6/3/23 attendance

Maria and Jonas have taken their children Chloe, aged 8, and Tom, aged 12, on a skiing
holiday in the north of England. On the second day, Chloe and Tom begin lessons in a
children’s ski class run by Eva. Maria is watching them begin their exercises from the coffee
bar when Anton, an experienced skier, crashes into the group of children while going at an
extremely high speed. Tom is thrown into a deep snowdrift, sustaining serious injuries.

Chloe and Maria join others in digging Tom out of the snow. When Eva runs off to get help,
she encounters Jonas and tells him what has happened. He hurries to the scene but cannot
find his family in the big crowd which has gathered. Then he sees one child, looking like
Chloe, who appears to be dead. Tom has two broken legs and his parents care for him
during his two months in hospital, which is followed by a long period of rehabilitation.

Tom becomes depressed during his long months of convalescence. Maria, who has a history
of mental health issues, has been diagnosed with PTSD. Chloe is refusing to attend school.
Jonas has begun to drink heavily and cannot sleep.

Advise the parties

Answer:

The question concerns the tort of psychiatric injury. The claimants are Chloe & Tom, Maria
and Jonas. While Anton should look into the possible liabilities. Claimants include those who
suffered physical injuries and psychiatric injuries. The general rule is that the defendant
owes a duty of care (Donoghue v Stevenson) not to cause physical injury and psychiatric
injury to those whom he can reasonably foresee may suffer from each harm caused by his
action or omission.

To prove liability, the claimants bear the burden of proof to establish there was a duty of
care, breach of duty of care, causation and remoteness (Lochgelly Iron v McMullan).

Courts here are concerned with psychiatric injuries suffered by the secondary victims; the
duty of care has extended to include claims for psychiatric injuries for secondary victims.

Chloe (C) and Tom (T) v A

C and T are primary victims as per Page v Smith which says that primary victims are those
who are directly involved with the incident and are within the danger of foreseeable harm. As
C and T were part of the group of children crashed into by A who was an experienced skier,
that makes her a primary victim. T who sustained physical injuries, needed longer recovery
and became depressed while C refuses to go to school seems to have post traumatic stress
disorder. Thus, both C and T are afflicted with medically recognised mental conditions which
effect is far more troublesome than mere stress.

If they can provide the medical evidence to support this, the duty of care is established White
v CC of South Yorkshire. A violation of this has clearly occurred as A who is an experienced
skier should have reasonably foreseen gathering harm who could have inflicted on
inexperienced skiers. This is reaffirmed by applying the reasonable man’s test.
Therefore, C and T’s application for primary victims of psychiatric injuries is likely to be
successful.

Maria (M) v A

M is a secondary victim. There are four strict requirements for a secondary victim which are
firstly, to perceive the incident with their own unaided senses. Secondly, it must be a sudden
and not a gradual shock. Thirdly, there has to be a close proximate relationship. Lastly, the
reasonable man’s test has to be applied.

M who was watching her children from the coffee bar could certainly see and hear their
accident. This makes her qualify for the first criteria as per Alcock. M who then was
diagnosed PTSD and has long battled with mental illness may rely on the case of Page v
Smith (1996). In the 1996 case, the crash did result in a recurrence of myalgic
encephalomyelitis (chronic fatigue syndrome) from which he had suffered for 20 years but
was then in remission, the defendant was found liable for the claimant’s nervous shock.

Being a family member as well as being present at the scene of the accident establishes M’s
close proximate relationship (Hambrook v Stokes). As per the eggshell skull rule where
“takes the plaintiff as one finds him”, M’s PTSD proves the immediate aftermath of nervous
shock and extreme grief should be worth noting despite the previous recurrence with mental
illness. Hence, M has satisfied the component to prove secondary victim of a psychiatric
injury.

Jonas (J) v A

J, being a family member who was present at the scene but not directly there can be
considered as a secondary victim. Applying the aforementioned requirements of a secondary
victim, it is likely that J would be successful in his claim.

According to White, J would be a secondary victim as he was a witness to the consequence

of the crash. The requirements for a secondary victim include not being directly involved as
well as to satisfy the preliminary and strict requirements (Alcock and Airedale National
Health Service Trust v Bland).

The preliminary requirements are that shock is suffered as a result of D’s action and not from
an existing condition. Next, a shock must be sudden and not developed over a period of
time. Finally, that ‘shock’ has to be a medically recognised condition. Though applying the
strict requirements appears to raise a successful claim, on the facts, J does not have proof
that his sleepless nights and heavy drinking is a recognised disorder. As a result, J might not
be able to bring a successful claim.

Eva (E) v A
E may claim to be a primary victim. As A was the ski instructor teaching the children and was
part of the group crashed into, she may depend on the case of Alcock. The case of Page v
Smith proves that she can regard herself as a primary victim because there is no need to
prove physical injury as long as she was directly involved.

It was also reasonably foreseeable that E would suffer from a psychiatric injury as it was a
tragic crash (McLoughlin v O’Brien). E may qualify as a rescuer too (Chadwick v BRB) and
she must have also feared for her own personal safety (White). Being an employee
witnessing the horrifying event, she may also apply the case of Dooley v Cammell Laird.

Anton (A)
A is liable for the injuries he caused. By applying the ‘but for’ test, A is on the facts, the
cause of the crash as well as there was no intervening act breaking the chain of causation. A
has breached this duty of care when he failed to exercise ‘reasonable care’ (Blyth v
Birmingham). A’s action has caused physical as well as psychiatric injury.