Chapter 8: Psychiatric Harm

Question 1

1 Introduction

Answer 1

Please note that a claim for psychiatric harm is not a separate tort! The tort is still negligence; the
loss is psychiatric harm. Once a duty of care is established the claimant must go on to prove the
other elements of negligence to succeed ie breach, causation, remoteness and lack of defences.

Question 2

Policy reasons behind the limitations placed on the recovery of pure psychiatric harm: Floodgates:

Answer 2

A significant increase in the class of claimants who could recover. When you read the facts of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, consider the potential number of psychiatric claims if there were no constraints on duty (those in the stand, at the match, watching on TV, listening on the radio, coming to the aftermath).

Question 3

Crushing liability

Answer 3

Imposing damages out of all proportion to the negligent conduct. For example, consider the liability of a negligent driver if anyone who witnessed the accident could claim for psychiatric harm caused.

Question 4

Fraudulent claims

Answer 4

Historically the courts have been wary of psychiatric harm as there is a
perception that such harm is easier to ‘fake’ than physical injury (linked to diagnostic uncertainty). The courts worry about claimants making fraudulent or exaggerated claims
(due to diagnostic uncertainty) which could not be adequately checked or controlled.

Question 5

Effect of increased availability of compensation on potential claimants,

Answer 5

For example, a
disincentive to rehabilitation.

Question 6

Psychiatric harm

Answer 6

In this context, psychiatric harm is a form of psychiatric illness that the
claimant has suffered as a result of the perception of traumatic events. The phrase ‘nervous
shock’ (old terminology) is a commonly used label to describe these cases. The psychiatric
harm must be either:
(a) A medically recognised psychiatric illness; or
(b) A shock-induced physical condition (such as a heart attack).

Question 7

1.1 Primary and secondary victims distinction

Answer 7

This distinction is crucial because the courts apply different tests for establishing whether a duty of care is owed depending on whether the claimant is a primary victim or a secondary victim. It is important to note that there may also be an actual victim ie a person who has
suffered physical harm only or physical harm and psychiatric harm.

Question 8

Primary Victim

Answer 8

A primary victim is someone who suffers psychiatric harm as a result of
reasonable fear for their own physical safety (objective test). They are involved in the traumatic event and are therefore in the area of danger (the danger zone).

Note that the primary victim does not suffer physical injury. If they do, then they are an actual victim and would bring an ordinary negligence action for their personal injury, including their consequential psychiatric injury which would be recoverable.

Question 9

Key case: Dulieu v White [1901] 2 KB 669

Answer 9

The claimant was a pregnant barmaid when the defendant negligently crashed his coach and
horses through a wall in her pub. She suffered severe shock leading to her child being born with a cognitive impairment. She was a primary victim as she had reasonably feared for her own physical safety.

Question 10

Key case: Page v Smith [1996] 1 AC 155

Answer 10

The claimant was involved in a car crash caused by the defendant’s negligence. The claimant
suffered no physical injury, but the crash worsened his ME (Myalgic Encephalopathy) so as to
render him permanently disabled. He was a primary victim because his condition arose from
reasonable fear for his own physical safety.

Question 11

Secondary Victim

Answer 11

A secondary victim suffers psychiatric harm due to fear for someone else’s
safety, normally a close relative. They are not in reasonable fear for their own physical safety. They witness the traumatic event (or its immediate aftermath), and suffer psychiatric harm as a result, but are not involved in the event/in the area of danger.

Question 12

Key case: Alcock v Chief Constable of South Yorkshire [1992] AC 310 HL

Answer 12

All claimants in this claim were secondary victims. Some of the claimants were at the football
ground at the time of the disaster, but none were in danger or reasonably feared for their own
safety. They suffered psychiatric harm as a result of witnessing their relatives/friends in danger.
Other claimants were not at the grounds at the time but suffered psychiatric harm after finding
out about the disaster and rushing to the ground and, in some cases, having to identify the dead
bodies of their relatives.

Question 13

Example

Answer 13

Neither bystanders nor rescuers are given any special status in this area of law. As with any other claimant they must be classified as either a primary or secondary victim. If a rescuer or bystander suffers psychiatric harm as a result of reasonably fearing for their own physical safety, then they will be a primary victim.

Question 14

Cullin v London Fire & Civil Defence Authority [1999] PIQRP 314

Answer 14

The claimant fire fighter
suffered psychiatric injury after witnessing two colleagues trapped inside a burning building. In
his rescue attempt, he was exposed to danger or reasonably believed he could be subjected to physical injury and was therefore a primary victim.

Question 15

White v Chief Constable of the South Yorkshire Police [1999] 1 All
ER 1.

Answer 15

The claimants were police officers on duty during the Hillsborough football stadium disaster. They assisted in removing the dead bodies and carrying the injured to safety as well as trying to resuscitate spectators. Their action was for post-traumatic stress disorder. Their status as employees

Question 16

Status as employees & professional rescuers

Answer 16

Did not convert them from secondary to primary victims (it is
easier to establish a duty if you are a primary victim). They were secondary victims as they had not been exposed to danger, so the ordinary criteria for establishing a duty in respect of secondary victims applied.

Question 17

Key case: McFarlane v EE Caledonia Ltd [1994] 2 All ER 1

Objective Test & Not Subjective

Answer 17

The Court of Appeal considered liability for psychiatric harm (PTSD) suffered by the claimant
after an oil rig disaster (Piper Alpha). During the disaster, the claimant was aboard a rescue vessel which remained in the area, but at a safe distance, collecting other survivors. The court rejected the claimant’s claim as a primary victim for psychiatric harm, because they did not feel that the claimant was in fact in reasonable fear for his physical safety at the time

The Court of Appeal also rejected his claim as a rescuer, stating that recovery was limited to those actively involved in the rescue, not mere bystanders. He was thus treated as a secondary victim and his claim failed as he was unable to establish the more stringent requirements for a successful claim as a secondary victim.

Question 18

1.2 Summary

Answer 18

• Psychiatric harm is a type of loss, not a tort.
• Where the claimant’s loss is pure psychiatric harm, the courts might adopt a different approach to establishing a duty of care.
• In this area of law, the courts classify claimants into one of three types of victim: actual, primary or secondary.
• An actual victim is a person who has suffered physical harm only or physical harm and psychiatric harm.
• A primary victim is in the danger zone and suffers psychiatric harm as a result of reasonable fear for their own physical safety.
• A secondary victim suffers psychiatric harm due to fear for someone else’s safety. They
  witness the event or immediate aftermath but are not in the danger zone.
• Bystanders and rescuers are not given any special status in this area of law. They are classified as actual, primary or secondary victims in the ordinary way

Question 19

2. Primary victims

Answer 19

2.1 Primary victims: The test for duty of care is that psychiatric harm is recognized in law in the form of depression or other diagnosable mental health conditions

In Page v Smith [1996] 1 AC 155 it was held that in order to determine whether a primary victim is
owed a duty of care, the defendant must reasonably have foreseen that the claimant might suffer physical injury as a result of their negligence. If physical injury was reasonably foreseeable, the normal principles for determining the existence of a duty of care would then apply. This test for establishing a duty of care is a much easier test to satisfy than the test for
establishing a duty of care to secondary victims (the Alcock criteria as discussed later). The first step, however, is to ensure the psychiatric harm suffered is recognised in law.

Question 20

2.1.1 Psychiatric harm must be medically recognised

Answer 20

Only stress or grief does not necessarily count

In all claims of pure psychiatric harm a key criterion for recovery is that the claimant has suffered a medically recognised psychiatric illness; or a shock-induced physical condition. Courts will refer to medical manuals etc, medical history/notes, expert evidence and precedent. Liability will not arise for fear, distress or mental grief caused by negligence

Question 21

Key case: Hinz v Berry [1970] 2 QB 40

Answer 21

A family stopped to have lunch when a car crashed into the field and killed the claimant’s husband and injured her children. The claimant claimed damages for: (1) grief and sorrow; (2)
worry about her children and how they would cope with losing their father; (3) financial strain as a widow; and (4) depression caused by the shock of witnessing the accident.

Question 22

Damages only for depression

Answer 22

The court only allowed damages in relation to the depression as this was the only part of the
claim which related to the shock of seeing the horrific event. Grief, sorrow and worry were not
medically recognised psychiatric illnesses.

Question 23

Example

Answer 23

In Mazhar Hussain v Chief Constable of West Mercia [2008] EWCA Civ 1205, the claimant suffered from anxiety and stress which he argued caused numbness in his left arm and leg. The court held that the stress and anxiety were not themselves (in the form he suffered them) medically recognised psychiatric illnesses, and the physical symptoms were not material damage. It is important to note that in this case the claimant was held not to have diagnosable anxiety but he did experience significant anxiety symptoms at stressful times. In cases where a claimant is suffering from medically diagnosed anxiety this will, in all likelihood, be considered a recognised psychiatric condition.

Question 24

New psychiatric conditions being recognised

Answer 24

New conditions are constantly being recognised like post-traumatic stress disorder, ME (Myalgic Encephalomyelitis) and pathological grief syndrome which goes beyond what is classed as normal human emotion.

Question 25

2.1.2 Physical harm must be reasonably foreseeable

Key case: Page v Smith [1996] 1 AC 155

Answer 25

In Page v Smith [1996] 1 AC 155 the defendant admitted negligent driving but argued that the psychiatric damage suffered (ME) was not foreseeable and therefore no duty of care was owed.
The House of Lords disagreed. They held that in the case of primary victims if physical injury is foreseeable to the claimant (which it was due to the collision) then that would be sufficient to enable the claimant to recover damages for psychiatric harm even though he had not actually
been physically hurt. There was no need to foresee psychiatric damage as well.

Question 26

2.1.3 Proximity and fair, just and reasonable

Answer 26

If physical injury is held to be reasonably foreseeable, the courts will apply the normal principles for determining the existence of a duty of care. As the primary victim is always
present at the traumatic event, there is always geographical proximity between the claimant and defendant

Question 27

2.2 Summary

Answer 27

• In order to be recoverable, the psychiatric harm suffered by the claimant must be medically recognised or a shock-induced physical condition.
• In order to establish whether a primary victim is owed a duty of care, the courts will first
  consider whether physical injury was reasonably foreseeable as a result of the defendant’s negligence.
• If physical injury was reasonably foreseeable, the courts will apply the normal principles for determining duty of care.
• If physical injury was not reasonably foreseeable, no duty of care will be owed unless the claimant can satisfy the criteria for a secondary victim (see below).
• If a duty of care is established, the courts will go on to consider the rest of the general
  negligence claim ie breach, causation, remoteness and defences.

Question 28

3. Secondary victims

Answer 28

Negligent use of fireworks at a fireworks display causes a huge explosion. Ten people are severely injured. There are 100 people at the event who witnessed the 10 people get injured. The event was being broadcast live on television.

The relatives of those injured rushed to the hospital where the injured were being treated and saw them in considerable pain and covered in burns. The
witnesses, those watching on television and the relatives suffered psychiatric harm.
Who is owed a duty of care by the person who negligently caused the explosion?

Question 29

3.1 Secondary victims: The test for duty of care

Answer 29

As with primary victims, it must first be established that the psychiatric harm complained of is medically recognised or a shock-induced physical condition.

Question 30

Key case: Alcock v Chief Constable of South Yorkshire [1991] 4 All ER 907

Answer 30

This case concerned the 1989 Hillsborough stadium disaster in which, as a result of the negligence of the police, 96 people were crushed to death and over 400 physically injured. Thousands of people watched the tragedy on live television, listened to it on the radio and/or saw later press coverage. The potential number of psychiatric claims was huge.

Claims were brought by various relatives and friends of the victims of the disaster who were either present at the football ground or witnessed events on television or heard about it on the radio. None of the claimants had been
within the foreseeable range of physical injury and as such could not claim as primary victims. Instead, they argued that they had suffered psychiatric harm as a result of what they saw happen to and/or feared had happened to their friend/relative. They were secondary victims.

No duty of care was owed to any of the claimants as they lacked proximity of relationship and/or proximity in time and space.

Question 31

Current test for determining when a duty of care is owed to a secondary victim

Answer 31

Alcock criteria:
(a) Psychiatric harm must be reasonably foreseeable;
(b) Proximity of relationship between the claimant and ‘the victim’;
(c) Proximity in time and space; and
(d) The injury must be the result of sudden shock.

Question 32

3.1.1 Psychiatric harm must be reasonably foreseeable

Answer 32

For the secondary victim to prove duty of care, they must establish that psychiatric harm was reasonably foreseeable in a person of ordinary fortitude in the same circumstances. Contrast this with the criteria necessary for a primary victim in which only physical injury must be foreseeable.

Question 33

Key case: Bourhill v Young [1943] AC 92

Answer 33

In Bourhill v Young [1943] AC 92 the defendant motorcyclist crashed and killed himself by his own negligence. The claimant, who was pregnant, did not see the crash but heard it and later saw some blood on the road. She suffered from a shock-induced still birth. It was held that no duty of care was owed to the claimant. Whilst it was foreseeable that the defendant might physically
harm other road users with his negligent driving, it was not foreseeable that someone in the claimant’s position of normal fortitude would suffer psychiatric harm.

Question 34

Thin Skull Rule for Psychiatric Harm

Answer 34

However, that once it is established that a person of normal fortitude might have suffered psychiatric illness, the normal ‘thin skull’ rule (meaning you take your victim as you find them) is applicable, so that if psychiatric harm is foreseeable, the claimant can recover damages for all psychiatric harm they suffer, even if they have suffered to a greater extent than could have been foreseen because of a predisposition to mental illness (Brice v Brown [1984] 1 All ER 997). This is relevant to remoteness in general negligence.

Question 35

3.1.2 Proximity of relationship between the claimant and ‘the victim’

Answer 35

The second requirement is that the secondary victim must have a relationship of close ties of love and affection with ‘the victim’ ie the person for whose safety the claimant feared because of the defendant’s negligence. Close ties of love and affection are rebuttably presumed in the case of parent/child, married couples and engaged couples. This presumption is rebuttable so the defendant can try and prove that there are, in fact, no close ties of love and affection, for example, between a married couple.

Those claimants that fall outside of the rebuttable presumption categories, can try and prove close ties of love and affection with the victim. However, to date, no claimant outside of the rebuttable presumption categories has successfully argued this.

Question 36

Key case: McLoughlin v O’Brian [1982] 2 All ER 298

Answer 36

In McLoughlin v O’Brian [1982] 2 All ER 298, the claimant suffered psychiatric harm after
witnessing the ‘immediate aftermath’ of a car accident which killed her daughter and injured her husband and three children. The claimant arrived at the hospital two hours after the accident and witnessed the distressing sight of her husband and children visibly upset, bruised and covered in
grime and dirt from the accident.

Question 37

Victim is a stranger

Answer 37

The courts have generally taken the view that the
claimant must possess the ‘customary phlegm’ of the reasonable person and be able to withstand witnessing accidents to strangers, with whom they have no tie of love and affection. However,
there may be some extreme occasions when a stranger may be able to claim, if the accident was particularly horrific

Question 38

Greatorex v Greatorex [2000] 1 WLR 1790,

Answer 38

A secondary victim will not be
able to claim if the actual victim for whose safety they feared, is actually the defendant in the
case. In Greatorex the defendant injured himself in a road accident due to his own negligence. It was held that he did not owe a duty of care to the claimant fire officer (his father) who arrived at
the scene and subsequently suffered psychiatric damage on seeing the injuries to his son.

Question 39

3.1.3 Proximity of the claimant to the accident in time and space

Answer 39

The secondary victim must be present at the scene of the accident or its immediate aftermath; and the claimant must see or hear the accident, or its immediate aftermath, with their own senses. So, the secondary victim must be more or less in the immediate vicinity of the accident or have witnessed the aftermath shortly after.

Question 40

McLoughlin

Answer 40

The mother arrived at the hospital two hours after the accident and saw her family in the same condition as they had been at the scene of the accident, visibly upset, bruised and covered in grime and dirt from the accident. It was therefore held that she had
perceived the immediate aftermath of the accident and her claim for psychiatric harm was successful.

Question 41

Told about incident

Answer 41

Alcock made it clear that there would be no duty owed to a secondary victim who is merely told about a shocking event (including via a newspaper or television). The shock must be caused by the claimant seeing or hearing the event or its immediate aftermath. The court held that although
television images could give rise to feelings of deepest anxiety and distress, they cannot equate to the sight or hearing of an event or its immediate aftermath, in part because individuals are not
identifiable

Question 42

Broadcasting Images of Identifiable Individuals

Answer 42

If broadcasters transmitted images of identifiable individuals, this could amount to a novus actus interveniens, and break the chain of causation between the defendant’s negligence
and claimant’s loss. However, in Alcock, the possibility was left open for claims involving live television broadcasts where it was clear the victims had died, for example, if a hot-air balloon carrying children were to explode on television and this was being watched on the television by
the children’s parents.

Question 43

3.1.4 The injury must be the result of sudden shock

Answer 43

The final criteria to satisfy is that the injury (the psychiatric harm) must be shock-induced. In addition to witnessing the events through their own unaided senses, the claimant’s psychiatric harm must also be ‘a reaction to the immediate and horrifying impact’ of the event and ‘a sudden assault on the nervous system’ (Alcock), rather than a gradual realisation of what has happened. This is best illustrated by comparing the following two cases.

Question 44

Key case: North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792

Answer 44

In North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 the claimant suffered psychiatric illness after negligent medical treatment led to the death of her 10-month-old baby. The Court of Appeal held that although the events leading to the claimant’s psychiatric condition took place
over 36 hours, the series of events leading to the death could together constitute a ‘horrifying event’, including witnessing the medical negligence. They also confirmed the trial judge’s ruling that the claimant’s appreciation of events was ‘sudden’ because each separate event had an immediate impact. The claimant had suffered from drawn-out and ‘seamless’ shock.

Question 45

Key case: Sion v Hampstead Health Authority (1994) 5 Med LR 170

Answer 45

In contrast, in Sion v Hampstead Health Authority (1994) 5 Med LR 170 the claimant failed in similar circumstances. The breach of duty was also medical negligence but the distinguishing feature in Sion was that the psychiatric condition developed after the claimant (the father) saw the victim (the claimant’s son) in intensive care over a longer period (two weeks) and gradually came to the realisation that medical negligence had caused the injuries. Unlike in North
Glamorgan this was not a sudden reaction to a horrifying event. A psychiatric illness caused not by a sudden shock but by an accumulation of more gradual assaults on the nervous system over a period of time is not enough.

Question 46

3.1.5 Fair, just and reasonable

Answer 46

In addition to the Alcock criteria, as an overarching consideration, the court will always take into account whether it is fair, just and reasonable for a duty to be imposed (ie policy considerations such as floodgates, crushing liability, the risk of fraudulent claims and evidential difficulties).

Question 47

3.2 Summary

Answer 47

• In order to be recoverable, the psychiatric harm suffered by the claimant must be medically
  recognised or a shock-induced physical condition.
• In claims brought by secondary victims, policy requires further control mechanisms to the
  usual principles for duty of care, to limit the number of potential claimants. These control
  mechanisms are known as the Alcock criteria.
• In order to establish whether a secondary victim is owed a duty of care, the courts will
  therefore apply the Alcock criteria:
• Was psychiatric harm reasonably foreseeable in a person of ordinary fortitude?
• Was there proximity of relationship between the claimant and victim?
• Was there proximity in time and space to the accident or its immediate aftermath?
• Was the psychiatric harm shock-induced?