Psychiatric Injury

Question 1

Psychiatric injury plan

Answer 1

Can claim damages albeit on a restricted basis

• The psychiatric injury must be long term diagnosed, and greater than shock or grief - Hinz v Berry
• Grief, sorrow, fear, panic and terror do not amount

Types of victims to determine approach:
- primary - someone in the zone of danger (proximate)
- secondary - someone not within the zone of danger but a witness of a horrific event
- zone of danger = the area within which one is in actual physical peril from the negligent conduct of another

Objective test to determine primary V - claimant must show that physical harm was foreseeable, there’s no requirement that psychiatric injury was - Page v Smith, McFarlane v E.E. Caledonia

Alcock tests (Alcock v Chief Constable for South Yorkshire) to determine secondary V:
1) Have a close tie of love and affection with a primary V (presumed between spouse and parent/child, but must be proven in other relationships)
2) Witness the event with their own unaided senses (TV and radio broadcasts aren’t sufficient)
3) Be proximate the the event or its immediate aftermath - McLoughlin v O’Brian
4) Receive the psychiatric injury as a result of a horrifying event - Alcock v Chief Constable of South Yorkshire, Sion v Hampstead Health Authority

Rescuers are those who come to the aid of primary V’s - they are not primary nor secondary V’s (not exceptions to the Alcock tests) - White v Chief Constable of South Yorkshire

Question 2

Hinz v Berry

Answer 2

Greater than shock or grief

Psychiatric injury was foreseeable and medically recognized, so C was entitled to damages

Question 3

Page v Smith

Answer 3

Primary V - objective test

Psychiatric injury is recoverable if any personal injury was foreseeable, even without actual physical harm

Question 4

McFarlane v E.E. Caledonia

Answer 4

Primary V

C wasn’t in zone of danger, despite his belief, and therefore not a primary V

Question 5

Alcock v Chief Constable for South Yorkshire

Answer 5

Alcock tests

Lord Alcock: ‘the sudden appreciation by sight or sound of horrifying event, which violently agitates the mind’

• therefore, excludes psychiatric injury developed over time due to providing care for primary V

Question 6

Sion v Hampstead Health Authority

Answer 6

C cannot recover damages for psychiatric injury caused by witnessing a gradual, not sudden, traumatic event - death was expected and not sudden

Question 7

White v Chief Constable of South Yorkshire

Answer 7

Rescuers

Police officers could not claim as they were not primary nor secondary V’s

Question 8

McLoughlin v O’Brian

Answer 8

Proximity

Lord Wilberforce: ‘sight or hearing of the event or of its immediate aftermath’