#14680 - Negligence Psychiatric Harm - GDL Tort Law

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Psychiatric Harm

Restrictive attitude to psychiatric harm – NB Negligence and Damages Bill in Parliament atm which proposes to get rid of shock mechanism (though poor chance of success)

Medically recognised illness

Hicks v Chief Constable of West Yorkshire

Held: distress, annoyance and inconvenience and other symptoms short of personal injury do not confer a cause of action in negligence

Nervous Shock

Alcock

Hillsborough disaster victims’ relevative claimed for damages

Held: the claimants were not primary victims so the claimed failed.

Lord Oliver established the categories of victims:

• Primary victims

• Secondary victims

• Rachel Muleron: notes difficulties in the lack of coherent definition of these two categories

• Lord Phillips CJ “no magic in this terminology”

Primary victims

Factors establishing primary victimhood:

• Direct involvement in the incident

• Someone exposed to physical danger

• Someone who reasonably believed they were involved in physical danger

A primary victim must be within the ‘zone of physical danger’

White v Chief Constable of South Yorkshire

Claims from police officers, some of whom were at the time off-duty, involved in the aftermath of the Hillsborough disaster suffering psychiatric harm. Claimed to be rescuers (who were considered primary victims).

Held: (HL) no special rules for rescuers – will only accede to primary victimhood if they were or believed that they were exposed to physical danger. There were strong reasons for uniformity with the other cases where liability was not found, however

• Lord Steyn’s policy reasons for a restrictive understanding:

  • Floodgates

  • Psychiatric evidence is complex to prove

  • Over liability of defendants

  • Unconscious disincentive to recovery

W v Essex CC

Foster parents requested that the local Council did not put any child with them that might abuse their existing child. Council put a child with them who was suspected of being abusive & abused the child. Parent claiming psychiatric harm as a result of finding out what had happened

Held: in order to accede to primary victim status, the original requirement of physical danger could be stretched as it was still developing as a category: HL found that the guilt of the parents could be enough to evidence direct involvement in the incident – if they was unwilling participation to the event

Adds the factor:

• Unwilling participation

Farrell v Avon HA

Dead baby given to father who was then informed real son was alive – claiming PTSD

Held: a primary victim despite absence of risk of physical injury

• The judge referred to “common sense” and the principle in W v Essex as to unwilling participation in justifying this

Dulieu v White

Horse drawn cart smashed through wall of pub causing the pregnant bar lady to fear for her life & then give birth to ‘an idiot’ 9 days later

Held: nervous shock resulting from a reasonable fear of physical harm

• Kennedy J: “The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury”

Page v Smith

Car crash caused claimant’s chronic fatigue syndrome to become reinstated

Held: he was a primary victim as he would reasonably have believed that he might suffer physical injury as a result of the crash. Established ‘zone of danger’ rhetoric. The type of harm didn’t need to psychiatric specifically; foresight of physical harm will extend to the reasonable foreseeability of psychiatric harm

• Lord Lloyd solidified distinctions of Lord Oliver’s categories in Alcock as establishing risk of physical injury as a prerequisite of primary victimhood

• Darryl Allen: points out that this is a mistaken summary of Lord Oliver’s dicta – he was in fact only referencing categories in the negative, by saying the present victim could not be considered a primary one. The prerequisite nature of physical injury was not established

Bomedien v Delta Display

Debris hitting house as the mechanism of nervous shock in the apprehension of physical harm

Held: successful claim

Rescuers

Chadwick v BTC

Big train crash near where claimant lived & he volunteered to help in the aftermath, suffering psychoneurosis as a result

Held: the causers of the crash would reasonably have foreseen that rescuers would come & therefore they owed a duty of care to rescuers. Where an accident is particularly horrifying & the rescuer involved in the immediate aftermath there may be a duty to rescuers.

• Waller J: emphasised the horror of the accident & not fear for personal safety as the overarching cause of psychiatric harm here – also called into question the ‘normal citizen’ guideline: some people are more inclined to stress than others

Post-Alcock: Lord Steyn distinguished this as here the rescuer put himself at risk of physical injury

• Wagner: Waller J suggested that resue is a “natural and probable” consequence of a negligent act occasioning danger and therefore the duty should extend to that class

Monk v PC Harrington

A working platform fell onto 2 men in Wembley stadium. C heard about the crash and rushed to assist. C claimed first that he was a rescuer, and then that he was unwilling participant

Held: no reasonable belief that he was in physical danger. He wasn’t an unwilling participant because there was no reasonable belief that he was party to the event.

White establishes no special class for rescuers

Secondary Victims

Factors establishing secondary victimhood:

• Indirect/spectatorial involvement (i.e. no actual/threat of physical harm & no unwilling participation)

Alcock control mechanisms:

• Reasonable foreseeability of psychiatric harm required (ordinary fortitude). This means the claimant must witness:

  • The event itself

  • Its immediate aftermath

• Close relationship of love and affection (because otherwise it would not be reasonably foreseeable, per Lord Keith)

  • Rebuttable presumptions for spouses & parents/children, but other family relations have failed

• Witness the event with their own unaided senses

• Shocking event as the cause of psychiatric injury

Immediate aftermath

Bourhill v Young

Held: seeing blood in the street could not evince a close relationship such as to give rise to liability

McLoughin v O’Brian

C’s family were in a crash caused by D. C’s neighbour told her about it and she went to see her family in hospital where they were still in a fairly posttraumatic state.

Held: this could be considered the immediate aftermath as they retained similarities to their state during the event itself

• Lord Bridge: need for case-by-case analysis – nervous shock where it appears to “the good sense of the judge, enlightened by a progressive awareness of mental illness”

Taylor

C’s mother died as a result of negligence over a protracted period. C claimed PTSD when she died in front of her

Held: the mother’s injury as a result of negligence was the event which would need to have been witnessed (or its immediate aftermath) and not her subsequent death, which was a result

• Lord Dyson: significant expansion should be done by Parliament

W v Essex (above)

Held: for secondary victims, the immediate aftermath could be not a solid amount of...