Negligence: Duty of Care - Psychiatric damage Flashcards
Introduction
- can claim where psychiatric damage is consequential to physical harm.
- pure psychiatric damage raises 3 difficult situations:
1. fraudulent claims and difficulty to identify genuine psychiatric illness - used to be just for nervous shock, but now recognises variety of psychiatric conditions not result of sudden or shocking event
2. whether recovery for psychiatric damage should be tied to danger of physical harm or whether independently recoverable.
3. floodgates issue - major disaster witnessed by large numbers of people who are traumatically affected by sight. Hillsborough disaster best example. - re proof of psychiatric damage, refer to medical science. Re link to physical and psychiatric damage, have tended to say at least some threat of physical harm needed
-Rothwell v Chemical & Insulating Co Ltd (Re Pleural Plaques Litigation) 2007 - H of L held symptomless physical condition that doesnt impair bodily function doesnt constitute recoverable physical harm
Primary and secondary victims
- prevent floodgates problem, Ct draw very important distinction between primary and secondary victims.
- Primary victim someone who suffers psychiatric damages because they were exposed to the damager of physical harm - in order to establish duty of care, Cl must prove it was reasonable foreseeable that actions of Def could cause physical harm.
-Donachie v The Chief Constable of Greater Manchester 2004 - officer suffered shock after being required to attach tagging device to suspect car, device was faulty and took 9 attempts to attach increasing fear of discovery and assault. Ct of A found Cl was primary victim, where foreseeable injury was physical, but injury psychiatric, immaterial whether psychiatric damage foreseeable. - secondary victim suffers psychiatric damage as result of witnessing traumatic event, without being in damager of physical harm themselves. - secondary removed and merely witness incident.
- primary victims normally able to establish duty of care easily, secondary will be able to do so of they fulfil certain demanding conditions
Was Cl in physical danger?
-First case was Dulieu v White 1901 - Def drove horse and cart into pub just missing Cl who was behind bar and pregnant - as a result, gave birth prematurely - Ct made clear not evert case would Cl recover for nervous shock but would in cases where was reasonable fear of immediate personal injury to Cl - now would be primary victim
-Page v Smith 1995 , said primary victim who includes someone who at risk of physical harm. - Q whether some form of physical harm to Cl reasonably foreseeable, if so can recover for psychiatric damage caused by Cl negligence even if no physical injury. Now no requirement for “fear”
-Hinz v Berry 1970 - Cl, husband, 4 kids and 4 foster kids on Country outing, Cl and 1 kid left others to pick flowers, Def lost control of car and crashed into others killing husband and injuring kids/
- Hearing sound, Cl turned around and saw scene of disaster - held could recover comp for psychiatric damage suffered witnessing events, despite never in danger herself. Today, would be secondary victim as not in position where physical harm was reasonable foreseeable.
Witnessing event happening to others
-Hambrook v Stokes 1925 - lorry left unattended lost control down steep hill, Cl suffered psychiatric damage after seeing lorry as feared for safety of her kids, who she believed to be in path. Def held liable on grounds that mother suffered shock as a result of what witnesses with her own unaided senses.
- mother herself not at risk of physical harm, J recognised close tie of relationship between parent and child gave rise to foreseeability of psychiatric damage suffered by mum fearing safety of kids.
- if close relationship not present, unlikely to be owed duty of care.
-Bourhill v Young 1943 - Cl alleged suffered psychiatric damage as result of being in vicinity of accident caused by Def and victim killed. She didnt see crash but heard noise and saw blood on road after, she also outside range of what considered foreseeable risk to herself so couldnt be consequential to risk of foreseeable physical injury.
- gave rise to principle that cases re secondary victims, psychiatric harm had to be foreseeable in person of reasonable fortitude
-McLoughlin v O’Brian 1983- Cl husband and 3 kids involved in RTA caused by Def negligence, she was told about it hour or so later and at hospital saw injuries to family and suffered psychiatric damage. Family in same state as had been picked up, not been cleaned up and Ct said although didnt witness it per se, held she witnessed the immediate aftermath so held could recover for damages.
- Lord Wilberforce said foreseeability alone not enough, had to be sufficiently close relationship and close physical proximity in time and space to accident but duty could extend beyond those who saw immediate aftermath - if person didnt witness or come upon aftermath, but had news communicated by 3rd party not sufficient proximity.
-Lord Bridge and Scarman rejected, and said that relationship and closeness relevant but not conclusive, so would be possible for person who read of death of close relative or witnessed event on TV involving close relative could recover.
- not provided clear definition of “immediate aftermath” but did conclude that being told about accident by 3rd party is outside scope of any potential duty of care.
-Alcock v Chief Constable of South Yorkshire Police 1991 - claim for psychiatric damage brought by several relatives and friends who either saw events, came upon immediate aftermath or watched on TV/radio. Cl argued reasonable foreseeability of shock induced psychiatric damage should be only test for determining existence of duty of care.
- Law Lords dismissed appeals - confirmed that for secondary victims must have suffered recognised psychiatric illness caused by “shock” as “sudden appreciation by sight or sound of a horrifying event which violently agitates the mind. Following criteria has to be met to establish liability for secondary victims:
1. test of reasonable foreseeability of psychiatric illness arising from close relationship of love and affection between secondary victim and primary victim of Def neg
2. test of proximity in time and space between secondary victim and accident caused by Def or its immediate aftermath.
3. psychiatric damage had to result from secondary victims either seeing or hearing accident with their own unaided senses.
Witnessing events (2)
- when applying, person suffering psychiatric damage as result of being told by 3rd party wouldnt satisfy test of proximity.
- said might be exceptional circumstances which perception of events on simultaneous TV broadcast would meet requirement of direct visual perception - but for Hillsborough disaster broadcast of images not depict suffering or dying of recognisable individuals as would have breached broadcasting guidelines.
- class of person shouldnt be limited by reference to certain specified relationships but could include other relationships where love and affection was proved - closeness has to be proved by Cl.
- generally accepted that theres a presumption of sufficiently close relationship between spouses, civil partners and parent/child - in others Cl needs to prove was relationship of love and affection.
-White v Chief Constable of South Yorkshire Police 1999 - all but one Cl present and helped those killed and injured
-Ct of A decision (under Frost v Chief Constable of South Yorkshire Police 1997) held Cl status as employees put them in protected category of victims, Law Lords revered decision and said that rules restricting recovery of comp by secondary victims for psychiatric damage applied to those injured in course of employment as well. - rescuers show sufficient proximity by showing their safety also at risk - said new control device in Alcock took form of prerequisite to recovery by primary victim that must be in range of foreseeable physical injury.
-Chadwick v British Transport Commission 1967 - Cl assisted at scene of train crash for hours and suffered psychiatric damage - recovered damages for it, but at first glance difficult to reconcile that Cl in Chadwick able to recover comp with Cls in White as were strangers in the cases. Difference is in Chadwick was a rescuer in physical damage as he was crawling around in wreckage and would now be primary victim. - McFarlane v EE Caledonia Ltd 1994 - Ct of A applied Alcock and held Cl couldnt recover as secondary victim unless all elements in Alcock present. Cl not primary victim but was in vicinity of Piper Alpha disaster aboard a vessel that went to victims of fire, but never close enough for physical safety to be endangered.
Involuntary Participants
-Dooley v Cammell Laird 1951 - could be sufficiently close relationship between workmates if Cl, as result of Def neg, was put in position of believing that they had been involuntary cause of another’s death or injury. Cl crane driver suffered shock when rope broke and crate fell into hold of ship where he believed his workmates were working.
- suffered psychiatric damage and was allowed to recover damages - in Alcock kinds of “involuntary participants” were considered special category of victim who could recover for psychiatric harm.
-Hunter v British Coal 1998 - miner thought he had caused accident that killed workmate but was denied comp by Ct of A as hadnt actually witnessed accident so no liability for “survivors guilt”
-W v Essex County Council 2000 - Cl foster parents who had told local auth that they were not prepared to foster child suspected of perpetrating sexual abuse as had own children to consider. Social worker placed 15year old boy who she knew was under investigation for alleged sexual offences.
- Cl alleged boy committed serious sexual offences against own children and sued local auth for psychiatric harm caused. Ct of A upheld decision to strike out claim on basis they were secondary victims and didnt meet Alcock requirements.
-H of L allowed appeal and noted categories of people who could claim harm not finally closed, was arguable duty might be owed to parents as involuntary participants as they felt responsible for having brought abuser into home and not having realised sooner.
Foreseeability of Harm
- when Ct applies test of foreseeability of shock to secondary victim it assumes Cl is person not particularly susceptible to that type of injury - excludes from recovery those abnormally sensitive but if in circumstances person of reasonable fortitude would have suffered shock then sensitive person may be able to recover full extent of injuries, even though more extensive than those suffered by person of normal fortitude (Brice v Brown 1984)
- not uncommon for close relative to experience period of grieving following death of loved one, not normally compensated but if so severe to constitute pathological grief disorder Cl may be able to recover.
-Vernon v Bosley (No.1) 1997 - Cl present while attempts made to salvage car containing bodies of his daughters from river. Om facts Ct found impossible to distinguish between effect on father seeing scene of accident knowing children almost certainly dead, and natural effects of grief and bereavement following deaths confirmed. Abnormal grief reaction shouldnt be discounted by normal grief expected.
Shock
- requirement that psychiatric damage should flow from shocking event rather than gradual realisation considered in North Glamorgan NHS Trust v Walters 2003 - mother present when 10 month old baby had epileptic fit while treated for liver failure, for following 36 hours stayed with him as condition deteriorated until decision made to turn off life support. Baby’s liver failure caused by admitted negligence of hospital and during last hours mum given inaccurate info
- on death, suffered symptoms of recognised psychiatric illness but claim appeared to be dependent on proof her condition was attributable to shock rather than effect of period of time 36hours before he died. Ct of A found for mother and took interpretation of horrifying event criteria for successful claim for psychiatric damage brought by secondary victim. Argued 36 hours should be seen as one long event as she lived through it, and the stages of tragedy came together as one.
-Ward v Leeds Teaching Hospital 2004 - H Ct held liability for psychiatric damage required shocking event of particularly horrific nature and death of loved one in hospital didnt meet that requirement unless exceptional circumstances. - in this case, Cl kept fully informed of patients state of health and nothing would constitute a shock.
- Upheld by Ct of A in Liverpool Women’s Hospital v Ronayne 2015 - husband witnessing wife’s condition decline following operation, whilst alarming and distressing wasnt sufficient to give rise to duty of care to him as secondary victim
- exception to requirement of shocking event seen in cases involving workplace stress, where close relationship between Cl and Def employer - imposes more stringent duty of care.
Immediate aftermath
- in determining proximity, H of L in Alcock looked at physical and temporal connection between Cl and the accident or immediate aftermath of the accident.
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Atkinson and Another v Seghal 2003 - Cl daughter killed as result of Def neg driving. Cl had been looking for daughter, arrived at police cordon around the accident to be told by police daughter dead and she later saw body at mortuary. First instance claim failed on basis Alcock precluded claims for shock resulting from being told of loved ones death and events in mortuary outside of immediate aftermath.
-Ct of A found immediate aftermath was extended from moment of accident to moment Cl left mortuary. Alcock didnt restrict claims for shock to those resulting from frozen moment in time, event may be made of numerous components provided retain sufficient proximity to accident. Purpose of visit to mortuary wasnt just to identify body, but also complete story for Cl who didnt want to believe daughter was dead.
Extension of primary events?
- if Cl primary victim, req to overcome hurdles for recovery of psychiatric damage by secondary victim are avoided.
-AB and Others v Leeds Teaching Hospital NHS Trust and Others 2004 - parents of children whose organs removed and disposed of after post-mortem to determine cause of death sought damages for psychiatric damage suffered by later realising children been buried with organs missing. Ct found parents to be primary victims of failure of doctors to explain properly purpose of post-mortem and fact that organs might be disposed of.
-importance of classification of Cl as primary or secondary victim shown in Butchart v Home Office 2006 - B unstable and threatened to kill himself when taken into custody, put in cell with man known to be suicidal and did commit suicide. B was told suicide was his fault. Suffered psychiatric damage and Ct of A held B’s claim disclosed possible cause of action - argued B was secondary victim who should be required to establish tests in Alcock but Latham LJ saw B as primary victim. Q was whether easily established duty to take care of safety of B while in custody extended to taking reasonable care for his psychiatric wellbeing
-Greatorex v Greatorex 2000 - Def injured by motor accident that was own fault, dad one of fire officers sent to scene to release trapped motorist from vehicle (his son), father went to suffer PTSD he claimed against son for damages . - Held duty of care couldnt arise, several policy reasons, for ex would lead to undesirable debates as to fault and responsibility within family would lead to breakdown in family and exacerbated litigation process.
-Law Commission made recommendation in Report on Liability for Psychiatric Illness (Law Com No 249) that legislation should include situation where Def has negligently harmed himself but provision would only be if Def acted intentionally. - Cazalet J pointed out paradox that would arise if enacted proposal - would be in Def’s and insurers interest to argue that he acted intentionally and in Cl interest to prove negligence.
- Paul & Ors v Wolverhampton NHS Trust 2022 - Ct of A dismissed claims for secondary victims who witnessed traumatic death of loved one following negligent failure to diagnose life-threatening conditions - deaths occurred after neg failure and Ct of A dismissed claims on basis not sufficient proximity in time and space for Cl to succeed as secondary victims.
