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Psychiatric Injury Notes

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This is an extract of our Psychiatric Injury document, which we sell as part of our GDL Tort Law Notes collection written by the top tier of Cambridge/Bpp/College Of Law students.

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Revision: Tort

DUTY OF CARE II: NERVOUS SHOCK AND PSYCHIATRIC INJURY The meaning of nervous shock/psychiatric damage

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It is the courts that decide - expert witnesses but it is the court's decision as to what is means legally

The current position

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Distinction between PRIMARY VICTIM and SECONDARY VICTIM: introduced by Lord Oliver in Alcock v Chief Constable of South Yorkshire Police to explain previous decisions: must establish which type a claimant is before discussing whether a DOC is owed

Primary victim: someone who suffers nervous shock as a result of reasonable fear for their own physical safety - primary victim doesn't actually suffer physical injury (this would bring negligence claim) - the primary victim is simply in reasonable fear (objective test) - primary victim is involved in the traumatic event in question

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Dulieu v White: Claimant was a pregnant barmaid - defendant negligently crashed his coach and horses through a wall in her pub. She suffered nervous shock (and later a miscarriage) because she reasonably feared that she would be harmed in the collision - entitled to recover as a primary victim

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Page v Smith - claimant involved in a car crash caused by the defendant's negligence - whilst suffered no physical injury, the psychological effects worsened his 'ME' (chronic fatigue syndrome) condition so as to render him disabled - primary victim because his condition arose from reasonable fear for his own safety - condition that he had before came back o

Shock as a catalyst for a medical reaction

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Didn't matter that he'd had it before - thin skull rule

Secondary victim: suffers nervous shock due to fear for someone else's safety, usually close relative. Not in any fear for their own safety; they witness the traumatic event but are not involved

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McLoughlin v O'Brian: secondary victim because she suffered psychiatric damage as a result of concern for her family

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Alcock - all the claimants were secondary - at the football ground at the time of the disaster but none in danger themselves - nervous shock from seeing friends/relatives suffer

Problem cases - bystanders and rescuers Courts not always consistent

1 Revision: Tort

DUTY OF CARE II: NERVOUS SHOCK AND PSYCHIATRIC INJURY

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If a rescuer or bystander suffers nervous shock due to fearing his own safety then will be a primary victim o Chadwick: claimant succeeded in claim for nervous shock as a result of helping to rescue victims from rail crash - primary o Wigg v British Railways Board: train driver who tried to rescue someone trapped under a train: he was himself in danger and suffered the nervous shock due to fearing his own safety

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Contrast: White v Chief Constable of the South Yorkshire Police: police officers (C) from Hillsborough disaster - action was for Post-Traumatic Stress Disorder as a result of experiences - claimed as employees and professional rescuers : HL dismissed claim - status as employees didn't convert them to primary victims - and professional rescuers failed as they weren't actually in danger themselves - court considered Chadwick v BRB and applied Alcock and Page v Smith

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Considered again in Cullin v London Fire & Defence Authority: C was a fire fighter who suffered psychiatric injury after witnessing 2 colleagues trapped inside a burning building - attempt at rescuing them had failed - defendant claimed the case mirrored White but court instead followed obiter statements of Lord Goff in that case: could be argued that the claimant, in his rescue attempt, was exposed to danger or reasonably believed he could be subjected to physical injury - therefore primary victim

Position of bystanders: Unlikely to succeed McFarlane v EE Caledonia Ltd - considered liability for nervous shock suffered by the claimant after an oil rig disasterLaid down guidelines: a) Claimant must have been in actual area of danger but have escaped injury through good fortune/chance; or b) Even if not in danger, can recover if reasonably believed that he was c) Although not originally within the area of danger, he came into it later as a rescuerC in McFarlane failed because he was not actually in danger and was not actively involved in rescue - bystander 2

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