Negligence and Psychiatric Injury

Question 1

what is a psychiatric injury claim?

Answer 1

cases which examine ‘pure’ mental harm caused, independent of physical injury

Question 2

what are some prerequisites for psychiatric injury claims? (incl. 3 cases)

Answer 2

• C can only claim for recognised psychiatric injuries; does not include grief/sorrow caused by a person’s death (Hinz v Berry)
• It is not possible to recover in the tort of negligence for ‘mere’ grief, anxiety or distress (Hicks v Chief Constable of South Yorkshire Police)
• ‘The law cannot compensate for all emotional suffering even if it is acute and truly deliberating’ (White v Chief Constable of South Yorkshire Police)

Question 3

What are Lord Steyn’s arguments for restricting compensation for pure psychiatric harm? (incl. case)

Answer 3

White
1. Difficulties of drawing a line between acute grief and psychiatric illness and the greater diagnostic uncertainty in relation to psychiatric claims (fear of sham claims)
2. Increased availability of compensation may act as a disincentive to rehabilitation
3. Floodgates argument
4. The potential unfairness to D of imposing damages out of all proportion to the negligent conduct

Question 4

academic commentary: is mental harm less significant than physical harm?

Answer 4

Rackley and Horsey acknowledge that there remains a general reluctance to let go of the assumption that mental harm is not just different from, but also less significant than physical harm

Question 5

Starting point for psychiatric injury cases

Answer 5

Victorian Railways v Coultas - no damages could be recovered for injury caused when no physical impact was made as a result of another’s negligence; cannot be mere ‘shock’

Question 6

two pro-claimant developments in psychiatric injury claims (2 cases)

Answer 6

• Dulieu v White - C must be in the zone of physical risk where reasonable fear or apprehension of danger to one’s own physical safety can arise
• Hambrook v Strokes - for C to have an actionable case, they must have apprehended the harm through their own unaided senses

Question 7

early case in which psychiatric injury claim failed and judges’ opinions (incl. quote)

Answer 7

• Bourhill v Young - C’s claim failed as she did not apprehend the harm through her own unaided senses
• Lords Porter and Wright however argued for a wider, test of reasonable foreseeability
• Lord Macmillan noted that ‘In the case of mental shock … there are elements of greater complexity than in the case of ordinary physical injury and these elements may give rise to debate as to the proper scope of legal liability’

Question 8

reasonable foreseeability as an approach? (incl. case and commentary)

Answer 8

• King v Phillips - Denning J used the reasonable foreseeability test to disregard the claim
• HOWEVER Steele describes this approach as ‘deceptively simple’

Question 9

immediate aftermath? (incl. case)

Answer 9

• McLoughlin v O’Brien - C received the information about an accident her family was involved in 2hrs after it occurred
• C’s claim was successful as she fell within the ‘immediate aftermath’ and recovered compensation

Question 10

Lord Wilberforce’s McGloughlin Framework (relevant considerations)

Answer 10

1. Relationship - the closer it is the more powerful the claim will be
2. Proximity in time and space - immediate aftermath principle
3. Means of communication - shock by apprehension of the event through one’s own unaided senses

Question 11

commentary: Lord Wilberforce on psychiatric injury claims in McGloughlin

Answer 11

the development of psychiatric injury law ‘proceeded in the traditional manner of the common law from case to case, upon a basis of logical necessity’ and ‘logical progression’

Question 12

academic commentary: development of psychiatric injury claims by McLoughlin

Answer 12

Robertson described development as reflecting judicial ‘conservatism and caution’ in relation to the control devices which prevent the floodgates from opening

Question 13

psychiatric injury and the hillborough disaster (incl. case)

Answer 13

• Alcock v South Yorkshire CC - identifying a body in a mortuary after 8hrs was not in the immediate aftermath
• television broadcast of the events is not the same thing as apprehension through one’s own unaided senses

Question 14

Alcock Criteria for 2ndary victims (amended McGloughlin)

Answer 14

• Proximity in time or space - a bystander must be in the range of foreseeable physical harm (Page v Smith), or in the immediate aftermath of the events (Alcock, McLoughlin)
• Sufficient relationship of love and affection - rebuttable presumption i.e. family or children are sufficient
• The psychiatric condition must have arisen by sudden shock, therefore C must have experienced the events through their own unaided senses and not through TV or being informed by another

Question 15

rescuers and psychiatric harm (incl. case)

Answer 15

• Chadwick v British Railways Board - C helped in the aftermath of a train disaster and suffered psychiatric harm; claim successful
• Policy - nothing should be done to discourage rescuers from acting in emergency

Question 16

damage to property (incl. case)

Answer 16

Attia v British Gas - C’s house burned down due to negligence on part of D’s workmen. the parties to the case were in a commercial relationship, hence a high level of proximity existed between them

Question 17

psychiatric harm and the eggshell skull principle (australian authority)

Answer 17

Mount Isa Mines v Pusey - eggshell skull principle applied as while shock (to a person of normal fortitude) was reasonably foreseeable, C’s reaction was exceptionally severe (acute schizophrenia)

Question 18

initial primary/secondary victim case

Answer 18

• Page v Smith - C was a primary victim - ‘one directly involved in an accident’
• becuase C was a primary victim mental injury need not be reasonably foreseeable
• reasonable foreseeable physical injury would provide C with a sufficient bases in which to ground their claim

Question 19

what is a secondary victim?

Answer 19

• someone who suffers psychiatric injury as a consequence of witnessing or being informed about an accident that involves another
• MUST be psychiatric injury; cannot be anything else
• control devices (i.e. those in Alcock) are employed to limit the circumstances in which claims can successfully be advanced

Question 20

primary/secondary victims in the hillsborough disaster (incl. case)

Answer 20

• White v South Yorkshire Police CC - a rescuer-claimant could only be a primary victim where he objectively exposed himself to [physical] danger or reasonably believed he was doing so’
• The officers in this case arrived at the scene in the aftermath of the disaster hence they were not exposed to harm
• Policy: to decide in favour of the police would have involved extending the law and would be unjust to the Cs in Alcock (floodgates); further expansion in this area of negligence is a matter for the legislature, not the judiciary

Question 21

Lord Goff’s dissent in White - doctrinal inconsistency and restriction

Answer 21

• Page v Smith - where reasonably foreseeable harm was a sufficient condition of liability’. However the Lords in White turned it into a necessary condition of liability restricting the people who could bring claims
• Chadwick v British Railways Board - neither objective exposure to physical danger nor reasonable fear of danger were required to award the rescuer C redress

Question 22

what were the competing policy considerations between Lord Steyn and Lord Goff’s judgments in White?

Answer 22

• Lord Steyn emphasises (i) the need to avoid, and (ii) imbalance and the danger of a flood of claims
• Lord Goff emphasises the judiciary’s long-standing readiness to accept claims by rescuers (e.g. Chadwick) and searchers (Wagner v International Railway Co)

Question 23

broad themes in Lord Steyn’s speech in White

Answer 23

• ‘Thus far and no further - don’t generate further uncertainty or policy-related difficulties
• Arbitrary line-drawing - ‘the law… is a patchwork quilt of distinctions which are difficult to justify’
• Negligence law is an ‘imperfect system of justice’ - it associates principle with justice

Question 24

example of a failed secondary victim claim

Answer 24

• Hunter v British Coal - C after hearing that his co-worker might be dead and thought he was responsible developed clinical depression
• CA rejected the claim because C was not a primary victim
• C was also not a secondary victim as he was not in the area of real physical risk

Question 25

delay between accident and the psychiatric harm (incl. case)

Answer 25

- *Taylor v A Novo (UK) Ltd* - in assessing negligence liability towards secondary victims of psychiatric shock from witnessing the death of a loved one, where there is a period of delay between the accident causing the death and the time of death, there must be sufficient proximity of the psychiatric shock to the accident causing the death and not the death itself - policy consideration: to allow the C to recover as a secondary victim would be to establish liability rule that could be invoked by claimant's months or possibly years after a D's original wrongdoing

Question 26

academic commentary: the development of control devices in psychiatric injury claims

Answer 26

Conaghan and Mansell argue that the development of control devices in psychiatric injury claims has been 'somewhat haphazard'; they have acted without clear policy goals and have been instead motivated by the specific facts of the cases at hand. This makes them 'less defensible' when considered 'in terms of justice and basic common sense'.

Question 27

the courts on categorising claimants as primary or secondary victims (incl. case)

Answer 27

- *W v Essex County Council* - 'the categorisation of those claiming to be... primary or secondary victims is not... finally closed.' - the law is 'still to be developed in different factual situations' - judges have the responsibility to refine the definitions of these victims

Question 28

academic commentary: occupational stress claims

Answer 28

- Steele: employees who suffer occupational stress will be categorised as primary victims - this will be the case even in the absence of physical danger - 'the claimant... could be described as the primary beneficiary of the distinct duty to avoid psychiatric injury

Question 29

psychiatric injury and family relationships (incl. case)

Answer 29

- *Greatorex v Greatorex* - D caused a car crash and C (his father) was one of the firemen on the scene and suffered PTSD from the event - Policy factors: to impose a duty would limit individual freedom too far and deter people from using the emergency services, even in emergencies where they have severe injuries; it would also make litigation within the family very common - THINK! is this arbitrary line drawing?

Question 30

recent SC case on primary/secondary victims

Answer 30

- *Paul v Royal Wolverhampton NHS Trust* - Cs witnessed their father's heart attack and collapse ~14 months after the alleged negligent failure by D to perform coronary checks. Cs sued for psychiatric harm, appeal(s) dismissed - the SC provided clarification in respect of the *Alcock* criteria and rejected additional requirements implied by the courts in subsequent cases

Question 31

'control devices' which the courts in *Paul* sought to address

Answer 31

- **'Sudden shock'** - no requirement that C must establish they suffered a 'sudden shock to the nervous system. The courts viewed this as a 'crude mechanical model' - **'Horrifying event'** - there is no additional requirement alongside reasonable foreseeability that C must establish that the event they witnessed was 'horrifying'. This approach was criticised as being 'unavoidably subjective' and 'not susceptible to any proper answer' - **Proximity in time and space** -

Question 32

from the *Paul* judgment, why is the witnessing of an 'accident' legally significant?

Answer 32

1. An accident is defined as an external event that either causes harm or has the potential to cause harm; it is distinct from any actual injury that might result from it. Typically, an accident is understood as a specific and identifiable event that occurs at a particular time, in a specific location, and in a distinct manner. 2. The claimant should have been present at the scene, and have directly perceived the accident. This applies even if C's close family member, who was involved in the accident, does not actually suffer injury.

Question 33

*Paul* on remedies for psychiatric injury

Answer 33

- '[There is a] general rule that the law does not grant remedies [to a claimant] for the effects - whether psychological, physical or financial - of the death or injury of another person' - HOWEVER, 2 exceptions: (i) under the Fatal Accidents Act 1976 Ds can claim loss of support or bereavement; and (ii) cases in which 'the claimant has witnessed the wrongful death or injury (or threat of such death or injury) of someone they love'

Question 34

what were the grounds for the majority decision in *Paul v Royal Wolverhampton NHS Trust*?

Answer 34

1. *Paul* is a 'non-accident' case (and, therefore, not analogous to successful secondary victim claims) 2. 'We are not able to accept that the responsibilities of a medical practitioner... extend to protecting members of the patient's close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative' 3. 'To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role' (policy)

Question 35

Lord Burrows' dissenting judgment in *Paul*

Answer 35

- Burrows was critical of the 'accident'/'non-accident' distinction - he held that the relevant event must have occurred as a result of D's breach of duty to the deceased (as in these cases) - it must be reasonably foreseeable that C would suffer psychiatric illness in these circumstances - he argues for a more principled development of the law, rather than the more policy-based approach of the majority