Negligence- psychiatric injury Flashcards
(24 cards)
Theory of law on psychiatric injury:
The victim has to show if they are a primary victim or secondary, and the other key elements of negligence
A lot for the claimant to prove
prevents the floodgates opening for these types of claims
White v Chief Constable
Alcock v Chief constable
Hillsborough Football stadium
if there were no restrictions, the number of cases would have been huge (players, support staff, stewards, tv spectators etc)
Cost would have fallen on the state
Real victim not getting a pay out? Morally indefensible
What is psychiatric injury?
A severe long term mental injury which is more than shock or grief, nervous shock
What is a primary victim and what is a secondary victim?
Primary- someone who is directly injured in the event
may suffer physical or psychiatric
required to prove the D was negligent
Can claim for both physical and psychiatric
Secondary- someone who is harmed when they witness an event, likely to be mental
not involved in the accident
suffered mental injury as a result
need to prove negligence
Alcock criteria
Reasonable person
Public policy within psychiatric injury
decided by the judges, judicial precedent
most claims will be for pure economic loss due to inability to work
developed public policy to restrict claims
especially for secondary victims
have to prove negligence
What do secondary victims need to prove to be successful?
There was an accident or sudden event where someone was negligent
which caused the injury
Some form of mental
injury
The claimant passes
Alcock criteria
Reasonable man test
What is a mental injury?
an injury that is more than mere shock or grief, must be medical evidence, long term.
examples:
- PTSD
- reactive depression
- Acute anxiety
Must come from a sudden event
Dulieu v White
LP: a claim can be made if the victims fear for their own safety
The claimant was pregnant and behind the bar in her husband’s public house. A horse and cart crashed into the pub. The claimant was not physically injured but feared for her safety and suffered shock. She gave birth prematurely nine days later and the child suffered developmental problems.
Held:
An action could lie in negligence for nervous shock arising from a reasonable fear for one’s own immediate safety
Hambrook v Stokes
A mother was walking with her children along a pavement when a runaway lorry passed her, she heard a crash and that the lorry was involved in an accident involving children, she suffered severe shock as she feared for the safety of her children. Her claim was allowed an as a result a claim could be made by those suffering shock due to fearing for the safety of a family member.
Extended the principle of Dulieu v White to fear for a family member
Bourhill v Young
The claimant was a pregnant fishwife. She got off a tram and as she reached to get her basket off the tram, the defendant drove his motorcycle past the tram at excessive speed and collided with a car 50 feet away from where the claimant was standing. The defendant was killed by the impact. The claimant heard the collusion but did not see it. A short time later, the claimant walked past where the incident occurred. The body had been removed but there was a lot of blood on the road. The claimant went into shock and her baby was still born. She brought a negligence claim against the defendant’s estate.
Held:
No duty of care was owed by the defendant to the claimant. There was not sufficient proximity between the claimant and defendant when the incident occurred
To claim, must be injury caused to a family member
McLoughlin v O’Brien
The claimant’s husband and three of her children were involved in a serious road traffic accident in which their car was struck by a lorry due to the negligence of the defendant lorry driver. Unfortunately one of the children was killed on impact. An ambulance took the injured parties to hospital. Another of the claimant’s sons was a passenger in a car behind the family. The driver took him home and told his mother of the incident and immediately drove her to the hospital. She saw her family suffering before they had been treated and cleaned up. As a result she suffered severe shock, organic depression and a personality change. She brought an action against the defendant for the psychiatric injury she suffered. The Court of Appeal held that no duty of care was owed. She appealed to the House of Lords.
Held:
The appeal was allowed and the claimant was entitled to recover for the psychiatric injury received. The House of Lords extended the class of persons who would be considered proximate to the event to those who come within the immediate aftermath of the event.
Legal principle:
Set out two principles which extended the rules for claiming nervous shock further
1. A claim could be made by someone who had close ties of love and affection with the victim of the accident
2. The shock could be suffered at the scene of the accident or within its immediate aftermath. No time was set, but McLoughlin arrived 2h after the accident
Page v Smith
The claimant had suffered from ME over a period of time and was in recovery when he was involved in a minor car accident due to the defendant’s negligence. The claimant was not physically injured in the collision but the incident triggered his ME and had become chronic and permanent so that he was unable to return to his job as a teacher. He was successful at his trial and awarded £162,000 in damages.
Held:
Provided some kind of personal injury was foreseeable it did not matter whether the injury was physical or psychiatric. . Also the fact that an ordinary person would not have suffered the injury incurred by the claimant was irrelevant as the defendant must take his victim as he finds him under the thin skull rule.
Did not matter whether the injury was physical or psychiatric
There was thus no need to establish that psychiatric injury was foreseeable
Alcock v Chief Constable of South Yorkshire
This case arose from the disaster that occurred at Hillsborough football stadium in Sheffield in the FA cup semi-final match between Liverpool and Nottingham Forest in 1989. South Yorkshire Police had been responsible for crowd control at the football match and had been negligent in directing an excessively large number of spectators to one end of the stadium which resulted in the fatal crush in which 95 people were killed and over 400 were physically injured. The scenes were broadcast live on television and were also repeated on news broadcasts. Sixteen claims were brought against the defendant for nervous shock resulting in psychiatric injury. At trial ten of the claims were successful. The defendant appealed against the findings in nine and the unsuccessful claimants appealed. The Court of Appeal found for the defendants in all of the claims. Ten appeals were made to the House of Lords. These included claims made by brothers, sisters, parents, a grand-parent and a fiancé. Two of the claimants had been at the ground but in a different area. Some had seen the events unfold on the television, some had heard about the events in other ways. Some had identified bodies at the makeshift mortuary.
Held:
The appeals were dismissed.
Lord Oliver set out the distinction 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. The claimants were all classed as secondary victims since they were not in the physical zone of danger.
SET OUT THE ALCOCK CRITERIA
The Alcock criteria:
The claimant must have close ties in love and affection for the victim
- The relationship is a close type of relationship i.e. family
- The relationship is close in fact i.e. friends, flatmates
The claimant suffered mental injuries at the scene of the accident or immediate aftermath - McLoughlin
- some saw bodies 8h later, not allowed
The claimant suffered shock through his own unaided senses, they saw or heard the accident or aftermath
- this excludes people who have seen it on the tv
Other claimants - rescuers ?
covers anyone who helps a victim of the accident
likely to succeed so people are not put off
Chadwick v British Rail
White v Chief Constable
Hale v London underground
Chadwick v British Rail - rescuer key case
This case arose from a horrific train crash in Lewisham in which 90 people were killed and many more were seriously injured. Mr Chadwick lived 200 yards from the scene of the crash and attended the scene to provide some assistance. He worked many hours through the night crawling beneath the wreckage bringing aid and comfort to the trapped victims. As a result of what he had witnesses he suffered acute anxiety neurosis and received treatment as an inpatient for 6 months. considered a primary victim
Held:
His estate was entitled to recover. The defendant owed Mr Chadwick a duty of care since it was reasonably foreseeable that somebody might try to rescue the passengers and suffer injury in the process.
rescuers can claim if they are the primary victim
Hale v London Underground - modern case for rescuers
a fireman had suffered PTSD following the Kings Cross fire successfully claimed as he was classed as a primary victim. However if rescuers do not put themselves at physical risk they will be classed as secondary victims and have to satisfy the Alcock criteria
White v Chief Constable of South Yorkshire - rescuer
Like the case of Alcock v Chief Constable of South Yorkshire, this case arose from the disaster that occurred at Hillsborough football stadium in Sheffield in the FA cup semi-final match between Liverpool and Nottingham Forest in 1989. South Yorkshire Police had been responsible for crowd control at the football match and had been negligent in directing an excessively large number of spectators to one end of the stadium which resulted in the fatal crush in which 95 people were killed and over 400 were physically injured. Whilst Alcock, involved claims by relatives, this case involved claims for psychiatric injury from police officers who were on duty that day . Their claims differ from those in Alcock, in that they based their claims on the grounds that as employees, the defendant owed them a duty of care not to cause them psychiatric injury as a result of negligence, alternatively they claim as rescuers, which they argued promoted them to primary victims as oppose to secondary victims. At trial Waller J dismissed the claims on both grounds. The Court of Appeal reversed this decision. The Defendant appealed to the House of Lords.
Held:
The appeal was allowed, the claimants were not entitled to recover for the psychiatric injury. (Lord Goff dissenting on both grounds, Lord Griffiths dissenting on the employment ground)
Whilst an employer owes a duty of care to employees not to cause them physical harm and there is some authority supporting claims for psychiatric injury caused by excessive stress imposed by the employer, there is no authority to support a finding of liability for psychiatric injury caused by witnessing horrific injuries to others. With regards to rescuers, their 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. Since, the claimants were not themselves at risk of physical injury, their claims could not succeed.
if a rescuer is not a physical risk they are secondary victims and will not satisfy the Alcock criteria
followed in French v Chief Constable of Sussex Police when officers claimed nervous shock after being investigated for the shooting on an innocent man
Bystanders ?
These are witnesses to an accident or aftermath and do nothing to help, they will not be able to claim for mental injury if they do not meet the alcock criteria
set out in McFarlane v E E Caledonia
McFarlane v E E Caledonia - bystander key case
This case arose from the Piper Alpha disaster in which a fire broke out in an oil rig in the North Sea resulting in the death of 164 workers and many more suffered serious injuries. The claimant worked on the Piper Alpha but was not on it when the fire broke out. At this time he was on an accommodation vessel, The Tharos, which was anchored 550 yards from the Piper Alpha. The Tharos was also an emergency vehicle and went to provide assistance. In the emergency of the situation, The Tharos did not follow procedures to evacuate the non –essential personnel before going in to rescue. The claimant was on board The Tharos for roughly 1 hour 45 minutes during the fire. Half of that time, the vessel was within 100 metres of the platform; of which 40 minutes were within 70 metres and a few minutes as close as 50 metres. The claimant brought an action against the owner and operator of Piper Alpha claiming he suffered psychiatric injury. He claimed that he feared for his life and had also witnessed men in distress, on fire and jumping into the sea. The Tharos was never actually in danger. No physical damage to the vessel was sustained. No personal injuries resulted and no other member of the vessel experienced psychiatric injury. The trial judge found for the claimant on the preliminary issue of whether the defendant owed a duty of care. The defendant appealed.
Held:
The appeal was allowed. No duty of care was owed. In relation to his fear for his own safety, it was not reasonably foreseeable that a man of ordinary fortitude and phlegm would be so affected by what he saw. The claimant was not a person of average fortitude or customary phlegm and he was more susceptible to psychiatric injury than the average man. He was not in the zone of physical danger despite his belief and therefore was not a primary victim. As a secondary victim witnessing the suffering of the other men, he did not meet the criteria established by Lord Oliver in Alcock v Chief Constable for South Yorkshire.
Bystanders are secondary victims and need to satisfy the Alcock criteria
Property owners - Attia v British Gas key case
Property owners may claim for psychiatric injury if they witness their property being destroyed
The claimant engaged the defendant to install central heating in her home. She returned home from work and saw smoke coming from the loft. She called the fire brigade, but by time they had arrived the fire had taken hold and the whole house was burnt. The defendant’s accepted the fire was caused by their negligence and settled her claim in relation to the damage to the house and contents. However, the claimant also claimed that witnessing her house burning caused her psychiatric injury. The defendant disputed this part of the claim on the basis that it was not reasonably foreseeable that the claimant might suffer psychiatric injury as a result of their negligently starting the fire and even if it was foreseeable, as a matter of law, public policy would not allow recovery. They requested these matters to be decided as a preliminary issue, to determine whether a trial was needed. The High court decided the matter in favour of the defendant and the claimant appealed.
Held:
The appeal allowed. The case should go to trial to fully investigate the issues of foreseeability. There was no reason as a matter of law why the trial should not proceed.
Near Misses?
These are people who are close to the scene and may have suffered physical or mental injuries
They are regarded as primary victims - prove D cause the accident and was negligent
do not need to be related to the victim of the accident
no key case
Gradual shock - Sion v Hampstead Heath Authority
Shock needs to be suffered as a result of sudden events, 14 days wasted long
The claimants son was seriously injured in a motorcycle accident. He was taken to hospital, went into a coma and dies 14 days later. The claimant remained at his bedside throughout and claimed psychiatric injury as a result of witnessing her sons deterioration. He claimed against the hospital, alleging that their negligent treatment of his son caused him to suffer psychiatric injury. The court decided that as there was no sudden horrifying even but a gradual decline, there was no claim
North Glamorgan NHS trust v Walters - gradual shock
N, an NHS trust, appealed against a decision granting damages to the claimant (C) for a psychiatric condition C suffered as a result of events which resulted in the death of her infant son (B). A hospital run by N had failed, negligently, to diagnose B’s acute hepatitis, and as a result B suffered a seizure which was witnessed by C. The hospital initially informed C that B had suffered no brain damage but it later transpired that B had incurred severe brain damage and would have no quality of life. C agreed to terminate life support and B died in her arms. C brought an action against N for psychiatric damage, which was upheld, and N appealed on the basis that C was insufficiently proximate
Issue
Whether, in order to recover damages for psychiatric harm, the claimant must have witnessed a single traumatic event or its immediate aftermath, or whether, as was the case here, it would suffice that the event itself transpired over a period of hours but the appreciation of the claimant was itself sudden. It was also argued by N that, as a matter of policy, to recognise liability in such circumstances would overextend the ambit of negligence with respect to psychiatric damage.
Held
C was entitled to recover damages as a secondary victim. In such cases the claimant must have witnessed a horrifying event or its immediate aftermath, as C had done. Such an event, moreover, was not limited to one moment in time; a realistic approach had to be taken in such cases, and on a realistic appraisal of the facts C had suffered nervous shock as a result of the sudden impact of being informed of B’s condition.
Reaction to events happening over 36 hours can be considered as a horrifying event
Gradual shock - Galli-Atkinson v Seghal
Key point
In negligence, psychiatric injury resulting from identifying the corpse of a close family member in the aftermath of the fatal incident can be of sufficient proximity to be deemed part of the ‘immediate aftermath’ to render the tortfeasor liable
Facts
G’s daughter died in a road traffic accident because of D’s negligent driving.
G arrived at the scene of the accident approximately one hour after the accident had occurred, and was informed by the police that her daughter was dead but G remained in denial.
Approximately two hours later, G went to the mortuary and saw the dead body of her daughter, as a result, G suffered significant psychiatric disorder.
To succeed, G had to prove that:
she had a close tie of love and affection with the person killed;
she was close to the incident in time and space, ie present at the incident or its immediate aftermath;
she perceived the event or its immediate aftermath rather than hearing about it by a third person;
the illness that followed was induced by the shock of the event or its immediate aftermath
At first instance, the judge rejected G’s claim for damages in negligence for her psychiatric disorder.
Issue
Did G’s perceive and suffer shock from the immediate aftermath of the accident such that D owed a duty of care to G?
Held (Court of Appeal)
Appeal allowed; the proximity test for psychiatric injury was met and the defendant was held liable.
The shock was not caused solely by G being told of her daughter’s death, this merely formed part of the immediate aftermath which caused the shock and the psychiatric illness.
Rather, the shock was caused by G viewing her daughter’s body in the mortuary, which was part of the immediate aftermath of the accident.
Used precedent of gradual shock
