#17352 - Psychiatric Harm - GDL Tort Law

Complex and arbitrary modern law in relation to pure psychiatric harm.

• Jane Stapleton argues that the way to get rid of arbitrary distinctions is to ensure that no one can sue. Others argue we should make it much easier for people to be able to sue.

If a mix of physical injury and psychiatric harm then follow normal negligence procedure.

Notes in this section relate to damage and duty of care re psychiatric damage. Remember still need to prove breach, and causation.

NB courts can use term ‘nervous shock’ this has no medical meaning.

Psychiatric damage is defined medically:

• Lord Goff in White v CC S Yorkshire [1998]: “the plaintiff must have suffered psychiatric injury in the form of a recognized psychiatric illness”

  • Mere grief is not enough.

  • Chadwick v British Railway Board [1967] – depression resulting from helping victims in rail crash qualified

• Reilly v Merseyside RHA [1994] – Couple trapped in lift for over an hour. Claustrophobia and fear are not recognised.

  • Mann LJ: “The sound policy of the law is that the excitement of a normal human emotion, together with its normal physical consequence, is not compensatable.”

• Vernon v Bosley [1996] – Plaintiff suffered distress after witnessing fire fighters attempt to rescue her children from the wreckage of a car following a road traffic accident

  • Grief does qualify once it becomes pathological.

Foreseeability:

• As with a standard DoC, it must be reasonably foreseeable that the Defendant’s failure to take care would cause the type of damage suffered.

• Modern law in this area is laid out in the following case:

• Alcock v CC of South Yorkshire Police [1992] - Hillsborough case. The scenes were broadcast live on television and were also repeated on news broadcasts. 10 relatives of the deceasedbrought claims for psychiatric damage suffered.

  • All of the claims failed.

  • Lord Oliver distinguished between primary and secondary victims.

    • A primary victim one involved mediately or immediately as a participant and a secondary victim one who is no more than a passive and unwilling witness of injury to others.

  • Primary victims must demonstrate that some type of physical harm is foreseeable for claim to succeed.

  • Secondary victims will only succeed if they can prove that psychiatric harm is forseeable as well as the Alcock criteria:

    • 1.A close tie of love and affection to a primary victim (e.g. usual relation between husband and wife/parent and child)

    • 2.Proximity to the event or its immediate aftermath

    • 3. Witness the event with their own unaided senses

    • 4.The psychiatric injury must be caused by a shocking event

Primary Victims:

• One who suffers psychiatric harm after being ‘directly involved’ in an accident. Need merely demonstrate that some form of personal injury was reasonably foreseeable.

  • Page v Smith [1996] – Car crash triggered C’s ME (chronic fatigue syndrome) which had been in remission but was now made permanent. Thin skull rule applied. Awarded 162,000 in damages.

    • Held that provided some kind of personal injury was foreseeable it did not matter whether the injury was physical or psychiatric.

• People who were exposed to physical danger, or who reasonably believe that they were exposed to such danger, qualify as ‘primary’ victims.

  • Dulieu v White [1901] – Horse and cart crashed into pub causing landlady mental injury and caused her to give birth prematurely. This led to developmental problems. Held recovery could be allowed if there was grounds for reasonable fear of immediate physical injury where there is no actual impact

  • Boumedien v Delta Display [2008] - Claimant was asleep at home in his ground floor bedroom when in the middle of the night the defendant negligently drove off the road and hit the garden wall. Claimant developed psychiatric illness.

    • Held either he was a primary victim or he wasn’t a victim at all (could not have close tie of love and affection with wall).

    • Sent for retrial.

• Rescuers are not generally primary victims:

  • Chadwick v BTC [1967] – Chadwick lived 200 yards from scene of horrific train crash. Ran to scene and worked through the night to help victims. Suffered acute anxiety neurosis and could no longer work. Died of unrelated cause.

    • Estate was entitled to recover as it was reasonably foreseeable that somebody might try to rescue the passengers and suffer injury in the process.

    • Quoted Cardozo J in Wagner vInternational RailwayCompany (1921 USA): “Danger invites rescue. The cry of distress is the summons to relief.”

    • Today this case would be decided the same but for different reasons: Here he was a primary victim as he was at risk of being physically injured when he crawled into the wreckage

  • White v CC of South Yorkshire [1998] – Hillsborough case. Psychiatric injury from police officers who were on duty that day.

    • Status as rescuers does not automatically place them as primary victims. To amount to a primary victim, even a rescuer must demonstrate that they are in the zone of physical danger

  • Monk v PC Harringon [2008] – Claimant supervising instalment of platform in Webley stadium. Heard over radio that platform fell and two workers injured. Tried to argue he was directly involved as a rescuer and as he felt he was responsible for what happened.

    • Following White held that he was not directly involved merely as a rescuer. Further, it was not understandable for claimant to feel he was responsible, not reasonably foreseeable for the defendants to believe that the claimant would feel this way

• The category of primary victims is not closed: Other people may also qualify as ‘primary’ victims where they were somehow otherwise directly involved in an accident or incident.

  • W v Essex CC [2000] – Cs were foster parents with four children 8-12. Explicitly told council they did not want a child who was known/suspected of being a sexual abuser. Council gave them a 15-year-old who was suspected offender. Cs allege that the boy committed serious sexual offences against their children as a consequence they and their children suffered psychiatric injury.

    • Lord Slynn stated the law regarding psychiatric injury was still developing and the categories of primary victims are not closed.

    • It was arguable that the claimants may be primary victims based on a feeling of responsibility in unwittingly bringing the abuser in to the house. Allowed to go to trial.

Secondary Victims

• Definition:

  • ‘no more than the passive and unwilling witness of injury to another’ per Lord Oliver in Alcock.

  • ‘in the position of a spectator or bystander and not ‘directly involved in the accident’ per Lord Lloyd in Page v Smith

• 1) Close Relationship of Love and Affection

  • Spouses and parent and child generally have this relationship – everyone else must show that they had such a relationship with the victim.

  • In practice the claimant will be trained to show the closeness of relationship (bringing up memories) which make she court procedure traumatic.

    • Defendant will have to try and show that their relationship was not as close as they initially thought.

  • Question of a mere bystander recovering compensation:

    • In Alcock three of the five judges said that there might be an exception if the claimant witnessed a particularly horrific accident. E.g. A petrol tanker crashing into a school.

    • Law Commission in 1998 concluded that this is legally uncertain, yet to see anyone successfully sue on this ground.

  • McFarlane v EE Caledonia Ltd [1994] – McFarlane was working on oil rig, off duty, sleeping on nearby ship, when oil rig fire started.

    • Ship couldn’t get to Oil Rig as flames were so intense. Claimant said he could see people running around on fire. Knew his friends were dead or at serious risk of being dead.

    • Stuart-Smith LJ accepted this was particularly horrific and might be an exception but as a matter of policy (subjectivity of horrific events) declined to make this an excpetion.

  • Bourhill v Young [1942] – old case would be decided the same today. A motorcyclist negligently crashed and killed himself on one side of the tram. The claimant had just got off on the other side of the tram, suffered premature birth. Court held this is not reasonably foreseeable.

• 2. Proximity Shocking Event or its Aftermath

  • McLoughlin v O’Brian [1982] – C’s husband and three children were involved in serious accident. C told of this two hours later. Saw her husband and children before treatment seriously injured and one child dead.

    • HoL overtuned CA extended class of victims to those who come within the immediate aftermath of the event. Immediate aftermath as family hadn’t been treated yet: as if she saw them straight after the crash.

    • This seems to draw an arbitrary distinction between claimants. Encourages literal ambulance chasing.

  • Galli-Atkinson v Seghal [2013] – C’s...