3.3 - Psychiatric injury

Legal Problem And Scope

Psychiatric injury is a form of personal injury, but negligence does not compensate every emotional reaction to an accident. The law draws a line between a recognised psychiatric condition and ordinary grief, anxiety, fear or distress. That line matters because psychiatric harm can be serious, but the courts have been cautious about opening liability to everyone affected by a shocking event.

For AQA, the topic sits inside negligence in Paper 2. A strong answer normally starts with the ordinary negligence structure, then applies the special psychiatric injury rules:

The common exam mistake is to treat psychiatric injury as a general fairness question: "they suffered, so they should recover." AQA rewards a narrower legal method: identify the claimant type, state the relevant test, use authority, apply material facts and then evaluate the restriction if the question asks for AO3.

Actionable Psychiatric Injury

Before deciding whether someone is a primary or secondary victim, ask whether the harm is legally actionable. The claimant must show a positive, recognised psychiatric condition. Examples may include diagnosed PTSD or a recognised depressive illness, depending on the evidence. Ordinary sorrow, shock, fear, anger, upset or grief will not be enough on their own.

Reilly v Merseyside RHA is useful for this boundary. The claimants were trapped in a lift and experienced fear and distress, but the case is used at AQA level to show that unpleasant emotions alone are not enough without a recognised psychiatric illness. The authority is not a decoration: it proves the threshold between non-actionable emotional upset and actionable psychiatric damage.

This threshold has two consequences:

1. A claimant who has no recognised psychiatric condition fails even if the defendant was negligent.
2. A claimant with a recognised condition must still satisfy the primary or secondary victim rules.

Do not write as if the diagnosis automatically wins the case. Diagnosis opens the door; claimant classification and foreseeability decide whether negligence liability passes through it.

Classifying The Claimant

The classification question is the engine of the topic.

A primary victim may suffer psychiatric harm even if they escape physical injury, provided personal injury was reasonably foreseeable. Page v Smith is the key AQA authority: a claimant directly involved in a collision could recover for psychiatric harm where personal injury was foreseeable, without needing to prove that psychiatric injury itself was separately foreseeable.

A person can see or hear the accident and still be secondary if they were never themselves in the zone of danger. This is a major examiner warning: witnessing is not the same as being a primary victim.

The classification must be objective. Do not decide it by sympathy, closeness to the injured person, or how badly the claimant suffered. Decide it by the claimant's relationship to the accident.

Primary Victim Rules

For a primary victim, the law is less restrictive because the defendant has already exposed the claimant to foreseeable personal injury. The operational test is:

1. The defendant owed and breached a duty of care.
2. The claimant was directly involved in the incident or within the zone of foreseeable physical danger.
3. Some personal injury was reasonably foreseeable.
4. The claimant suffered a recognised psychiatric condition caused by the incident.

Page v Smith makes the foreseeability threshold claimant-friendly for primary victims. The claimant does not need to prove that psychiatric injury was predictable as a separate kind of damage. It is enough that personal injury was reasonably foreseeable to someone in the claimant's position. Once that threshold is crossed, the defendant takes the claimant as found as to the psychiatric consequences.

The hardest application point is the zone of danger. A pedestrian actually struck by a car is straightforward. A cyclist who swerves away from a negligent van and narrowly avoids impact may also be within the danger zone if physical injury was objectively foreseeable. A person watching from a locked office across the road is not primary merely because the event was frightening.

When applying the rule, map the facts to danger rather than emotion:

Secondary Victim Controls

Secondary victim claims are restricted by control mechanisms because the claimant was not personally exposed to physical danger. Alcock v Chief Constable of South Yorkshire is the central authority. At AQA level, use it to structure the claim rather than simply naming it.

A secondary victim normally needs to show:

1. A recognised psychiatric condition.
2. A close tie of love and affection with the person endangered, injured or killed.
3. Proximity to the event in time and space, meaning presence at the accident or its immediate aftermath.
4. Direct perception of the event or immediate aftermath by sight, hearing or another unaided sense.
5. A causal connection between witnessing the qualifying accident or its immediate aftermath and the recognised psychiatric injury.
6. Reasonable foreseeability of psychiatric injury in a person of reasonable fortitude in the claimant's position.

The close tie requirement is not just "knowing the victim." Spouses, civil partners, parents and children are the clearest examples. Other relationships, such as siblings, friends, colleagues or cousins, may need evidence of actual closeness. This can feel morally harsh, but it is how the law keeps the class of possible claimants limited.

The proximity and perception requirements are separate. A claimant who hears by telephone that a relative has been injured is not directly perceiving the accident. A claimant who sees the immediate aftermath may have a stronger argument, especially where the aftermath is closely connected to the original accident. McLoughlin v O'Brian is the classic authority for immediate aftermath: the claimant saw her injured family in hospital shortly after the crash. By contrast, Alcock shows the difficulty of claims based on television images or later identification where the direct perception and proximity requirements are not satisfied.