Chapter 5 Outline answers to essay questions

Psychiatric injury

‘The concepts of primary and secondary victims have not helped to bring clarity to the law regarding liability for psychiatric injury.’

Discuss.

Begin by outlining what is meant by psychiatric injury and then go on to detail why it has been treated as a problematic type of damage in negligence law. The key points in the development of the law should be highlighted, tracing the gradual expansion of duty of care in this area over the course of the 20th century: Dulieu v White, Hambrook v Stokes, Bourhill v Young, and McLoughlin v O’Brian.

Then explain what is meant by the terms ‘primary’ and ‘secondary’ in respect of victims, linking back to the cases above. The way that the concepts were used in Alcock v Chief Constable South Yorkshire should be set out and, of course, the key case is Page v Smith where, in 1996, their importance was explicitly confirmed.

In order to reach a conclusion on the clarity of the law, you must consider the growing number of instances in which it has been unclear what category will apply and/or give the ‘correct’ outcome: W v Essex County Council, White v Chief Constable South Yorkshire, Greatorex v Greatorex, and McFarlane v EE Caledonia. Good answers will discuss the Law Commission proposals of 1998.