#16155 - Negligence Psychiatric Injuries - Tort Law

NEGLIGENCE: THE DUTY OF CARE IN PARTICULAR CIRCUMSTANCES

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A. Psychiatric Injuries

McBride & B (4^th), pp. 140-162

• A injures B physically, as a result, B also suffers psychiatric injury. A is liable to B for psychiatric injury, no matter how unforeseeable, as long as physical injury is foreseeable (Simmons v British Steel)

• A almost injures B physically B suffers psychiatric injury. A liable to B for psychiatric injury; no need to show it was foreseeable (Page v Smith)

  • If B gets psychiatric injury not resulting from the risk of physical injury, then not so clear that there would be a claim

• Third party suffering psychiatric injury. More troublesome because difficult to establish reasonable foreseeability that third party would suffer some kind of physical injury.

  • Requirements:

    • Reasonably foreseeable that A’s action would result in third party developing psychiatric disorder

      • “close and loving relationship” or

        • + witness accident/immediate aftermath

        • Alcock v Chief Constable of South Yorkshire

      • Helping to assist injured party in the aftermath and this experience made it reasonably foreseeable or

        • + thought was in danger

      • Felt wrongly but reasonably responsible for what happened to injured party making it reasonably foreseeable or

        • + present at scene of accident

      • Saw what happened to injured party making it reasonably foreseeable

        • + a bystander would reasonably develop psychiatric injuries

• Rescue

  • Frost v Chief Constable of South Yorkshire – no duty of care unless rescuers risked physical injury (subsequent to Chadwick)

  • Chadwick v British Transport Commission – a duty of care may exist

• Bystanders

  • McLoughlin v O’Brian – denies liability in all cases

  • Alcock – recognizes in the right type of case there may be liability

    • But this was read wrong in McFarlane and Frost, interpreted to mean that such a case would never give rise to a duty

• Self-harm

  • Greatorex v Greatorex – Father sues son for crashing his own car and injuring himself, causing the father to suffer psychiatric injuries. Ruled that there was no duty of care because 1) it would limit his “right of self-determination” (author disagrees with this – if it had been deliberate, then maybe, but the son didn’t deliberately crash) and 2) it might open up undesirable litigation within the family (also disagrees – if father had suffered physical injuries, he would be able to sue and this produces the same family litigation)

• Bad news

  • Alcock – merely hearing about something isn’t enough to establish liability, but this is when suing someone who caused the accident

  • For liability, it must be shown that what D said caused the psychiatric injuries, not what actually happened:

    • Insensitive way of revealing news

    • Misinformed news (telling C that daughter died while she didn’t)

• Stress at work

  • Walker v Northumberland County Council – if it is reasonably foreseeable that making an employee do a certain kind of work would cause a psychological disorder, then there is a duty of care (but in this case C had a breakdown and then had to go back to same kind of work and had a second breakdown, so the second breakdown was foreseeable – courts have been reluctant to find foreseeability)

  • Hatton v Sutherland – difficult to show foreseeability when being made to do stressful work without assistance

  • Barber v Somerset County Council – suggests that even if it is reasonably foreseeable court may still not find duty. Something more (in this case seeing each employee separately and noticing something wrong) is needed.

McLoughlin v O'Brian [1983] 1 AC 410

In claims for third party suffering psychiatric injury as a result of a physical injury, a three-stage test is used. 1) Relationship with person injured, 2) proximity to the accident in time and place and 3) receiving news by “sight or hearing”.

Facts: C, mother whose husband and children suffered grave injuries at an accident and who was informed of the accident two hours later, sued D whose negligence caused the accident for psychological injuries suffered. First instance ruled that this injury was unforeseeable, and while CoA ruled that the loss was foreseeable it held that there was no duty of care because C wasn’t present at the scene and didn’t know of its consequences until two hours later. Holding otherwise would over-extend liability.

Lord Wilberforce:

• In assessing whether damages are available for “shock” at witnessing injuries, it depends on the relationship to parties injured (parents covered, but not ordinary bystander as D cannot be expected to compensate the world), nature and seriousness of accident, proximity to accident etc.

• Three stage test for secondary victims:

  • Relationship with people injured

  • Proximity: time and place must be considered, though “immediate sight or hearing” is not required

  • Communication: no compensation for grief caused by communication by third party (direct witness necessary) because causation by D must be established (Shock must come through “sight or hearing of the event or of its immediate aftermath”)

• This case satisfies test (proximity satisfied by witnessing immediate aftermath, and communication by sight and hearing of immediate aftermath)

Lord Bridge:

• No reason why extending liability to foreseeable psychiatric injury would be burdening D out of proportion

• Law shouldn’t freeze in a rigid shape

Alcock v Chief Constable of S Yorks. [1992] 1 AC 310, HL;

Develops three-stage test.

Facts: Police negligence in policing a crowd caused over 90 deaths. Family members sued. All claims rejected because 1) some didn’t satisfy “close and loving relationship”, 2) those that did didn’t suffer because of witnessing their loved ones but imagining them since they only saw them much later

Lord Ackner:

• Lord Wilberforce’s generalization that family members are covered by bystanders aren’t is rebuttable

  • A stranger may not be covered, but may well suffer psychiatric injury where an oil tanker crashes into a school in session and bursts into flames

  • Friends may be further than family, but there are ties so intimate that they should be covered

• Proximity: Alcock identified his family member some eight hours after the accident, so it cannot be described as the “immediate aftermath” of the accident

• Communication: Family members could be expected to watch broadcasts on television, and D could be expected to know that. But they could also be expected to know that television would not broadcast images of recognizable people suffering (where it would be a novus actus interveniens) and so shock induced by the broadcast would not have fit into the category of communication sufficient to found liability (though TV broadcast cannot in all cases rule out a claim as equivalent to actual sight or hearing).

Page v Smith [1996] AC 155, HL

If it is reasonably foreseeable that B would suffer physical injury from A’s action, and B doesn’t but suffers psychiatric injuries, A is liable to B for psychiatric injuries, no matter how unforeseeable.

Facts: D carelessly crashed into C’s car while C was in it, and though it was reasonably foreseeable that C would be physically injured, he wasn’t but suffered psychiatric injury.

Held: D liable to C for psychiatric injuries, even if they are not foreseeable, as long as physical injury was foreseeable.

White (or Frost) v Chief Constable of the South Yorkshire Police [1999] 2 AC 455, HL

An employer doesn’t owe a duty of care to employees to avoid psychiatric harm where employee would be a secondary victim; rescuers not exposed to risk of physical harm is a secondary victim and has to satisfy the Alcock test.

Facts: Police officers brought claims against their employers for psychiatric injury suffered in their involvement in the incident.

Held (HL): An employer’s duty to an employee doesn’t extend to avoiding psychiatric harm where employee would be a secondary victim (Alcock test applies and not satisfied because no family relations). A rescuer not exposed to risk of physical injury was a secondary victim and had to satisfy the Alcock criteria.

Lord Hoffmann:

• An employee should not be by virtue of their contract treated any differently than everyone else: why should policemen get special treatment and not ambulance men or first aid workers?

• Another argument was that the policemen were rescuers and were thus following Chadwick exempt from the Alcock controls. This is not true because in Chadwick...