here he sees the accident happen on television, thus not with his own senses unaided. An exception to this has been made where the claimant has witnessed the ‘immediate aftermath’ of the accident (McLoughlin v O’Brian). However, on the facts the man did not ‘witness’ the injuries to his son for several hours and so would be highly unlikely to succeed on this basis as a time lapse of 7-8 hours was found to be too long in Alcock. Additionally, the man did not know where, at the cricket ground, his son was in the ground. In Alcock, the equivalent manner of perception was found to be insufficient, partly because broadcasting rules prevented the broadcast of recognisable individuals affected. The same would probably apply here and so the man would not be owed a duty of care by the cricket ground.

Question 24

A niece and her aunt go for a haircut and colour. The hairdresser uses the wrong hair dye which causes the niece a severe burning rash and her skin starts to peel away immediately. The niece becomes clinically depressed. The aunt is so upset when she sees her niece’s skin peeling away that she cannot stop thinking about it several weeks later. The aunt is later diagnosed with post-traumatic stress disorder.

Which one of the following statements best explains the legal position in the tort of negligence where the loss is psychiatric harm?

The niece is an actual victim. The aunt is a secondary victim; her claim will likely fail due to insufficient ties of love and affection with her niece.

The niece is an actual victim. The aunt is a secondary victim; her claim will likely fail because she did not witness the event or the immediate aftermath.

The niece is a primary victim. The aunt is a secondary victim; her claim will likely fail due to insufficient ties of love and affection with her niece.

The niece is an actual victim. The aunt is a primary victim; her claim will likely fail as she has not suffered any physical injury.

The niece is an actual victim. The aunt is a primary victim; her claim will likely fail due to insufficient ties of love and affection with her niece.

Answer 24

The niece is an actual victim. The aunt is a secondary victim; her claim will likely fail due to insufficient ties of love and affection with her niece.

The niece is an actual victim as she has suffered physical injury as well as psychiatric harm. The aunt is a secondary victim as she has suffered psychiatric harm as a result of fearing for someone else’s safety. It is likely that her claim would fail as she may not have close ties of love and affection with her niece (the second stage of the Alcock criteria when establishing duty of care). However, of course, we would need to know more about their relationship to be sure but the aunt/niece relationship does not fall within one of the relationships where there is a rebuttable presumption of close ties of love and affection. While the other answer options might sound plausible, they are incorrect. The niece is not a primary victim as she has suffered physical injury as well as psychiatric harm. The aunt is a secondary victim, but she has witnessed the event. The aunt is not a primary victim as she was never in reasonable fear for her own safety.

Question 25

Psychiatric harm must be?

Answer 25

Where a claimant has suffered pure psychiatric harm – ie without physical impact – the injury
must be:
*
caused by a sudden shock; and either
*
a medically recognised psychiatric illness; or
*
a shock- induced physical condition (such as a miscarriage or heart attack).

Question 26

Test for primary victim?

Answer 26

Primary victims
A primary victim is someone who was actually involved in the incident. So, a primary victim:
*
was in the actual area of danger; or
*
reasonably believed that he was in danger.
The requirements for a duty of care to be owed to a primary victim are:
*
primary victims are owed a duty of care in relation to their pure psychiatric harm,
provided the risk of physical injury was foreseeable;
*
for primary victims it is not necessary for the risk of psychiatric harm to be foreseeable.

Question 27

Secondary V?

Answer 27

secondary victim:
*
witnesses injury to someone else; or
*
fears for the safety of another person.

In order to be owed a duty of care, the secondary victim must have suffered a
medically recognised psychiatric illness, or shock- induced physical condition, caused by
sudden shock.

Question 28

Question 1
A solicitor has been instructed by two trade union members: an older man and a younger
woman. They were both attending their annual conference when a car driver lost control
of their vehicle and crashed into the queue of people waiting to get into the conference.
The older man was in the queue. He suffered a minor injury to his leg but has also been
diagnosed with post- traumatic stress disorder (PTSD). The younger woman was on the
other side of the road at the time and saw the accident take place. She has also been
diagnosed with PTSD.
Which of the following statements best explains whether the clients would be
compensated for their PTSD if the car driver’s negligence was proven to have caused
their loss?
A Neither the older man nor the younger woman would receive compensation for their
PTSD because they have suffered pure psychological harm.
B Both the older man and the younger woman would receive compensation for their PTSD
because there is an established duty of care between road users and pedestrians.
C Only the older man would receive compensation for their PTSD because he is owed
a duty of care for his pure psychological harm as he is a primary victim. The younger
woman would not be owed a duty of care for her pure psychological harm as she is
neither a primary victim nor a secondary victim.
D Only the older man would receive compensation for their PTSD because there is an
established duty of care between road users and pedestrians. However, the younger
woman’s PTSD is too remote.
E Only the older man would receive compensation for their PTSD because there is an
established duty of care between road users and pedestrians. However, the younger
woman would not be owed a duty of care for their pure psychological harm as she is
neither a primary victim nor a secondary victim.

Answer 28

Answer
Option E is correct.
Option A is wrong because the older man has not suffered pure psychological harm (PPH) as
his PTSD has been caused by a physical impact. His PTSD would be compensated for as part
of the pain and suffering for the physical injury. It is correct, however, the younger woman has
suffered PPH and that she would not be compensated for this (see further below).
Option B is wrong because, while there is an established duty of care between road users
and pedestrians, this would not assist the younger woman as she has suffered PPH. The
established duty is only relevant for personal injury or property damage and not for PPH.
Option C is wrong because the older man has not suffered PPH. He is owed a duty of care
because he has suffered a physical injury and the established duty of care between road
users and pedestrians applies. His PTSD would be covered under this established duty and
the older man would not have to rely on the special rules that apply for PPH. (The test for
a primary victim (PV) only applies for PPH, ie psychological harm without physical impact.)
It is correct, however, that the younger woman would not be owed a duty of care for her
PPH as she is neither a PV nor a secondary victim (SV). She was not a PV as she was not
in the ‘danger zone’ when the car crashed. There is also nothing on the facts to suggest
that she had a close relationship of love and affection with any person who was physically endangered by the car driver. She would not, therefore, be classed as a SV as she would not
satisfy all the Alcock control mechanisms.
Option D is wrong because the younger woman would not be owed a duty of care for her
PTSD. The claim would therefore fail at the duty of care stage and the question of remoteness
is, therefore, irrelevant.

Question 29

Question 2
A client has been diagnosed as suffering from post- traumatic stress disorder. This was
caused when the client was in a local park recently. They saw a lorry 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 lorry 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 lorry 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 post- traumatic stress disorder?
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 lorry 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 did not have a close tie of love and affection with the
dead child.
E No, because the client was not in any physical danger.

Answer 29

Answer
Option D 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 E 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.

Question 30

Question 3
A client is a firefighter and has been diagnosed as suffering from depression. This was
caused when the client attended an accident on a motorway. Two cars had collided and
crashed into the central reservation. The fire engine 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 depression?
A Yes, because the client has suffered a foreseeable psychiatric injury due to what they
saw and heard.
B Yes, because the client was in danger of suffering a physical injury during the rescue.
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.

Answer 30

Answer
Option B 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 A 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.

Question 31

Question 41

A man and a woman who had never met each other were at a swimming pool. The man had a lesson from a qualified instructor but due to the negligence of the instructor the man struggled in the deep end of the pool and drowned. The woman saw the entire incident and developed traumatic neurosis as a result.

Can the woman recover damages against the instructor for the traumatic neurosis?

A. Yes, because the instructor breached the duty of care he owed to the man and his negligence caused the woman loss.

B. Yes, because the instructor breached the duty of care which he owed to the woman and his negligence caused her loss.

C. Yes, because the woman is suffering from a medically recognised condition.

D. No, because the instructor did not owe the woman a duty of care.

E. No, because the woman’s loss is too remote.

Answer 31

D - No, because the instructor did not owe the woman a duty of care.