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Psychiatric Damage: Liability

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Psychiatric Damage: Liability

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  • Cs can claim psychiatric damage (PD) / refined rules only if pure PD (no physical injury) / pain & suffering covers if flows from personal injury
  • all PD cliams / 2 restrictions: medically recognised condition / induced sudden shock / aim: determine genuine claims / prevent floodgates / limit D's possible liability

Medically recognised condition

  • Ackner: .. law gives no damages if the psychiatric injury was not induced by shock... (Alcock v South Yorkshire Police [1992])
  • medically recognised conditions: personality disorder (Chadwick v British Transport Commission [1967]) / PTSD (Leach v Gloucestershire Constabulary [1999]) / pathological grief (Kralj v McGrath [1986])
  • insufficient: normal grief (Kralj v McGrath [1986]) / distress (Vernon v Bosley [1997]) / fear: normal emotion (Hicks v South Yorkshire Police [1992])

Sudden event

  • insufficient: even if foreseeable C / may gradually suffer PD
  • Ackner: .. sudden appreciation by sight or sound of a horrifying sight or sound or a horrifying event, which violently agitates the mind... (Alcock v South Yorkshire Police [1992])

Duty of care

  • D must owe C duty of care (DoC) / only duty if C a reasonably foreseeable victim
  • primary or secondary victims / proximity to incident / different criteria establish DoC
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Psychiatric Damage: Liability

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Duty of care: primary victims

  • D owes primary victim DoC not to cause pure psychiatric damage / if risk physical injury foreseeable

Page v Smith [1996]

  • minor car crash / no psychical injury / chronic ME / previously mild
  • DoC owed: P primary victim / involved in accident
  • primary victim: actual area of danger or reasonably believed he was in danger / secondary victim: witnesses injury to another or fears for safety of another
  • primary victims: risk of psychiatric harm not need be foreseeable / if physical harm foreseeable / outmoded to treat differently
  • earlier case: barmaid miscarriage induced shock & fear own safety (Dulieu v White & Sons [1901])

Duty of care: secondary victims

  • secondary victim: less closely involved than primary victim / DoC test more stringent / narrow D's liability

Alcock v South Yorkshire Police [1992]

  • Ps: relatives Hillsborough victims / assumed PTSD / some spectators / some witnessed tv / Ds: police force / admitted negligence for overcrowding / denied DoC spectators for PD / HoL: no DoC / test not satisified
  • test: foreseeability of psychiatric harm: reasonably foreseeable person of normal fortitude in P's position would suffer PD / proximity of relationship: P close relationship of love & affection person endangered by D's negligence / proximity time & space: P present at incident or immediate aftermath / proximity perception: P see or hear / incident or immediate aftermath / with own senses
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Psychiatric Damage: Liability

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Duty of care: secondary victims

Secondary victims: foreseeability of psychiatric harm

  • objective test: reasonably foreseeable / person of normal fortitude / in C's position / suffer PD?

Secondary victims: proximity of relationship

  • close relationship of love & affection with immediate victim
  • rebuttable presumption if: parent / child / spouse / C argue other relationships sufficient
  • bystander: may be sufficient: petrol tanker school passer by (Alcock v South Yorkshire Police [1992]) / not (McFarlane v EE Caledonia [1994])

Secondary victims: proximity in time & space and perception

  • approved in Alcock / P family car crash / hospital 1hr / time & space sufficient: immediate aftermath / victims same condition (McLoughlin v O'Brian [1982])
  • time & space insufficient: brother in law / mortuary / 8hrs (Alcock v South Yorkshire Police [1992])
  • time & space sufficient: mother / mortuary / 2hrs (Galli-Atkinson v Seghal [2003])
  • perception / Lord Wilberforce: .. The shock must come through sight or hearing of the event or of its immediate aftermath... (McLoughlin v O'Brian [1982])
  • tv / no perception proximity: not identifiable individuals (ethics code) / not equivalent actual sight or hearing (Alcock v South Yorkshire Police [1992])
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Psychiatric Damage: Liability

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Duty of care: rescuers

  • rescuers / PD / after helping at accident / caused D's negligence
  • crawled under train / DoC owed: in danger as rescuer (Chadwick v British Transport Commission [1967])
  • oil rig / ship 100m away / no DoC: bystander not rescuer (McFarlane v EE Caledonia Ltd [1994])
  • police / Hillsborough / HoL: not primary victims / not within range foreseeable physical injury / PD result witnessing immediate
  • aftermath / rescuer only primary if in danger or reasonably believes is / reversed Frost CoA (White v South Yorkshire Police [1999)

Breach of duty & causation

  • C must also show D: breach DoC & breach caused damage / remoteness issues
  • primary victim: can rely egg shell (Page v Smith [1996]) / secondary victim: show PD objectively reasonably foreseeable (person normal fortitude in C's position would suffer PD) / if satisfied C then can rely egg shell (if greater PD than normal suffered)


  • C primary victim: wrongly believes / due D's negligence / caused death or injury (Dooley v Cammell Laird [1951])
  • CoA: only Ps at scene / claim for misconception (Hunter v British Coal [1998])
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Psychiatric Damage: Liability

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Witness to destruction of property

  • C can claim / PD / after witnessing destruction of property
  • pre Alcock / house fire / P succeed if D DoC not damage property / no distinction physical & PD (Attia v British Gas [1988])

Development of the law

  • Law Commission / report Liability for Psychiatric Illness (1998) / recommend statutory DoC: not cause PD / coexist common law / no legislative provision yet
  • Alcock: proximity time & space / not applicable
  • Alcock: proximity relationship / applicable / close ties love & affection / list of automatically qualify: spouse / parent / child / sibling / cohabitant (at least 2 yrs)
  • no sudden shock principle: PD due prolonged trauma not excluded
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