Tort Problem Question — Negligence and Psychiatric Injury

Issue

The issue is whether Beatrice can recover damages for the psychiatric injury she sustained on witnessing the aftermath of the collision, as a secondary victim, and whether the driver owed her a duty of care in respect of that injury.

Rule

A secondary victim claiming damages for psychiatric injury must satisfy the control mechanisms established in Alcock v Chief Constable of South Yorkshire Police. The claimant must demonstrate a close tie of love and affection with the primary victim; proximity in time and space to the incident or its immediate aftermath; and that the injury was caused by direct perception through their own unaided senses rather than by being informed of it by a third party.

The recognised psychiatric illness requirement is separate and prior: distress, grief and anxiety falling short of a diagnosable condition are not actionable, as confirmed in Hinz v Berry and consistently applied since.

Application

On the first limb, Beatrice is the sister of the primary victim. Alcock did not treat sibling relationships as attracting the rebuttable presumption of close ties that applies to spouses and parents, meaning Beatrice must adduce evidence of the actual quality of the relationship. The facts state that the sisters lived together and spoke daily, which on the approach in Alcock would likely be sufficient to establish the tie as a matter of evidence.

The second limb is more difficult. Beatrice arrived approximately forty minutes after the collision. In McLoughlin v O’Brian the claimant attended some two hours later and succeeded, but on facts where the victims remained unwashed and in the same condition. The controlling question is therefore not elapsed time alone but whether what Beatrice perceived formed part of an uninterrupted sequence constituting the immediate aftermath — a question on which the facts as given are equivocal and which would turn at trial on the state of the scene on her arrival.