TOPIC 6 PSYCHIATRIC INJURY

Question and Answer

Zone B 2019
Question 8
Alison is driving slowly while towing a trailer containing her horses. Caroline, driving behind her,
gets impatient and overtakes on a blind bend. In doing so, she hits the horse trailer, causing it to
turn over. Before Caroline can stop, she encounters Mohammed, eight years old, who has run into
the road chasing a ball. Narrowly avoiding him, Caroline crashes into Buster, who is coming in the
other direction and is driving a stolen car. Buster, who was not wearing a seatbelt, was badly
injured. Alison is uninjured but both of her horses die in the resulting crash. Following the
accident, Alison finds herself unable to drive, due to fear. Mohammed’s mother Eve, did not see
the crash but ran to the scene to administer first aid to Buster. She is now suffering from
depression. Mohammed is now extremely anxious and has terrible nightmares.

Advise Alison, Buster, Eve and Mohammed.

Answer Plan
Introduction
What is psychiatric injury?
Why is it generally difficult for a claimant to successfully sue?

The Duty of Care

A driver of a vehicle owes a duty of care to all road users. However, the existence of a DOC with
respect to the causing of psychiatric harm is not an established category of duty and must be
examined in respect of each claimant.

The status of each potential claimant

Claimant Primary/ Issues/What must be proven?

Secondary
Alison Primary In fear of her own safety – in the zone of physical impact
She also suffered damage to her property: Attia v British Gas
[1998]
Page v Smith [1996] confirmed the right of a primary victim to
sue and the elements to be proven stated to be:
- RF of physical harm (psych injury is not to be
distinguished from personal injury)
- Immediate physical danger
- C’s fear for own safety must be reasonable
She is unable to drive due to fear: can she prove the existence of
a “recognised psychiatric injury”?

Buster Primary Page v Smith [1996] HL

Possible defences:
- Contributory negligence
- Illegality
Eve Secondary Hambrook v Stokes [1925] first case to recognise psych injury
where a parent is in fear of child’s safety;
Mc Loughlin v O’Brian [1983]
Lord Wilberforce’s judgement adopted by House of Lords in

1
 Alcock.
Does the “immediate aftermath” principle apply to Eve?
Furthermore, if she cannot demonstrate she is a secondary victim
under Alcock, is she a “rescuer” deserving of special treatment
under the law: Chadwick [1967] but then see White [1998]
Eve must prove
Her depression a “recognised psychiatric illness”?
PLUS
Alcock control mechanism
- Proximity: dearness, hearness, nearness
- Sudden shocking event
- Psych injury is RF in a person of reasonable fortitude:
Brice v Brown [1984]

M’hd Primary M was put in fear of his own safety but was not physically
harmed: Dulieu v White [1901] is authority for the right of a
person in this position to sue.
In Page v Smith [1996] HL confirmed the right of a primary
victim to sue and the elements to be proven were confirmed as
- RF of physical harm (psych injury is not to be
distinguished from personal injury)
- Immediate physical danger
- C’s fear for own safety must be reasonable

Thus, a DOC is owed to: _____________________________________________-

Breach of Duty of Care

The next issue is breach of the duty of care.
Did C breach her duty of care to all four claimants?

Causation and Remoteness of Damage

Was the harm suffered caused by C?
Does the harm satisfy the test of remoteness?

Defences
Buster – contributory negligence and illegality

Remedies
Damages for all claimants who can successfully claim to be a primary or secondary victim and
satisfy the necessary tests