Liability For Psychiatric Harm-12 Flashcards
Recognising psychiatric harm:
- emotional distress where C has sustained injury?
- when can you recover damages for mental harm in the absence of physical harm?
Emotional distress is compensable where the claimant has sustained physical injuries, and a court will deal with it through the award of non-pecuniary damages for pain and suffering.
However, to recover damages for mental harm in the absence of physical harm, ‘the plaintiff must have suffered psychiatric injury in the form of a recognised psychiatric illness’ (White v Chief Constable of South Yorkshire [1998]
distinction between medically recognised illness and claims for mere grief/sorrow/distress?
The latter are not afforded a remedy since they are a result of the human condition.
Examples of medically recognised illnesses
+case law
- PTSD – White v Chief Constable of South Yorkshire [1999]
- Organic depression and a change in personality – McLoughlin v O’Brian [1983]
- Pathological grief disorder – Vernon v Bosley (No 1) [1997]
The three categories of claimants in psychiatric illness cases:
(i) Claimants who suffer psychiatric illness as a result of having been physically injured by the defendant’s negligence;
(ii) Claimants who are put in physical danger but only suffer psychiatric harm; and
(iii) Claimants who are not in any physical danger but witness death or injury to another person with whom they have a close relationship of love and affection.
DOC-psychiatric illness cases and types of victims
The duty to avoid causing psychiatric harm.
(i) In what circumstances will a duty of care be imposed to avoid causing psychiatric harm?
Type of victim - Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310:
(i) Primary victim–> One who suffers psychiatric harm after being ‘directly involved’ in an accident–> include those who suffer psychiatric damage through stress at work, and those who are physically endangered.
(ii) Secondary victim
DUTY OF CARE OWED TO A PRIMARY VICTIM:- Dulieu v White [1901]
the fear must be reasonably held.
- plaintiff, a pregnant barmaid, was behind the bar in a pub when a negligently driven carriage came off the road and crashed into the pub, entering the room where she was standing. She suffered shock and a subsequent miscarriage. Kennedy J upheld her claim.
DUTY OF CARE OWED TO A PRIMARY VICTIM: -Page v Smith [1996]
whether foreseeability of physical injury is enough to enable the claimant to recover damages for psychiatric illness.
- the plaintiff was involved in a relatively minor car accident, but was not physically injured.
- The reasoning in Page v Smith is quite difficult to understand.
- In essence, however, their Lordships held that, where there is a danger of physical injury, the law should regard physical and psychiatric injury as the same kind of harm.
- Applying the “eggshell skull rule”, their Lordships reasoned that, because it was foreseeable that some (minor) harm of a relevant kind would be caused (being “shaken up” by the car crash), the defendant was liable for the full extent of the harm that was actually suffered.
DUTY OF CARE OWED TO A PRIMARY VICTIM:- Chadwick v BTC [1967]
rescuers
rescuers did not need to be in physical danger to qualify as primary victims- confined to its facts
- it is not necessary to show that fear of physical harm is the cause of the primary victim’s psychiatric illness.
- (Thus, where the primary victim is a “rescuer”, although the element of physical danger—or reasonable fear thereof—must be present, the cause of the psychiatric illness may be witnessing the imperilment of those being rescued.)
DOC–>Primary Victim–>actual danger?
if not then based on reasonableness
- in most cases, of course, a claimant’s reasonable grounds for fearing for his or her safety will derive from the fact that he or she is in actual danger. Nevertheless, it is possible to imagine a case where a claimant reasonably thinks that he or she is in danger when, as a matter of fact, no such danger exists
In any event, the claimant’s fear for his or her own safety must be reasonable
DOC–>Secondary Victim
what is a secondary victim?-case
- One who is ‘no more than the passive and unwilling witness of injury to another’ (Alcock v Chief Constable of South Yorkshire [1992])
What is the control mechanism secondary victims have to pass?
- The control mechanisms ‘secondary’ victims have to pass in order to establish that the defendant owed them a duty of care, as laid down in Alcock.
- proximity of relationship with the “immediate victim”;
- proximity in “time and space” to the events causing the psychiatric illness;
- the claimant must have directly perceived the incident rather than, for example, hearing about it from a third person; and
- the claimant’s illness must be induced by a sudden shocking event.
DOC–>secondary Victim–> Reasonable foreseeability & nature of relationship between primary victim and secondary victim
-Bourhill V Young
• Bourhill v Young [1942] Not reasonably foreseeable that a person of normal fortitude would have suffered nervous shock
- pregnant woman who, while descending from a tram, heard a road accident occur some distance away. She later attended the scene of the accident, saw blood on the road, and subsequently suffered a miscarriage produced by shock.
- HOLs held: that the woman was not a “foreseeable claimant”. In other words, she could not base her action on a wrong done to someone else.
- ordinary people could be expected to withstand the rigours of witnessing injury to a stranger on the roads without suffering psychiatric illness.
DOC–>secondary Victim–> Reasonable foreseeability & nature of relationship between primary victim and secondary victim
• McFarlane v EE Caledonia Ltd [1994]
not reasonably foreseeable that a mere ‘bystander’ would suffer psychiatric illness in such circumstances.
- plaintiff alleged psychiatric illness brought on by his involvement in the Piper Alpha oil rig disaster—the rig exploded, causing the death of many workers on board.
- His claim as a “primary victim” failed, however, because at the time of the disaster he had been working in a support boat about 50 yards away from the rig and it was obvious that the boat had never been in any danger.
- It followed that his fear for his safety was unreasonable
DOC–>secondary Victim–> Reasonable foreseeability & nature of relationship between primary victim and secondary victim
• White v Chief Constable of South Yorkshire [1998]
possibility of recovery of compensation by a ‘mere bystander’ witnessing a particularly horrific event without showing any relationship at all with the immediate victim of the catastrophe.
DOC–>secondary Victim–> Reasonable foreseeability & nature of relationship between primary victim and secondary victim
-• Alcock v Chief Constable of South Yorkshire [
Close tie of love and affection
- parents, brothers, sisters, a brother-in-law, a grandparent and a fiancée of the immediate victims.
- Their Lordships refused to define rigid categories of relationship into which secondary victims of psychiatric illness must fall. Instead, they held that there must generally be a close relationship of love and affection between the “secondary victim” and the “immediate victim” of the accident.
- According to their Lordships, such a relationship could be presumed to exist in the case of spouses, parents and children. This presumption could, however, be rebutted by evidence in an appropriate case, such as where the parties were estranged.
- Siblings and other relatives (such as grandparents, uncles and aunts) would not normally satisfy this element unless they can show that a close relationship did in fact exist.
