#4665 - Psychiatric Injury - GDL Tort Law

The meaning of nervous shock/psychiatric damage

• It is the courts that decide – expert witnesses but it is the court’s decision as to what is means legally

The current position

• Distinction between PRIMARY VICTIM and SECONDARY VICTIM: introduced by Lord Oliver in Alcock v Chief Constable of South Yorkshire Police to explain previous decisions: must establish which type a claimant is before discussing whether a DOC is owed

Primary victim: someone who suffers nervous shock as a result of reasonable fear for their own physical safety – primary victim doesn’t actually suffer physical injury (this would bring negligence claim) – the primary victim is simply in reasonable fear (objective test) – primary victim is involved in the traumatic event in question

• Dulieu v White: Claimant was a pregnant barmaid – defendant negligently crashed his coach and horses through a wall in her pub. She suffered nervous shock (and later a miscarriage) because she reasonably feared that she would be harmed in the collision – entitled to recover as a primary victim

• Page v Smith – claimant involved in a car crash caused by the defendant’s negligence – whilst suffered no physical injury, the psychological effects worsened his ‘ME’ (chronic fatigue syndrome) condition so as to render him disabled – primary victim because his condition arose from reasonable fear for his own safety – condition that he had before came back

  • Shock as a catalyst for a medical reaction

  • Didn’t matter that he’d had it before – thin skull rule

Secondary victim: suffers nervous shock due to fear for someone else’s safety, usually close relative. Not in any fear for their own safety; they witness the traumatic event but are not involved

• McLoughlin v O’Brian: secondary victim because she suffered psychiatric damage as a result of concern for her family

• Alcock – all the claimants were secondary – at the football ground at the time of the disaster but none in danger themselves – nervous shock from seeing friends/relatives suffer

Problem cases – bystanders and rescuers

Courts not always consistent

• If a rescuer or bystander suffers nervous shock due to fearing his own safety then will be a primary victim

  • Chadwick: claimant succeeded in claim for nervous shock as a result of helping to rescue victims from rail crash - primary

  • Wigg v British Railways Board: train driver who tried to rescue someone trapped under a train: he was himself in danger and suffered the nervous shock due to fearing his own safety

• Contrast: White v Chief Constable of the South Yorkshire Police: police officers (C) from Hillsborough disaster – action was for Post-Traumatic Stress Disorder as a result of experiences – claimed as employees and professional rescuers : HL dismissed claim – status as employees didn’t convert them to primary victims – and professional rescuers failed as they weren’t actually in danger themselves – court considered Chadwick v BRB and applied Alcock and Page v Smith

• Considered again in Cullin v London Fire & Defence Authority: C was a fire fighter who suffered psychiatric injury after witnessing 2 colleagues trapped inside a burning building – attempt at rescuing them had failed – defendant claimed the case mirrored White but court instead followed obiter statements of Lord Goff in that case: could be argued that the claimant, in his rescue attempt, was exposed to danger or reasonably believed he could be subjected to physical injury – therefore primary victim

Position of bystanders: Unlikely to succeed

McFarlane v EE Caledonia Ltd – considered liability for nervous shock suffered by the claimant after an oil rig disaster

• Laid down guidelines:

1. Claimant must have been in actual area of danger but have escaped injury through good fortune/chance; or

2. Even if not in danger, can recover if reasonably believed that he was

3. Although not originally within the area of danger, he came into it later as a rescuer

• C in McFarlane failed because he was not actually in danger and was not actively involved in rescue – bystander

Test for Duty of Care: primary victims

Page v Smith – held that the normal Caparo principles for determining the existence of DOC are applied to primary victims – much easier to satisfy than the one for secondary victims (Alcock)

Loss must be foreseeable:

• Page v Smith – D had admitted negligent driving but had argued that psychiatric damage suffered (ME) was not foreseeable and therefore there was no DOC – HofL disagreed (if physical injury foreseeable then so is psychiatric) - no need to foresee psychiatric damage

• Once foreseeability is established to a primary victim – remaining 2 elements of Caparo – proximity and fair, just + reasonableness are quite straightforward: primary victim is always present at the traumatic event - so there is always geographical proximity and if the defendant negligently and foreseeably puts the claimant in fear of their safety then it is likely the courts will find DOC fair, just and reasonable

Nervous shock must be a medically recognised form of psychiatric illness

• Page v Smith: Barriers to prevent floodgates: need to prove that particular type of nervous shock is recoverable

• Reilly v Merseyside HA: court refused to compensate a couple trapped in a lift for over an hour – court considered their shock to be only normal human emotion: You can’t claim for anxiety, panic attacks, insomnia, palpitations

• Medical definition used to define psychiatric dam – reference made to the Diagnostic and Statistical Manual of Mental Disorders and the Glossary of Mental Disorders in the International Classification of Diseases

• Hinz v Berry (1970) – Lord Denning – ‘a recognised psychiatric illness’

• ‘a positive psychiatric illness’: McLoughlin v O’Brian and Alcock

• Must 1^st be established that the psychiatric condition giving rise to the physical conditions was a recognised psychiatric condition and that both psychiatric and physical injuries are material

  • E.g. of case where injuries not deemed to be material – Mazhar Hussain v Chief Constable of West Mercia

• Examples:

  • Depression - Hinz v Berry

  • Physical illness sustained after and due to nervous shock e.g. miscarriage: Bourhill v Young or heart attack

  • New conditions:

    • Post-traumatic stress disorder (PTDS) - Re GB, RB, and RP and ME: Page v Smith

    • Pathological grief: Grief or bereavement may be classified as pathological grief syndrome where it goes beyond what is classed as normal human emotion Vernon v Bosley

Test for DOC – secondary victims

The Alcock Criteria – controlling mechanisms

• McLoughlin v O’Brian laid down criteria by which a claim by secondary victim could be assessed – HL adopted and approved the criteria in the decision of Alcock v Chief Constable of South Yorkshire – now the leading case

1. RECOGNISED PSYCHIATRIC ILLNESS

• Same as those for primary victim

2. FORESEEABILITY OF DAMAGE

• Whereas primary victims only need to establish that psysical harm was reasonably foreseeable – secondary victims must establish that psychiatric harm specifically was reasonably foreseeable

• Bourhill v Young: Lord Macmillan observed that injury by psychiatric damage is more subtle than physical harm. Courts expect you to have ‘customary phlegm’ (Bourhil) or ‘normal fortitude’ (Brice v Brown) – but the ‘thin skull’ is applicable, so that if the kind of injury is foreseeable, its full extent is compensated (Page v Smith)

• Brice v Brown: mother and daughter – defendant negligently drove into them – mother was petrified for her daughter: neither physically harmed – mother had a massive attack of neurosis – sued – she is a secondary victim because only worried for her daughter – evidence that she had previously been neurotic for many years – but accident made it words (similar to Page v Smith) – does the thin skull rule apply again?

  • Secondary victim has to prove that it is reasonable that a person who is reasonably stoic would have reaction ( a person who puts up with normal events) – a person ‘of normal fortitude’

    • So mother was able to claim even though the degree of neurosis suffered was more than one might expect of the ordinary person

3. RELATIONSHIP BETWEEN THE CLAIMANT AND THE VICTIM

• Alcock limited the number of claimants in the area by considering relationship: the closer the relationship – the more likely a duty will exist

• Parent/child or spouse relationship McLoughlin and Hambrook v Stokes Bros

• Alcock concerned Hillsborough Disaster – claims brought by relatives of victims – Lords Ackner and Jauncey thought that recovery should be limited to those in parent/child or spouse-like relationship whereas Keith and Oliver thought it should be based on ‘close ties of love and affection’ – fiancée will be sufficiently close, as well as parents and spouses, but grandchildren, uncles aunts and siblings will, generally, not – but each one on its own case

• Class of people should not be limited to set relationships but should be one of ‘closeness’ as a matter of fact

• Work mates/fellow employees can claim (Dooley v Cammell Laird Ltd): C was a crane driver whose load of timber etc. (without any fault on his part) fell into the hold of a ship as they were being lowered – no one was actually injured, but the C knew that his fellow workers were in the hold: sued saying that the sling was either overloaded or defective: it was more due to his activity in operating the crane than his relationships of friendship which brought him into the category of persons for whom the employers owed a duty of care

• Question remains whether a secondary victim will succeed when the actual victim is a...