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Page v Smith question

Hey all,

As per Page v Smith, for a primary victim to recover damage for psychiatric injury, it is sufficient if there was a foreseeable risk of "personal" injury. In that case, psychiatric injury was not foreseeable, but physical injury was. Throughout the case everyone talks of foreseeability of personal/physical injury.

However, what about cases where only psychiatric injury is foreseeable and physical injury is not? Does Page v Smith cover such instances too? (common sense dictates it should, but is there any authority for this?)

Thanks!
Reply 1
Avatar for jjarvis
jjarvis
14
The primary/secondary victim issue will apply where there's witnesses to an accident or participants in a shocking event who suffer psychiatric harm. It doesn't apply to every case of psychiatric harm. (Or, perhaps to put it better, in many cases the victim will be a primary victim and there won't be a secondary victim.) Thus, if only psychiatric injury is foreseeable and there's no risk of physical injury, the relevant question is whether a duty of care is owed with respect to psychiatric harm. In Butchard v Home Office and Barber v Somerset County Council the defendant owed the plaintiff a duty of care with regard to psychiatric harm, in part because psychiatric harm was reasonably foreseeable, and there was sufficient proximity between the parties. In W v Essex CC the House of Lords refused to strike out a claim for psychiatric harm made by the parents of children who suffered sexual abuse at the hands of their foster child. The foster child had been assigned to their house in spite of their express request not to foster a child with a history of committing acts of sexual abuse and the fact that the foster child *had* committed such acts. Note in these cases the pre-existing relationship or express request. But Page v Smith isn't a directly relevant for cases where the only harm is psychiatric and there's no risk of physical injury, as on its facts it's rather different.
(edited 13 years ago)
Reply 2
Avatar for vira
vira
OP
1
Thank you.

I understand that for a secondary victim's claim to succeed it requires proximity of space, time and relationship, foreseeability of psychiatric harm and must have satisfied the test of customary phlegm.

The instance I am thinking of is purely one of primary victim and the harm that is foreseeable is only psychiatric harm. For example when A pretends to be abusing B (say behind glass doors) which might result in psychiatric harm to a by-stander, C. B is not injured and C is not in any foreseeable risk of physical injury himself. Also, C is not related to B.

Not considering intentional torts (i.e. excluding wilkinson v downton and harassment claims), can there be a successful claim in tort of negligence?
(edited 13 years ago)
Reply 3
Avatar for jjarvis
jjarvis
14
Original post by vira
Thank you.

I understand that for a secondary victim's claim to succeed it requires proximity of space, time and relationship, foreseeability of psychiatric harm and must have satisfied the test of customary phlegm.

The instance I am thinking of is purely one of primary victim and the harm that is foreseeable is only psychiatric harm. For example when A pretends to be abusing B (say behind glass doors) which might result in psychiatric harm to a by-stander, C. B is not injured and C is not in any foreseeable risk of physical injury himself. Also, C is not related to B.

Not considering intentional torts (i.e. excluding wilkinson v downton and harassment claims), can there be a successful claim in tort of negligence?


Tough to see how there could be outside the intentional torts. What's the relevant duty of care? How is it breached? That sounds a fairly clear Wilkinson v Downton situation, not a negligence case.
Reply 4
Avatar for jjarvis
jjarvis
14
gethsemane
You're better at tort than I, any thoughts?

Cheers!
Original post by vira
Hey all,

As per Page v Smith, for a primary victim to recover damage for psychiatric injury, it is sufficient if there was a foreseeable risk of "personal" injury. In that case, psychiatric injury was not foreseeable, but physical injury was. Throughout the case everyone talks of foreseeability of personal/physical injury.

However, what about cases where only psychiatric injury is foreseeable and physical injury is not? Does Page v Smith cover such instances too? (common sense dictates it should, but is there any authority for this?)

Thanks!


Personal injury is either physical or psychiatric harm. It therefore follows that if psychiatric harm is forseeable, it must be covered by Page v Smith. A good example is Walker v Northumberland CC [1995] where a teacher takes sick leave due to nevous breakdown. He comes back, expecting support and gets none. He suffers a worse breakdown as a result. It's forseeable that psychiatric harm would result here from a breach of the duty of care (i.e. not giving support) but not that there would be physical harm as such.
Reply 6
Avatar for vira
vira
OP
1
Original post by gethsemane342
Personal injury is either physical or psychiatric harm. It therefore follows that if psychiatric harm is forseeable, it must be covered by Page v Smith. A good example is Walker v Northumberland CC [1995] where a teacher takes sick leave due to nevous breakdown. He comes back, expecting support and gets none. He suffers a worse breakdown as a result. It's forseeable that psychiatric harm would result here from a breach of the duty of care (i.e. not giving support) but not that there would be physical harm as such.


Thanks! Thats exactly the clarification I was looking for.

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