Psychiatric Harm

Question 1

Key arguments for restricting claims for negligently inflicted psychiatric harm

Answer 1

• The ‘floodgates’ argument (Alcock v Chief Constable of South Yorkshire)
• ‘Crushing liability’
• Fraudulent claims

Question 2

Definition of psychiatric harm

Answer 2

A form of psychiatric illness or damage that the claimant has suffered as a result of the perception of traumatic events.

Question 3

Historically, would recovery for psychiatric harm be permitted?

Answer 3

Initially, recovery would only be permitted where the claimant had also suffered some physical damage as a result of the negligence.

Question 4

Evolution of court’s stance on psychiatric harm

Answer 4

Bourhill v Young (1943) - ‘In the case of mental shock there are elements of greater sublety than in the case of an ordinary physical injury and those elements may give rise to debate as to the precise scope of liability.’
Dulieu v White (1901) - held that to recover, a claimant should have been placed in fear for his own safety.
Hambrook v Stokes Bros (1925) - this restriction was lifted but it was held that recovery could only be made where the claimant perceived the events giving rise to the claim unaided.

Question 5

McLoughlin v O’Brian

Answer 5

The claimant was informed there had been an accident involving her family and then went to the casualty department and saw her family in a distressed and injured state. The House of Lords held that she was entitled to recover, and were happy to extend liability to those who witnessed the immediate aftermath of an event.

Question 6

Distinction between ‘primary victim’ and ‘secondary victim’

Answer 6

Introduced in Alcock v Chief Constable of South Yorkshire Police. Crucial as the courts apply different tests for establishing whether a duty of care is owed.

Question 7

Primary victim

Answer 7

Someone who suffers psychiatric harm as a result of reasonable fear for their own safety (an objective test)

Question 8

Criteria to be a primary victim

Answer 8

• involved in the traumatic event in question
• within a foreseeable range of physical injury i.e. the danger zone, but only suffer psychiatric harm, not physical injury

Question 9

Examples of primary victims

Answer 9

Dulieu v White: pregnant barmaid suffered psychiatric harm and miscarriage when defendant crashed his coach through a wall in her pub. It was reasonable she would fear for her own safety.
Page v Smith: claimant involved in car crash caused by defendant’s negligence. Psychological effect of the crash worsened his ME condition. Condition arose from reasonable fear for his own physical safety.

Question 10

Secondary victim

Answer 10

Someone who suffers psychiatric harm due to fear for someone else’s safety

Question 11

Criteria for secondary victim

Answer 11

• witnesses the traumatic event in question (or its immediate aftermath) and suffers psychiatric harm
• is not involved in the event nor in the danger zone

Question 12

Examples of secondary victims

Answer 12

McLoughlin v O’Brian: claimant was a secondary victim because she suffered psychiatric damage as a result of concern for her family from witnessing a shocking event
Alcock: all the claimants were secondary victims. Some were claimants 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 friends/family in danger. Other claimants were not at the grounds at the time but suffered psychiatric harm after finding out about the disaster and having to identify bodies.

Question 13

Bystanders or rescuers

Answer 13

Not given any special status in this area of law. They must be classified as a primary or secondary victim.

Question 14

Bystander/rescuer as primary victim

Answer 14

Chadwick v British Railways Board: claimant succeeded in claim for psychiatric harm as a result of helping to rescue victims from a railway crash. Primary victim because the carriage could have fallen on him at any time during the rescue attempt.

Question 15

White v Chief Constable of the South Yorkshire Police (bystander/rescuer as secondary victim, not primary victim)

Answer 15

Claimants were police officers on duty during the Hillsborough disaster. They had assisted removing bodies, carrying the injured to safety and resuscitating spectators. Their action was for PTSD as a result. The House of Lords dismissed their appeal as their status as employees and professional rescuers did not automatically convert them from secondary victims to primary victims. They were secondary victims under Alcock.

Question 16

Primary victims: test for duty of care

Answer 16

The defendant must reasonably have foreseen that the claimant might suffer personal injury as a result of their negligence. If personal injury was reasonably foreseeable, the normal principles for determining the existence of a duty of care would then apply.

Question 17

Primary victims: criteria

Answer 17

• Psychiatric harm must be medically recognised
• Physical harm must be reasonably foreseeable
• Proximity and fair, just and reasonable

Question 18

Primary victims: Psychiatric harm must be medically recognised

Answer 18

• Page v Smith: so as to stop the floodgates
• Reilly v Merseyside Regional Health Authority: liability will not arise from fear, distress or mental grief, i.e. what the court considered to be only normal human emotion following an unpleasant experience
• Reference is made to the DSM and ICD
• various examples have been given, such as depression (Hinz v Berry), a positive psychiatric illness (McLoughlin v O’Brian) and PTSD (Re GB, RB and RP)
• Physical illness resulting from psychiatric harm may also form the subject of a claim (e.g. the miscarriage in Dulieu v White)

Question 19

Primary victims: the psychiatric condition giving rise to the physical symptoms must be a recognised condition, and both the psychiatric injury and physical injury must be material

Answer 19

Mazhar Hussain v Chief Constable of West Mercia: The claimant suffered from anxiety and stress which he argued caused numbness in his arm and leg. The court held that anxiety and stress were not medically recognised psychiatric illnesses, and the physical symptoms did not amount to material damage.

Question 20

Can grief or bereavement be classified as a positive psychiatric illness?

Answer 20

Yes, where the pathological grief syndrome goes beyond what is classed as normal human emotion (Vernon v Bosley)

Question 21

Primary victim: Physical harm must be reasonably foreseeable

Answer 21

In the case of primary victims if physical injury is foreseeable to a particular claimant, then that would be sufficient to enable the claimant to recover damages for psychiatric harm. There is no need to foresee the psychiatric harm as well. (Page v Smith)

As primary victims are within the danger zone, it is likely that in most cases the defendant should have foreseen physical injury to the claimant.

Question 22

Primary victims: the ‘thin skull’ rule

Answer 22

Confirmed in Page v Smith that as with claimants who suffer physical harm, if there is an underlying condition that is exacerbated, the court will allow application of the ‘thin skull’ rule.

Question 23

Primary victims: proximity and fair, just and reasonable

Answer 23

• If personal injury is held to be reasonably foreseeable, the courts will apply the usual principles for determining the existence of a duty of care.
• There is always geographical proximity between the claimant and defendant (as the primary victim is always present at the traumatic event)
• If the defendant negligently and foreseeably puts the claimant in fear for their own safety, it is likely the courts will find it fair, just and reasonable to impose a duty of care.

Question 24

Secondary victims: the test for duty of care

Answer 24

The Alcock Criteria (must first be established that the psychiatric harm complained of is recognised in law):

(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 a result of sudden shock.

Question 25

Secondary victims: Psychiatric harm must be reasonably foreseeable

Answer 25

• Secondary victim must establish that the psychiatric harm suffered was reasonably foreseeable in a person of normal fortitude in the same circumstances.
• Trauma witnessed must be considered such as to be likely to cause psychiatric injury in a person of reasonable fortitude; the courts expect people to have ‘customary phlegm’ (Bourhill v Young)

Question 26

Secondary victims: thin skull rule

Answer 26

However, once it has been established that a person of normal fortitude might have suffered psychiatric illness, the normal ‘thin skull’ rule is applicable (Page v Smith)

Question 27

Secondary victims: proximity of relationship between claimant and victim

Answer 27

The closer the relationship between the claimant and the actual victim(s) who suffered personal injury for whose safety they feared, the more likely a duty will exist. The court considered in Alcock that what was important was the quality of the relationship proven by reference to the strengths of the bonds of love and affection, not by reference to a particular blood or marital tie.

Question 28

Secondary victims: proximity of relationship: rebuttable presumptions

Answer 28

These close ties must be proved by the claimant, although they can be rebuttably presumed in the case of parents, children, spouses and engaged couples. This is not the case for grandparents, grandchildren or siblings. It would seem that fiancé will be sufficiently close too. However, each individual case will turn on its facts.

Question 29

Secondary victims: where the actual victim is a stranger or bystander?

Answer 29

Courts have generally taken view that the claimant must possess the ‘customary phlegm’ of the reasonable man and be able to withstand witnessing accidents to strangers.

House of Lords in Alcock thought it might be possible if the accident/incident was particularly horrific, but this was denied in McFarlane v EE Caledonia.

Question 30

Greatorex v Greatorex

Answer 30

A secondary victim will not be able to claim if the actual victim for whose safety they feared is the defendant in the case.

Question 31

Secondary victims: proximity of the claimant to the accident in space and time

Answer 31

• Usually the claimant is present at the scene of the accident when it happens.
• However, courts have extended physical proximity to include the case where the claimant perceives the ‘immediate aftermath’ of an accident.

Question 32

Secondary victims: Alcock - proximity of the claimant to the accident in space and time

Answer 32

claimants in successful cases were ‘either personally present at the scene of the accident or were in more or less the immediate vicinity and witnessed the aftermath shortly afterwards…there was not only an element of physical proximity…but a close temporal connection between the event and perception of it’ (e.g. one of the claims in Alcock failed because they didn’t see their relative until 8 hours later, compared with 2 in McLoughlin)

Question 33

Secondary victims, temporal connection: Galli-Atkinson v Seghal

Answer 33

the mortuary visit was within the requisite immediate aftermath as there was an ‘uninterrupted sequence of events’

Question 34

Secondary victims: Taylor v A Novo

Answer 34

• issue was whether the ‘event’ giving rise to PTSD was the original head injury suffered by her mother at work, or the subsequent death 3 weeks later witnessed by the claimant
• decided that the original event was the relevant ‘event’ for the purposes of establishing proximity and so the claimant could not recover as a secondary victim

Question 35

Duty owed to a secondary victim merely told about a shocking event (TV, radio) etc?

Answer 35

• No duty owed to secondary victim merely told about a shocking event (including via newspaper or TV)
• Possibility left open for claims involving live television broadcasts where it was clear victims had died

Question 36

Injury must be a result of sudden shock

Answer 36

Claimant’s psychiatric harm must be proved to be ‘a reaction to the immediate and horrifying impact’ and ‘a sudden assault on the nervous system’, rather than a gradual realisation: it must be shock-induced (Alcock)

Question 37

Cases - injury must be a result of sudden shock

Answer 37

North Glamorgan NHS Trust v Walters: claimant suffered psychiatric illness after negligent medical treatment led to the death of her baby. The events took place over 36 hours, but the series of events together could constitute a ‘horrifying event’ and the claimant’s appreciation of events was ‘sudden’

Sion v Hampstead Heath Authority: the psychiatric condition developed after the claimant (father) saw the victim (son) in intensive care over a period of 2 weeks and gradually came to the realisation medical negligence had caused the injuries. This was not a sudden reaction.

Question 38

Secondary victims: fair, just and reasonable

Answer 38

In addition to the Alcock criteria, the court will always take into account whether it is fair, just and reasonable to impose a duty (policy considerations e.g. floodgates, crushing liability, risk of fraudulent claims and evidential difficulties)

Question 39

Secondary victims: reforms

Answer 39

• Reviews of this area of law have been made by the Law Commission
• Important recommendation made: that the statutory duty of care would arise when a claimant suffers a reasonably foreseeable psychiatric illness as a result of the death/injury/imperilment of someone with whom they have a close tie of love and affection. No need for proximity of time and space.

Question 40

Assumption of responsibility cases

Answer 40

• Psychiatric harm cases where the claimant cannot be classified as an actual/primary/secondary victim
• A defendant will owe a claimant a duty of care not to cause psychiatric harm where the defendant has ‘assumed responsibility’ to ensure that the claimant avoids reasonably foreseeable psychiatric harm, e.g. employer/employee, doctor/patient, police/police informant
• e.g. occupational stress claims (Walker v Northumberland City Council): if the psychiatric harm is reasonably foreseeable

Question 41

Baker v Somerset County Council: guidance as to when an employer would be in breach in occupational stress claims

Answer 41

(1) Psychiatric harm was (or ought to have been) reasonably foreseeable to the employer
(2) Foreseeability depends on the relationship between the characteristics of the claimant and the requirements made of them by the employer
(a) Nature and extent of the work undertaken e.g. if the workload is more than normal for that job
(b) Signs of stress shown by the claimant
(c) Size and scope of the business and availability of resources

Once this threshold is crossed, it is immaterial whether a person of ordinary fortitude would have suffered the harm.