Negligence: Duty of Care ‘Special Scenarios’ (IV) – Psychiatric Illness

Question 1

Alcock v Chief Constable of South Yorkshire (1992)

Answer 1

A primary-victim claimant: “involved either mediate or immediately, as a participant.”

A secondary-victim claimant: A close tie of love and affection + witness the event with own unaided senses + proximity to the immediate aftermath.

Lord Oliver insists that ‘immediate aftermath’ = one must be within the ‘immediate vicinity’. Therefore, family members who have driven across the country to get to Sheffield were deemed to have taken ‘too long’ (contrast this with McLoughlin).

Question 2

White v Chief Constable of South Yorkshire (1999) [also seen in the Formulation of Duty deck]

Answer 2

Rescuers are excluded from the ‘primary victim’ category of psychiatric injury claims - largely a policy decision (Caparo analysis).

Question 3

Bourhill v Young (1943)

Answer 3

Woman miscarries due to a disturbing accident –> not of ‘customary phlegm’, and therefore cannot sue for psychiatric injury (pre-Alcock requirement).

Question 4

Dulieu v White (1901)

Answer 4

Horse/carriage crashes into a pub, and woman miscarries: allowed to make a claim in psychiatric harm here (sudden, immediate - a pre-Alcock requirement).

Question 5

Page v Smith (1995)

Answer 5

Identifies primary victims as being within the ‘zone of danger’.

Reasonable foreseeability is taken into account for when assessing primary victim duty of care (i.e. physical injury here was foreseeable, so the psychiatric injury was as well - Caparo analysis).

No need to show ‘reasonable fortitude’ for primary victims. Take your victim as you find them.

Question 6

Merthyr Tydfil County BC v C (2010) [also seen in the Omissions deck]

Answer 6

Primary victims can be ‘guilt-ridden’ - e.g. child abuse cases and policy/operational mistakes.

Question 7

Greatorex v Greatorex (2000)

Answer 7

A person cannot be liable in negligence to a close family member for any self-inflicted harm that, having been witnessed by another family member, had caused them to suffer lasting psychiatric damage.

Question 8

Rothwell v Chemical & Insulating Co. (2008) [also seen in the Actionable Damage deck]

Answer 8

‘Fear of the future’ -type claimants are excluded from the primary victim categorisation (Rothwell here is utilised as an example of a pleural plaques case).

Question 9

Young v Charles Church (1997)

Answer 9

Proximity is taken into account for when assessing primary victim duty of care (Caparo analysis).

Question 10

Alexander v Midland Bank (1999)

Answer 10

No need to establish shock for primary victims.

Question 11

McLoughlin v O’Brian (1983)

Answer 11

Two hours deemed enough to be within the ‘immediate aftermath’; ‘on the margin’ of what was allowable (Brown-Wilkinson LJ).

Question 12

Johnstone v Bloomsbury HA (1992)

Answer 12

Where employees are overworked to the point of mental illness a claim is permitted.

Question 13

Hatton v Sutherland (2002)

Answer 13

Hale LJ sets out guidance (16 principles) to help determine circumstances when an employer will be liable for psychiatric harm caused by stress at work.

Question 14

Melville v HO (2005)

Answer 14

A duty arises where either:

a) A particular employee was vulnerable to a stress-induced illness (and the employer knows of this).
b) It was objectively foreseeable, to a reasonable employer, that psychiatric injury could result from a particular task.

M had to cut off dead bodies in prisons (due to hanging themselves) for 8 years. Held that (b) was satisfied.

Question 15

Pratley v Surrey CC (2003)

Answer 15

A duty arises where either:

a) A particular employee was vulnerable to a stress-induced illness (and the employer knows of this).
b) It was objectively foreseeable, to a reasonable employer, that psychiatric injury could result from a particular task.

C had to deal with deeply stressful workplace situations (profound disabilities). He sought to hide mental health issues. Therefore, there was no liability, according to (a).

Question 16

Yapp v FCO (2014)

Answer 16

A duty arises where either:

a) A particular employee was vulnerable to a stress-induced illness (and the employer knows of this).
b) It was objectively foreseeable, to a reasonable employer, that psychiatric injury could result from a particular task.

C was summarily dismissed to due false allegations of serious sexual misconduct from a political rival. The dismissal was publicised very widely, causing severe clinical depression. Successful in breach of contract suit; but tort claim failed as despite satisfying (b), the case had to be in an ‘exceptional’ character (employing the reasonable fortitude language). In other words, it should be exceptional that an apparently robust employee with no history of mental ill health would develop a psychiatric condition as a result of a setback at work.

Question 17

AB v Thameside and Glossop HA (1997)

Answer 17

Example of a case where the claimant does not ‘fit’ into any established category.

C told by telephone that they might be HIV positive –> psychiatric injury? Held, the information given over the phone was not negligible despite it being reasonably foreseeable that a negative reaction would occur.

Question 18

Butchart v HO (2006)

Answer 18

Example of a case where the claimant does not ‘fit’ into any established category.

Prisoner on remand in prison cell –> identified as suicide risk (and put into a cell with another suicide risk); witnesses a suicide.

Duty of care held.

Question 19

Attia v British Gas (1988)

Answer 19

Example of a case where the claimant does not ‘fit’ into any established category.

First case where a duty of care was established in relation to psychiatric injury and property damage (a fire destroyed the house; C witnessed a fire destroying all her belongings).

Bingham LJ: ‘modest extension’ of duty of care to include scenarios such as these.

(Decided before Alcock; whether this case would now be followed is a tricky question (as people who watched the Disaster on TV were not successful))

Question 20

Leach v CC of Gloucestershire Police (1999)

Answer 20

C suffers PTSD due to being a responsible adult witnessing the confession of dozens of murders.

Held to be no duty of care (compare especially with Butchart - where watching a severely distressing event occur in front of you led to a claim).

Question 21

AB v Leeds Teaching Hospital NHS Trust (2005)

Answer 21

A case where this is no ‘immediate victim’ per se.

Hospital harvested dead babies’ organs without consent.
Trauma in finding out about this.

Held: Organ removal when a post mortem had been ordered by the coroner was not tortious. In English law, there is no known case involving the tort of wrongful interference with a body, and that claim failed.

As to negligence, though the primary doctor-patient relationship was with the child, ‘taking consent for a post-mortem was not just an administrative matter bringing a doctor into contact with a mother. It was… part of the continuing duty of care owed by the clinicians to the mother following the death of a child’ (i.e. there was a duty of care).

Question 22

Farrell v Avon HA (2001)

Answer 22

C hears new baby has been born. When he arrived, he told baby is dead (but then it turns out that that wasn’t his baby!).

Caparo basis here –> ‘foreseeability’ construed in terms of the possibility of psychiatric injury.

C succeeded in the claim. As a primary victim, a claim for psychiatric injury was possible even where no physical injury was risked. A real risk of suffering a recognised psychiatric disorder was sufficient.

Question 23

W v Essex CC (2000)

Answer 23

The categorisation between primary and secondary victims is still not “finally closed. It is a concept still to be developed in different factual situations” (Lord Slynn).

Question 24

Tredget and Tredget v Bexley Health Authority (1994)

Answer 24

This case shows the difficulties of the primary/secondary victim distinction.

Baby is asphyxiated during childbirth and dies 24 hours later due to hospital negligence.
Profound psychological mourning - but are the parents primary or secondary victims?

Secondary victim analysis used here (and C’s won their claim). An example of how a ‘shocking event’ can be ‘drawn out’.

Question 25

Walters v North Glamorgan Trust (2002)

Answer 25

This case concerns direct perception and psychiatric injury.

C did not ‘see’ when the negligent act occurred, but the result of it (seizures of the baby) was held to be sufficient for a duty of care.

Question 26

Taylor v Somerset HA (1993)

Answer 26

The plaintiff’s husband had suffered a heart attack at work and soon died at the defendant’s hospital. She went to the hospital within an hour and was told of his death by a doctor about 20 minutes after her arrival. She was shocked and distressed. She identified the body at the mortuary. The defendants had been treating him for many months and had negligently failed to diagnose or treat his serious heart disease. It was admitted that she had suffered nervous shock (ie psychiatric illness) as a result of what she had heard and seen at the hospital.

Held: The claim failed. It did not fall within the ‘immediate aftermath’ principle as her husband’s body bore no signs of violent injury. The death was instead the final consequence of negligence by the defendants many months earlier. The ‘immediate aftermath’ extension had been introduced as an exception to the general principle established in accident cases that a plaintiff could only recover damages for psychiatric injury where the accident and the primary injury or death caused by it occurred within his sight or hearing.