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2.3.3 Psychiatric Illness Lecture - Hands on Example

Question:
Tywin is piloting the famous BadYear blimp as it flies above central Manchester. He is distracted by his phone for a number of minutes and fails to notice that he has lost a dangerous amount of altitude. The blimp is punctured by a church steeple and bursts, crashing into a terrace of houses. This destroys a number of houses, and injures and kills a number of people. Included in this group are the following people:


Firstly, Ned is at his house when the blimp crashes into it. Whilst his house is more or less destroyed, Ned himself is luckily uninjured. However, he is left with a pathological fear that the event will reoccur. He moves into a hotel, and refuses to return to the scene of the crash for months after the incident.


Secondly, Robert is also at home when the crash occurs. He is unfortunately killed. His estranged wife, Cersei, is away on a business trip at the time, and only finds out a week later. She is nonetheless extremely upset, and her GP prescribes her time off of work and medication due to symptoms of depression which have since emerged.


Thirdly, Margaery is walking along the street when the blimp crashes, and she is crushed by the steeple of the church as it falls to the ground. Firefighters are called to the scene, including, coincidentally, Margaery’s mother, Alerie. Because of the scale of the destruction, the firefighters decide to use a small robot to begin searching the rubble for survivors, with images of the scene relayed back to the firefighters on their laptop. During this search, Alerie unexpectedly sees that her daughter has been killed in the incident, and is trapped in the rubble. She is understandably traumatised, and becomes unable to leave her house in the following weeks, and is later admitted to a psychiatric hospital.


Fourthly, Tyrion returns from the shops to find that his house has been utterly destroyed by the blimp. He is extremely upset over the next couple of days and takes to drink, but bounces back from it relatively quickly.
Discuss the claims for psychiatric injury that might arise from the above facts.


Answer:
In general, the elements of negligence are present – Tywin has a duty of care to those on the ground as reasonably foreseeable victims, he has breached this duty by becoming preoccupied with his phone and the breach can be said to have caused all of the claimant’s injuries due to the absence of intervening acts.


1) Ned appears to have a valid claim for psychiatric injury as a primary victim. He is suffering from a medically recognised condition in the form of post-traumatic stress disorder, in much the same way as the claimant in Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421 did. His illness has also been caused by a sudden event (as per Alcock) – the blimp crash. 
Regarding remoteness of injury, this is unlikely to hamper Ned’s claim. As per Page v Smith, reasonable foresight of physical harm to a primary victim is enough to establish foresight of psychiatric injury. It is unlikely that Tywin would be able to argue that physical injury from a blimp crash is unforeseeable. Thus, whilst physically uninjured, Ned’s claim will therefore stand.


2) Cersei might have a claim as a secondary victim, although the legitimacy of this claim is disputable. In order for her claim to be valid, she must show a close relationship with a primary victim, as per Alcock. Whilst there is a rebuttable presumption in place for spousal relationships in this regard, the fact that they are estranged in this case might provide an obstacle to this part of the claim. Further problems arise as a result of the fact that Cersei only found out about her husband’s death a week later. This means that she cannot be said to be either spatially or temporally close to the incident, distinguishing the events of McLoughlin v O’Brian. Finally, she cannot be said to have seen the event as it happened – she was away at the time, and so fails to meet this criterion (as per Alcock.)


That being said, she does appear to have a recognised mental health condition as a result of the crash, and this condition is caused by a sudden event. Psychiatric injury is also arguably foreseeable – a blimp crash is relatively likely to kill or maim people on the ground, and this in turn is likely to be traumatic to those who come across the aftermath. Thus, whilst Cersei’s claim is substantive due to her psychiatric injury, it may well fail because of her estranged relationship with Robert, and the time that passed between the event itself and Cersei finding out about the event.


3) Alerie may well have a valid claim as a secondary victim of the crash. She has an identifiable psychiatric injury – some form of neurosis, and this was caused by a sudden event. She is in a relationship of love and affection with a primary victim, as Margaery’s mother, is there on the scene live when her shock occurs. Whilst she does sees Margaery’s body over a live feed, this can be distinguished from Alcock – Aleria is able to identify Margaery’s body individually over the feed, and so this arguably meets the threshold for psychiatric injury as laid down in Alcock by Lord Ackner (at 921.)


4) Although there is a precedent to suggest destruction of property can be sufficiently shocking to give rise to a claim for psychiatric injury, in the form of Attia v British Gas [1988] QB 304, the fact that Tyrion does not appear to be suffering from a defined psychiatric injury is likely to vitiate his claim for psychiatric injury. His claim is therefore likely to fail (although, of course, a parallel claim for the destruction of his house will likely stand.)


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