7. Negligence - psychiatric harm

Question 1

**Page v Smith (HL) 1995 2 All ER 736; 1996 1 AC 155

Answer 1

• The case concerns foreseeability of psychiatric damage and creates an important distinction between primary and secondary victims in the law of negligence to the recovery of such damage
• Facts
• The plaintiff Mr Page, was involved in a minor car accident, and was physically unhurt in the collision. However, the crash resulted in a chronic fatigue syndrome so that he was unable to return to his job as a teacher. He was successful in his trial and was awarded £162,000 in damages.
• Held
• Provided some sort of personal injury was foreseeable, it did not matter whether the injury was physical or psychiatric. There was thus no need to establish that psychiatric injury was foreseeable. 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 skull rule.
• In the case of direct victims, their Lordships the following test should apply: ‘Could the defendant reasonably foresee that his conduct would expose the plaintiff to the risk of personal injury, psychological or physical?’ If the answer was yes, it would be irrelevant that the extent of the damage was unforeseeable because the plaintiff had special sensitivities. This is based on the eggshell skull rule that one ‘takes the plaintiff as one finds him.’
• It does not follow that whenever there is physical injury that psychiatric injury will be foreseeable, therefore, the test is based on the type of damage.
• This authority has been left very vulnerable because it is difficult to identify primary victims in the next case –
• In this case Lord Lloyd said that a party who is within the zone of physical danger is a primary victim.
• But difficulty arises when a party who is not physically endangered will count as a primary victim. Some parties are not physically endangered but are recognised as primary parties below.

Question 2

**Rothwell aka Re Pleural Plaques [2007] HL 39 [2007] 4 All ER 1047
aka Johnston v NEI,Grieves v Everard

Answer 2

• Facts
• The appellants had been negligently exposed to asbestos at work and developed pleural plaques. Their case was put to the House of Lords on three main grounds:
1. Pleural plaques alone represent damage / (Lord Hoffmann rejected this. He said pleural plaques cause no symptoms, do not increase susceptibility to other disease or shorten life expectancy and had no effect on the health of the appellants.
2. Pleural plaques plus anxiety about the risks of developing another asbestos related disease ‘aggregate’ to damage. / This was also rejected unanimously by the House of Lords. Neither the the pleural plaques nor anxiety without psychiatric injury represented damage in law on their own and they could not be linked together when neither one nor the other had any value in law.
3. Psychiatric and physical injury developing from general anxiety. / One appellant, Mr Grieves, had had developed a full blown psychiatric injury and irritable bowel syndrome through his anxiety about the pleural plaques. The Law Lords dismissed the claim because, they ruled:
- The risk of asbestos related disease in this claim would not cause a psychiatric illness to a person of reasonable fortitude
- Mr Grieves had also relied on the precedent of Page v Smith, namely that where any physical injury was foreseeable as a result of an event, then any consequent psychiatric injury was compensable. The Law Lords again disagree saying that what was foreseeable, that he would contract asbestos related disease, had not occurred. His injury was a cause by his worry that it might occur and this was not the same principle as Page.

Question 3

Walker v Northumberland 1995 1 All ER 737

Answer 3

• Facts
• A social worker in charge of a team field workers had reported his stress, arising put of a greatly increased workload. On his return to work he was given to understand that he would have an assistant to ease his work load, but it turned out that the assistant was only intermittently available. He suffered a second breakdown and had to retire.
• Legal principle
• The case established the precedent that an employer can be held liable for mental injury to an employee caused by word-related stress. The judgment underlined the employer’s duty of care to provide safe systems of work in respect of occupational stress as well as other hazards, and to take steps to protect employees from foreseeable risks to mental health.

Question 4

*Waters v Commissioner of Metropolitan Police (HL) 2000 1 WLR 1607, 2000 4 All ER 934

Answer 4

• Key word – discrimination
• The case concerns victimisation for alleging rape, and whether the employee could claim this amounted to sex discrimination. It now falls under the Equality Act 2010 section 27.
• Facts
• PC waters said she was raped outside work by a colleague. She complained about it but was then subject to nasty treatment by colleagues and superiors.
• The employment tribunal held that the rape was not actionable discrimination within the SDA, and therefore the complaint was not a ‘protected act’ within SDA 1875 s 4.
• The CA dismissed the appeal.
• The HL held -
• The HL did not hear an appeal on the SDA 1975 definition of victimisation, but allowed and appeal in respect of negligence over the harassment, unfair treatment and victimisation after the rape complaint.
• Lord Hutton – stated that if psychiatric harm resulted from complaining about rape, ‘it is in the public interest that it should be brought to light so that steps can be taken to seek to ensure that it does not continue, because if officers…are treated as the plaintiff alleges, citizens will be discouraged from joining the police, or from continuing to serve in the police after they have joined, with consequent harm to the interests of the community.’

Question 5

Hatton v Sutherland [CA, aka Barber v Somerset in HL] 2002 2 All ER 1

Answer 5

• Facts
• The claimant was a secondary school teacher who suffered from depression and a nervous breakdown. The CA found that Hatton gave the school she worked for no notice that she was growing unable to cope with her work. She had suffered some distressing events outside of work, which the school could reasonably have attributed her absence to, particularly as other staff did not suffer from health problems as a result of restructuring in the school, and the fact that she did not complain.

• The defendant employers appealed for findings of liability for personal injuries consisting of an employee’s psychiatric illness caused by stress at work.
• Held
• Employers have a duty to take reasonable care for the safety of their employees. There are no special controls on claims for psychiatric (or physical) injury or illness arising from the stress of doing work an employee has to do.
The court held that as teaching cannot be regarded as intrinsically stressful, the school had done all the could reasonably be expected to do. It was unnecessary to have in place systems to overcome the reluctance of people to voluntary seek help.

Question 6

*Corr v IBC (HL) [2008] UKHL 13, [2008] 2 All ER 943

Answer 6

• In negligence cases, claimants have to show (among other things) that the harm they suffered was reasonably foreseeable, and part of a ‘chain’ that can be traced back to the incident.
• In Corr, the HL said that suicide was a reasonably foreseeable consequence of an employer’s breach of duty.
• Facts
• Mr Corr suffered from depression and post traumatic stress disorder (PTSD) after having suffered a serious accident at work due to a machine that malfunction.
• After his death, his widow brought a claim for damages under s 1 of the Fatal Accidents Act 1976, arguing that her husband’s physical and psychiatric injuries (including his suicide) were reasonably foreseeable consequences of the accident.
• IBC Vehicles admitted that it had breached the duty of care it owed Mr Corr and that breach caused the accident, but denied liability for his suicide.
• Held by the HL
• Said that personal injury included psychological injury and that Mr Corr’s depression had been caused by his accident.
• As a result of his accident, ‘he acted in a way which he would not have done but for the injury.’ His suicide was therefore a foreseeable outcome of his injuries and the damages claimed fell within the scope of the duty that IBC owed Mr Corr.
• As for the argument that his suicide had broken the ‘chain of causation’, their Lordships said that ‘Mr Corr’ suicide was not voluntary, informed decision taken by him as an adult of sound mind making and giving effect to a personal decision about his future. It was the response of a man suffering from a severely depressive illness which impaired his capacity to make a reasoned and informed judgments about his future…It is no way unfair to hold the employer responsible for this dire consequence of its breach of duty.’
• The law seems to award damages for psychiatric injury when it is followed by some form of physical injury

Question 7

• McLoughlin v O’Brian (HL) 1982 2 All ER 298

Answer 7

• 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. One of the children was killed on impact.
• Another of the claimant’s sons was a passenger in a car behind the family. The driver took him home and told the mother of the accident and immediately drove her to the hospital. She saw her family suffering before they had been 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 CA held that no duty of care was owed.
• The HL held
• Allowing the appeal – that the claimant was entitled to recover for the psychiatric injury received. The HL extended the class of persons who would be considered proximate to the event to those who come within the immediate aftermath of the event.
• Reasoning
• As a person such as a spouse could be considered to attend the aftermath of the accident, she was part of the ‘immediate aftermath’ (concept introduced in this case) of the accident, and therefore could recover as there was a reasonable proximate relationship between her and the accident.
• The case was regarded as a case that had been looked into suddenly unlike the Alcock case

Lord Bridge at 431
• ‘The common law gives no damage for the emotional distress which any normal person experiences when someone he loves is killed or injured. Anxiety and depression are normal human emotions. Yet an anxiety neurosis or a reactive depression may be recognisable pychiatrict illnesses, with or without psychiatric symptoms. So…a plaintiff claiming damages…is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness.’

Question 8

**Alcock v Chief Constable of S.Yorkshire (HL) 1992 1 AC 310

Answer 8

• The case arose in the FA semi-final match between Liverpool and Nottingham Forest in 1989. South West Yorshire Police had been responsible for crown 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 the nervous shock resulting in psychiatric injury. At trial ten of the claims were successful, the defendants appealed.
• In the HL
• Held
• The appeals were dismissed
• Lord Oliver set out a 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 classified as secondary victims since they were not in the physical zone of danger.
• For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria:
1. A close tie of love and affection to a primary victim -
2. Witness the event with their own unaided senses
3. Proximity to the event or its immediate aftermath
4. The psychiatric injury must be caused by a shocking event

Question 9

Hunter v British Coal Corp (CA) 1998 2 All ER 97

Answer 9

• The claimant was employed by the defendant to drive an FSV in the coal mine. Whist driving his FSV he struck a water hydrant, due to poor visibility, inadequate lighting and bad floor conditions and breach of statutory duty by the defendant in relation to the minimum vertical clearance above the vehicle. The hydrant was also protruding (extending beyond) into the roadway. The claimant stopped his vehicle and saw the hydrant was leaking water.
• He attempted to turn a valve to stop the leak but was unable to. A work colleague came to provide some assistance but together they still could not stop the leak. The claimant went off to find a hose to channel the escaping water, however, when he was about 20 yards away the water hydrant exploded.
• Mr Hunter was told that his colleague had been killed in the explosion. He felt responsible for the death and this guilt feeling caused him a pathological depressive illness. He brought an action against the employee for the psychiatric injury suffered.
• Held
• Appeal dismissed (Hobhouse LJ dissenting)
• Mr Hunter was not a primary victim as he was not within physical proximity at the time of the explosion and heard of the death 10 minutes later. As a secondary victim he did not satisfy the criteria set out by Lord Oliver in Alcock v Chief Constable of Yorkshire.

• Brooke LJ:
• Three different types of primary victim in which the law will recognise a duty of care with regard to the victim
i. Those who are caused to fear physical injury to themselves;
ii. Those who come to the rescue of the injured;
iii. Those who believe that they are about to be, or have been, the involuntary cause of another’s death or injury.

Question 10

**White v Chief Constable South Yorkshire Police (HL) 1998 3 WLR 1510, 1999 1 All ER 1

Answer 10

• Similar to the case of Alcock v Chief Constable of South Yorkshire, this case arose from the disaster in the FA cup semi-final where South Yorskshire Police had been responsible for crowd control and had been negligent in giving wrong instructions to spectators.
• Their claims differ to Alcock’s, 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 the negligence, alternatively they claim as rescuers, which they argued promoted them to primary victims as opposed to secondary victims. At trial Waller J dismissed the claims on both grounds.
• On appeal to the HL
• The defendant’s appeal was allowed
• The claimants were not entitled to recover for the psychiatric injury.
• An employer owes a duty of care to employees not to cause them physical harm. However, there is no authority to support a finding of liability for psychiatric injury caused by witnessing horrific injuries to others.
• With regard to rescuers, their status as rescuers does not automatically place them as primary victims. To amount to a primary victim a rescuer must be in the zone of physical danger. Since the claimants were not themselves at risk of physical injury, their claims could not succeed.
• This case is often explained on the grounds of policy, in that it would be repugnant to allow the police officers to recover where relatives had been denied compensation.
• Lord Steyn and Lord Hoffmann.

Question 11

Greatorex v Greatorex 2000 1 WLR 1970

Answer 11

• John Greatorex had been drinking with his friend Haydon Pope. John with Haydon’s permission drove Haydon’s car and was involved in a collision with another vehicle.
• Haydon was uninjured but John suffered a serious head injury and was unconscious trapped in the car for about an hour.
• The emergency services were called and the claimant Christopher Greatorex, John’s father, a leading fire officer, arrived on the scene. Christopher then attended to his son and then suffered a long term sever post-traumatic stress disorder as a result of the incident.
• The claimant brought an action against his son for the psychiatric injury caused by his negligence.
• Held
• The claim failed on policy grounds. Whilst the claimant was a secondary victim and met the criteria set out by Lord Oliver in Alcock v Chief Constable, a primary victim does not owe a duty of care to a third party in circumstances where his self-inflicted injuries caused that third party psychiatric injury.
• Cazalet J:
• ‘where a family member suffers psychiatric harm as a result of the self-inflicted injuries of another family member, the psychiatric illness in itself may well have an adverse effect upon family relations which the law should be astute not to exacerbate by allowing litigation between those family members. In my judgment, to permit a cause of action for purely psychiatric injury in these circumstances would be potentially productive of acute family strife.’

Question 12

*Taylor v Novo [2013] EWCA Civ 194

Answer 12

• Facts
• The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making good recovery but then collapsed and died at home. The claimant, her daughter witnessed the death, but not the accident, and suffered post traumatic stress disorder.
• The employer appealed against the claim and succeeded.