Negligence: psychiatric injury Flashcards
Psychiatric injury
Psychiatric injury is the term usually used in negligence cases to describe an injury that affects the
mind, rather than the body, or a physical injury brought on by an effect on the mind.
Page v Smith [1996]
The claimant had suffered from ME over a period of time and was in recovery when he was involved in a minor car accident due to the defendant’s negligence. The claimant was not physically injured in the collision but the incident triggered his ME and had become chronic and permanent so that he was unable to return to his job as a teacher. He was successful at his trial and awarded £162,000 in damages. Held: Provided some kind 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 thin skull rule.
Primary victims
those who are physically injured in the event that the defendant has caused, as well as psychological injured as a result of it. These are called primary victims;
Primary victims 2
those who are put in danger of physical harm, but actually suffer only psychiatric injury. These
are also called primary victims;
secondary victims
those who are not put in danger of physical injury to themselves, but suffer psychiatric injury as
a result of witnessing such injury to others; these are called secondary victims. A duty of care to
secondary victims will arise only if they can satisfy very restrictive requirements.
Dulieu v White & Sons (1901).Primary victims
The claimant was
serving in a pub when one of the defendant’s employees negligently drove his van and horses into the
premises. The claimant feared for her safety, and although she was not actually struck she was badly
frightened and suffered a miscarriage as a result. The defendant was found liable even though there
was no physical impact, as he could have foreseen that the claimant would have suffered such shock.
Simmons v British Steel plc (2004).Primary victims
The claimant had been physically injured in a workplace accident, and as a result of his shock and anger at what had happened to him, he developed a severe skin condition. This led to him having to take a great deal of time off work and, as a result of that, he developed a depressive illness. The House of Lords held that the employers were liable for the skin condition and the depressive illness, as well as the original injury. They had exposed him to a foreseeable risk of physical injury, and they were therefore liable for all the injuries that resulted from that risk. It did not matter that the actual type of the injuries
was not foreseeable.
White and Others v Chief Constable of South Yorkshire (1998) Secondary victims
White and Others (1999) establishes that sufferers of psychiatric injury who are not either physically
injured or in danger of being physically injured are to be considered secondary victims. Among the
important cases that have fallen within this group are claims made by:
● people who have suffered psychiatric injury as a result of witnessing the death or injury of friends,
relatives or work colleagues;
● those whose psychiatric injury has been caused by them unwittingly bringing about death or injury
to others, where the ultimate cause was someone else’s negligence (known as ‘unwitting agents’);
● those who have suffered psychiatric injury as a result of acting as rescuers, both those who have
voluntarily given assistance to others in danger, and those who have done so as a result of their
jobs, such as police officers.
Alcock v Chief Constable of Yorkshire (1992).
The police allowed a large crowd of football supporters into an already crowded stand
which was surrounded by a high perimeter fence. In the chaos that followed, 95 people
were crushed to death. A large number of claims were made by those present at the
scene and those who had viewed the events on the television. Claims were made by
various family members and friends of those present.
● the nature and cause of the psychiatric injury;
● the class of person into which the claimant falls, in terms of their relationship to the primary
victim(s);
● the claimant’s proximity to the shocking incident, in terms of both time and place.
The strength of restrictions that these tests place on claims can be seen in the fact that every single
claimant in Alcock failed on at least one of them.
The nature and cause of the psychiatric injury
Like primary victims, secondary victims must prove that their psychiatric damage amounts to a
recognized psychiatric illness. They are also subject to an additional requirement, that the psychiatric
damage must have been caused by the claimant suffering a sudden and unexpected shock caused
by a ‘horrifying event’.
Sion v Hampstead Health Authority (1994),Not a sudden shock
the claimant had developed a stress-related psychiatric illness as a result of watching his son slowly die
in intensive care as a result of negligent medical treatment. It was held that as the father’s psychiatric illness had not been caused by a sudden shock, he could not recover damages for it.
North Glamorgan NHS Trust v Walters (2002).
Here the claimant was the mother of a baby boy who died after receiving negligent treatment for which the defendants were responsible. The little boy, Elliott, was ill in hospital and his mother was with him. Unknown to her at the time, the hospital had misdiagnosed his illness. She woke up to find him choking and coughing blood, and was told by the doctors that he was having a fit, but that he was very unlikely
to have suffered any serious damage. Later that day, he was transferred to another hospital, where
she was told – correctly – that he had in fact suffered severe brain damage and was in a coma; she
was asked to consider switching off his life support machine. She and her husband agreed to this
on the following day. The events caused her to suffer a psychiatric illness, but the hospital argued that they were not liable for this as it was not caused by a sudden shock, but by a sequence of events that took place over 36 hours. The Court of Appeal disagreed: it said that the ‘horrifying event’ referred to in
Alcock could be made up of a series of events, in this case, witnessing the fit, hearing the news
that her son was brain-damaged after being told that he was not, and then watching him die. Each
had their own immediate impact, and could be distinguished from cases where psychiatric injury
was caused by a gradual realization that a child was dying.
The class of person If a secondary victim can prove that, as a result of the defendant’s negligence, they have suffered a recognizable psychiatric injury because of a sudden shock, the next hurdle they face is to prove that they fall within a class of people that the law allows to claim compensation for such injuries.
The key cases have focused on four possible classes of people:
● relatives and friends of those killed or injured as a result of the defendant’s negligence;
● rescuers at the scene of accidents;
● employees of the party causing the accident;
● ‘unwitting agents’ – people who cause death or injury to others, not through their own fault
but as a result of someone else’s negligence.
Proximity
The third test that secondary victims must pass in order to have a claim concerns proximity, which
in this case means how close they were to the shocking event, in terms of both time and place.
McLoughlin v O’Brian.(Proximity)
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. Unfortunately one of the children was killed on impact. An ambulance took the injured parties to hospital. Another of the claimant’s sons was a passenger in a car behind the family. The driver took him home and told his mother of the incident and immediately drove her to the hospital. She saw her family suffering before they had been treated and 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 Court of Appeal held that no duty of care was owed. She appealed to the House of Lords. Held: The appeal was allowed and the claimant was entitled to recover for the psychiatric injury received. The House of Lords extended the class of persons who would be considered proximate to the event to those who come within the immediate aftermath of the event.
