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Duty of care (including psychiatric harm and economic loss) — SQE1 Tort question

A worked single-best-answer question on duty of care (including psychiatric harm and economic loss), with why each wrong option is wrong — the way SQE1 traps candidates.

Duty of care (including psychiatric harm and economic loss)

Leon was driving carefully when his car was struck at moderate speed by a van driven negligently by Shona. Leon was not physically injured, but the collision was violent enough that he could easily have been hurt. Within weeks he developed a recognised psychiatric illness triggered by the crash. Shona's insurers argue that a person of ordinary fortitude would not have suffered psychiatric harm from such a collision.

Which of the following best describes Shona's liability for Leon's psychiatric illness?

  1. AShe is not liable, because Leon suffered no physical injury.
  2. BShe is not liable, because psychiatric injury to a person of ordinary fortitude was not reasonably foreseeable.
  3. CShe is liable only if Leon satisfies the requirements for secondary victims.
  4. DShe is liable, because Leon is a primary victim within the range of foreseeable physical injury, and it is enough that some personal injury was foreseeable.
  5. EShe is liable only for the portion of the illness that a person of ordinary fortitude would have suffered.
Show answer and reasoning
D is the best answer. Under Page v Smith, a claimant who is a primary victim, being within the range of foreseeable physical injury, can recover for psychiatric injury caused by the defendant's negligence even if no physical injury occurs. Physical and psychiatric injury are treated as one kind of personal injury, so it does not matter that psychiatric harm in a person of ordinary fortitude was not foreseeable. The eggshell skull rule also applies.

Rule: A primary victim within the range of foreseeable physical injury may recover for psychiatric injury even where no physical injury occurs and psychiatric harm itself was not foreseeable.

  • A Physical injury is not a precondition for a primary victim's psychiatric injury claim. (wrong rule)
  • B The ordinary fortitude test applies to secondary victims; for primary victims it is enough that personal injury of some kind was foreseeable. (wrong rule)
  • C Leon was a participant within the zone of physical danger, so the secondary victim controls do not apply. (right rule, wrong facts)
  • E The defendant takes the primary victim as found and is liable for the full extent of the recognised illness. (wrong rule)

Source: Page v Smith [1996] AC 155

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