Summary On Psychiatric Injury

Problem Questions:
1. Is there actionable harm?
Mental harm, unless it is consequential upon a physical injury, is not compensable unless it is a
medically reocgnised illness- Hinz v Berr
 Page v Smith at [167]-mere sensations of fear/ mental distress r grief caused by negligence
are not actionable
 Medically recognised= need medical testimony.
 Guidelines to determine whether medically recognised: DSM-5, ICD-11 {although both state
they should not be sued for legal purposes, in practice both are}
2. CONNECTED TO PHYSICAL INJURY/ PROPERTY DESTRUTION?
Property damage: Attia v British Gas-held that there was a DOC owed to a homeowner in respect of
shock caused by witnessing the destruction of their home.
 imprecise reasoning of the Court of Appeal in Attia

 not clear whether a separate duty was required for the mental harm if the mental harm was
sufficient to satisfy the hurdle of actionable harm
Owens v Lievrpool Corp [1939]-mourners at a funeral held o be owed a DOC {they developed PI after
a collision where coffin fell out of hearse overturned , threatening to spill out its conetnts}
Yearworth v North Bristol NHS Trust- claimants had been diagnosed with cancer and advised to
freeze sperm cells, which they did. Sperm cells later thawed and so could not be used. News of this
caused claimants to suffer PI. CA held that sperm amounted to property that was legally owned by
the men who supplied it even after it had left their body.
3. Stress at work?
If the reasonable person would suffer stress doing the work you are doing then employer has a duty
of care: (i) particular employee was vulnerable to stress induced illness [Walker v Northumberland
CC-social worker who had taken time off work because of mental breakdown was owed a DOC; Yapp
v FCO-no DOC as employee of reasonable fortitude would not have experienced deterioration in
mental health] and/or (ii) it was objectively foreseeable to reasonable employer that PI could result
from particular task [Melville v Home Office-C had to try and rescucitate bodies of suicide victims,
and had dealt with at least 8 bodies over 8 years. Held that a DOC was owed to ensure mental health
was protected; Johnstone v Bloomsbury HA-junior doctor at UCL hospital was working 100+ hours a
week]
 Note: employer is genera;;y entitled to take what he is told by his employee at face value,
unless he has a reason to think to the contrary [Pratley v Surrey CC-enployee made it out
that she was getting on okay, and because of this there was no DOC]
4. Self-infliction?
Greatorex v Greatorex-D does not owe a duty of care to others not to shock them by self-infliction of
injuries.
5. Is C a primary/ secondary victim?

Primary victim=those in the foreseeable ‘zone of danger’ [Page v Smith]. White-primary victims are
exposed to danger and at risk of physical injury. Lord Oliver in Alcock- primary victims are those ‘in
which the injured plaintiff was involved, either mediately or immediately as a participant’
 Also includes guilt ridden victims, who have become an unwilling participant in event. E.g.,
Young v Charles Church (Southern) Ltd – C developed PI after being put into position of
thinking he had been involuntary instrument of death to a colleague. <- Evans LJ: C=primary
victim because was in area of physical risk created by employer’s negligence. However:
reasonable belief in responsibility of others injuries required, not simply a genuine one
[Monk v Harrington] + PI must be linked to this belief [Robertson v Forth Road Bridge]
 Mere fact that someone is a rescuer does not mean they are a primary victim-Chadwick,
White v Chief Constable of the South Yorkshire Police
 Fear of future injury to oneself does not come under this category [Pleural Placques
Litigation], although D may have assumed responsibility as in CJD Litigation
Secondary victim=victims that are not primary victims.
I. PRIMARY VICTIMS:
Requirements:
a. Reasonable foreseeability of physical injury
Physical injury must be reasonably foreseeable, even if psychiatric injury is not.
e.g., A v Essex CC foreseeable bc of past experience of child, they would be particularly vulnerable.
 Test applied ex post facto-Page v Smith at 188

 Question for judges to determine, based on his own opinion being representative of that of
the reasonable man [rather than judge receiving evidence of psychiatrists as to degree of
probability]-McGloughlin v O’Brien at 432A-433C
 Must be considered in relation to the particular claimant, and what defendants knew or
ought to have known about him [McGloughlin v O’Brien at 56]
b. Proximity
- Fagan v Goodman [someone witness to car accident on motorway was not sufficiently
proximate]
c. No requirement of reasonable fortitude/ Alcock requirements.
II. SECONDARY VICTIMS:

a. PI reasonablely foreseeable
b. Alcock requirements
i. Close ties of love and affection between C and person endangered
- No arbitrary qualifying test for this: Lord Keith at 397 in Alcock: ‘[T]he kinds of
relationship which may involve close ties of love and affection are numerous”
- Presumed relationship between parents and children and spouses.
- If not presumed, must prove close ties. Suggested test of ‘dearness, nearness and
hereness’ by Mulheron in Rachael Mulheron (2003) Secondary Victim Psychiatric Illness
Claims, King's Law Journal.
ii. Proximity
McLoughlin v Obrien0 requirement satisfied if C can establish sufficient proximity to
‘immediate aftermath’.<- must be proximate legally and in space and time to an
event at [53] per Hale J
Sympathetic Unsympathetic
Chadwick-arrived just after. Mr Alcock-family members travelling
Chadwick was 200 yards away + arrived across country 8-9 hours
just after rail crash happened.
Galli-Atkinson- 1 hour after in the Taylor v A Novo-C suffered PI by
mortuary. Uninterrupted events. watching incident that occurred 3
weeks after negligence.
McGloughlin- 2 hours after accident in Paul
hospital, C arrived to see family
covered in blood.
iii. C must have suffered shock because of the event/immediate aftermath by his
unaided senses.
“sudden appreciation by sight or sound of a horrifying veent which violently agitated
the mind [401] in Alcock.
 Watching TV is insufficient. However, with high definition you can see a close
level of deatil that you may not be able to see if you were at event itself.
 However, as made clear in Alock, not about medium of communication, rather it
is about what you’re seeing. BBC censor images on TV.
 RESULT MAY HAVE BEEN DIFFERENT IF IT WERE A LIVESTREAM, AS THERE
WOULD NOT BE THIS CENSORSHIP.
c. Reasonable fortitude

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Problem Questions:

1. Is there actionable harm?

 imprecise reasoning of the Court of Appeal in Attia

5. Is C a primary/ secondary victim?

Secondary victim=victims that are not primary victims.

a. Reasonable foreseeability of physical injury

Physical injury must be reasonably foreseeable, even if psychiatric injury is not.

 Test applied ex post facto-Page v Smith at 188

II. SECONDARY VICTIMS:

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