Tort: Psychiatric Injury

• Carlos against Jenny:

  • Jenny must perform to the standard of an ordinary driver, as established in Blyth v Birmingham Waterworks and Nettleship v Weston
  • Likely breach as the activity was illegal and had no apparent utility justifying the risk, as seen in Paris v Stepney
  • Clear factual cause of the accident, as in Barnett v Chelsea & Kensington
  • Injury to a pedestrian like Carlos could be reasonably foreseeable, following the principle in Wagon Mound No.1
  • Possible contributory negligence as another person should have been holding the ladder secure
• • Possible partial defense reducing damages in proportion to fault, under s.1 Law Reform (Contributory Negligence) Act 1945, as in Sayers v Harlow
• • Nearness: she arrived within minutes, strengthening her claim, as in McLoughlin v O'Brien
  • Dearness: she is not a spouse, so the burden of proof would lie on her to show that the relationship between her and Carlos was one of close love and affection, following Alcock v CC South Yorks
• Lisa against Jenny:

  • Jenny's severe psychological distress is likely to be recognized, based on McLoughlin v O'Brien
  • Jenny is a secondary victim as she did not reasonably fear danger and was not in the zone of danger, following Page v Smith
  • Psychiatric injury is arguably reasonably foreseeable following her discovery of Carlos in such a state, even to someone of reasonable fortitude
  • Cause of trauma was the accident, not subsequent negligent medical treatment, as established in Paul v Royal Wolverhampton
  • Hearness: she has witnessed the immediate aftermath with her own unaided senses
• To establish a claim for psychiatric injury, the individual must be suffering from a recognised psychiatric condition
• The first hurdle to overcome is to show that the individual is experiencing a positive psychiatric illness, not just grief or distress
• Only recognisable psychiatric harm is considered for claims, and expert psychiatric evidence is needed to determine the line
• The law restricts the number of potential claimants for psychiatric loss on a policy basis
• Primary injured participants or those who reasonably feared injury from the incident can claim
• Secondary witnesses who are harmed but not in danger of physical harm are subject to policy restrictions for claims
• Criteria for policy reasons differentiate between primary and secondary victims, with a focus on the zone of danger
• Rescuers can claim for psychiatric injury as primary victims if they were exposed to danger themselves, or as secondary victims if they were not in personal danger
• Damage to personal property can lead to a claim for psychiatric loss if the Alcock criteria are met
• The traumatising event does not need to be sudden and shocking for a claim to be made
• The law limits claims to those who have witnessed the event or its immediate aftermath with their own unaided senses
• The time between the accident and exposure to its traumatising effect is crucial for determining the success of a claim
• The law presumes sufficient affection for meeting the criteria only exists between spouses or between a parent and child
• Difficult distinctions are made when determining the level of closeness in relationships for claims
• The law faces a dilemma regarding rescuers' claims, balancing the desire not to dissuade rescuers with fairness in allowing claims
• Psychiatric injury must be based on psychiatric illness, not mere grief or distress
• Claims can only be made for accidents, not reactions to subsequent medical treatment
• Psychiatric injury must be reasonably foreseeable to a person of normal fortitude
• Claims are limited to those who have witnessed the event or its immediate aftermath with their own unaided senses
• The law establishes tests of hearness, nearness, and dearness to restrict claims
• Rescuers can claim for nervous shock if they were personally in harm's way
• Damage to personal property can lead to psychiatric loss if the Alcock criteria are met