Tort (2014)- Q2

A) Psychiatric illness
Definition
There must be an actual psychiatric injury, mere emotions of fear, worry, grief, sorrow are
not sufficient.
Examples of psychiatric illness- anxiety neurosis, reactive depression, physical illness
such as heart attack
Test of liability for psychiatric injury is foreseeability of injury but "foreseability" was
given a restricted meaning in order to limit the potential number of claims.
- primary victim is:- shock alone without physical injury held to be recoverable in
- Dulieu v White & Sons
- the Pf, a pregnant barmaid, suffered shock followed by illness, causing premature birth
of her child when a cart and runaway horses crashed into the pub where she was working.
- there was no physical injury but she was in fear of her own safety
- on this basis her claim succeeded
- Primary victims are those in the zone of physical danger
- Primary victims only need to establish that physical harm was forseeable
-There is no requirement to establish that psychiatric illness was forseeable
- Page v Smith
- Held:- Provided some kind of personal injury was foreseeable
- it did not matter whether the injury was physical or psychiatric.
- There was thus no need to establish that psychiatric injury was forseeable.
- Also the fact that an ordinary person would not have suffered the injury incurred by the
Pf was irrelevant as the Df must take his victim as he finds him.
B) secondary victims
- Secondary victims are those not within the physical zone of danger but witnesses of
horrific events.
-Hambrook v Stokes Bros
Held:- The Pf was entitled to recover, notwithstanding that the shock was brought about
by fear of her children's safety and not by fear of her own.
- Secondary victim must be present at the scene of the accident or close to it so that the

accident is perceived by his senses.

- Hinz v Berry-Pf witnessed her husband's death and her children's injuries
- Boardman v Sanderson- father suffered nervous shock upon hearing his child's screams
when Df's car ran over the child
- Zainab v Marimuthu- Pf witnessed Df's lorry knocking down her daughter
- Relationship with the victim is a pre-condition
The Aftermath Test
- The requirement that secondary victim must be at or close to the scene of the accident
was changed.
- McLoughlin v O' Brian
- The House of Lords held unanimously that her nervous shock was foreseeable even
though she did not witness the accident and her claim for damages in negligence was
successful.
3 requirements:1. Secondary victims have close ties of love and affection with victims.
2. Nervous shock suffered through witnessing of damage- causing events or their
immediate aftermath
3. It's experienced through their own unaided senses.
For present situation
- Secondary victims must demonstrate the 4 Alcock criteria in order to establish liability:1. A close tie of love and affection- this will be presumed in parent and child and spouses
but must be proved in other relationships including brother and sister.
2. Proximity to the event itself or its immediate aftermath- the relatives who had visited
the makeshift mortuary to identify loved ones was held not to come within the immediate
aftermath of the event.
3. Witness the event with their own unaided senses- seeing the events on TV is not
sufficient
4. Psychiatric injury must be a result of a shocking event.
Categories of secondary victims
1. Rescuer
- Lord Oliver in Alcock had originally classed rescuers such as seen in Chadwick v

British railways Board primary victims for policy reasons. Rescuers should be
encouraged rather than deterred.
- White & Ors v Chief Constable of South Yorkshire- disallowed claim by police officers
for psychiatric illness suffered by them as a consequence of rescue operations
- Those who believe they are the cause of another's death:
- Hunter v British Coal Corp- psychiatric injury in consequence of property damage
-Attia v British Gas- allowed claim for nervous shock upon seeing destruction of her
house by fire due to Df's employee's negligence
2. Mere bystander
-Psychiatric injury to a bystander who is unrelated to the primary victim is generally
unforseeable.
-Bourhill v Young
- The Pf was not a primary victim, neither did she have any relationship with the accident
victim
- Such injury was held not to be reasonably forseeable but the case can also be explained
on policy grounds. She was no more than a bystander, to whom no duty of care was
owed, although her claim was not dismissed specifically on that ground.
3. Participating bystander
- Although if the bystander could be said to be in the zone of physical danger, such that
physical injury to himself was foreseeable then he could possibly recover from
psychiatric illness in the absence of any physical damage (McFarlane v EE Caledonia)
C) Pf falls into which category
- primary victims- Pfs need not prove requisite relationship of love and intimacy with the
primary victims
- secondary victims- need to satisfy Alcock test