Tort - Seminar 11 - Psychiatric Harm Part 2 by Claire Turner

Brian is driving back from the pub where he has consumed five pints of beer. he fails to notice that the traffic lights are red and drives straight through them. He almost collides with a bus coming in the other direction. The bus driver, Charles, swerves to avoid the car, skids and ends up crashing through the window of a sweet shop.

claire43 — 2024-12-05 16:38:16 UTC

Damien a six year old boy who is in the shop buying sweets, is badly injured. Ewan, the owner of the sweetshop, is at the back of the shop when he hears the crash. He rushes to find Damien lying badly injured. He holds and comforts him while they are waiting for the ambulance to arrive.

Freda, Damien's mother, is not in the shop at the time. She is telephoned by the hospital and arrives to find that Damien is in the operating theatre undergoing emergency surgery. She is allowed to see him after the surgery, at which point he suffers a massive fit. She is told he will need to be transferred to another hospital by ambulance for a liver transplant. Unfortunately, two days after the liver transplant she is told that the operation has not been a success and that his life support machine should be turned off.

Advise the following parties as to their remedies in tort, if any:

claire43 — 2024-12-05 16:38:38 UTC

Duty - negligence - Nettleship v Weston (existing precedent)

Breach - lay person standard (Blyth v Birmingham)

(a) Charles, who was unhurt but has undergone a recurrence of panic attacks for which he had treatment three years earlier;

claire43 — 2024-12-05 16:38:43 UTC

(b) Ewan, who feels extremely distressed and is now finding it difficult to sleep;

claire43 — 2024-12-05 16:38:51 UTC

(c) Freda, Damien’s mother, who has suffered a pathological grief reaction; and

claire43 — 2024-12-05 16:39:00 UTC

(d) Gita, a nurse, who witnessed the accident and climbed into the wrecked bus to offer medical assistance; she is now unable to work due to severe mental illness.

claire43 — 2025-12-09 15:02:03 UTC

charles

2025-12-09 15:28:23 UTC

Primary victim

Owed a doc by brian and this was breached
He feared for his own safety and reasonably feared immediate injury to himself Dulieu v White [1901] 2 KN 669—- kennedy j
Page v smith- brain should have reasonably foreseen that in drinking and driving he may cause harm - he should have avoided this accident by not drinking and driving
Hinz v Berry [1970] 2 QB 40 - panic attacks = psychiatric injury - does not matter that he had been treated for it before (thin skull rule - page case)

CAN CLAIM PSYCHIATRIC HARM AS A PRIMARY VICTIM

Ewan

2025-12-09 15:37:10 UTC

(b) Ewan, who feels extremely distressed and is now finding it difficult to sleep;

Could he be a primary victim if the noise meant he feared for his own personal safety (Page v Smith)

Secondary victim, was present for immediate aftermath McLoughlin v O’Brian, witnessed with his own unaided senses- apply Alcock criteria

Proximity time and space, within immediate aftermath.

Sudden shock/ causation he heard the crash + saw aftermath - Lord Ackner Alcock - udden appreciation by sight or sound of a horrifying event which violently agitates the mind...'

Proximity of relationship, no close tie of love and affection.

Insomnia, if he can prove medically prove. Finding it difficult to sleep. Hinz v Berry for medically recognised conditions

Freda's claim

ashbyjake61 — 2025-12-09 15:38:19 UTC

Secondary victim (alcock criteria)

close tie of love and affection - yes
proximity in time and space - no. McLoughlin, Galli Atkinson. Defence - she has seen them after they they have been treated rather than in their raw state after the accident. Taylor v Somerset- told about the accident and no signs of injury.
shocking sudden event - no. Claimant may try to rely on North Glamorgan Hospital v Walters. Alcock - Defence Lord Ackner ''accumulation over a period of time of more gradual assaults on the nervous system' . Gaps in the contact mean that Walters can be distinguished as there was no 'a seamless tale with an obvious beginning and an equally obvious end'.. (per Tomlinson LJ in Alcock)

did not see her son in raw state in the hospital as he was in the operating theatre

the fit may be a novus actus interviens, unsure of this being related to brian

medically recognised condition set in Hinz v Berry, although the claim is too far from Brians actions under alcock criteria

conclusion, cannot claim

Gita

2025-12-09 15:44:31 UTC

she is a rescuer therefore making her the primary vitctim ( page v smith) - fear for their own safety in this case she was concerned of her own physical harm from falling wreckage or explosion

she develops severe mental illness ( hinz v berry) - causation? Barnett v Chelsea.

Secondary victim - Alcock - no close tie of love and affection.

Space and time - witnesses immediate aftermath

Shocking - yes horrific event.