NEGLIGENTLY INFLICTED PSYCHIATRIC HARM Flashcards
Definition & cases to support?
Causation = ‘was the psychiatric illness caused by the D’s negligence?’
Remoteness = is the D liable for this type of harm?
Duty = in what circumstances ought a D who causes harm of this type be held responsible?
Definition = mental distress alone not actionable in negligence.
LYNCH V KNIGHT =
Mental distress alone not actionable in negligence. (e.g anxiety)
REILEY V MERSEYSIDE =
Couple distressed from being trapped in a lift - no damages for mental distress alone.
JOHNSTON V NEI INTERNATIONAL COMBUSTION =
Anxiety as a result of knowing a disease may develop in the future, the court said its symptomless, itself wasn’t harm, the claim was therefore anxiety alone - applying the rule - case failed.
——> Mental distress consequent upon physical injury actionable; if C sustains physical damage, psychiatric illness actionable e.g being in a fire and sustains burns and distress.
——> Anxiety, stress or grief suffered as a result of harm to a loved one not usually compensated - exception of a fixed sum award to spouses/parents of diseased child under FAA 1976.
Alcock and others v Chief Constable of South Yorkshire police =
Lord Oliver ‘grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury must be considered as ordinary and inevitable incidents of life which must be sustained without compensation’.
Recognised psychiatric illness cases and points?
- Must demonstrate that they are suffering from R.P.I. would have to have expert evidence that their condition is an RPI.
ATTIA V BRITISH GAS =
‘All relevant forms of mental illness, neurosis and personality change’ - psychiatric illness alone, not physical aswell. Must first put claimant into category.
Categorisation of claimants:
- Primary/Secondary/Relational claimants.
Primary =
Someone who is involved in the event that is caused by D’s negligence; a participant who sustained psychiatric consequence but not physical.
(PAGE V SMITH/WHITE + OTHERS V CHIEF CONSTABLE OF SY POLICE)
Secondary =
Not directly involved in event caused by D’s negligence, but develops a RPI in response to the harm caused to someone they care about.
(Alcock and others v chief constable of SY police)
- First question is whether claimant is a primary or secondary victim?
- Need to be one or the other
- Different rules apply
- Additional limitations if secondary victim
- If not primary victim can only establish duty if fulfil additional requirements applicable to secondary victims
PRIMARY VICTIMS - cases and points?
“Participant who was directly involved in the event and within the range of foreseeable physical injury” - Lord Lloyd
- Lord Oliver in Alcock said primary victims are ‘those who are involved in an accident’; secondary victims those who are not involved but suffer from what they see or heard.
White & others case = Police officers suing employer - suffered psychiatric harm from saving others.
Lord Hoffman = primary victim if ‘within the range of foreseeable physical injury’
Lord Steyn = primary victim if ‘objectively exposed himself to danger or reasonably believed that he was doing so’
Applied in:
CULLIN V LONDON FIRE AND CIVIL DEFENCE AUTH=
- claim for psychiatric injury, fire fighters in fire caused by arson, colleagues died, argued they died due to negligence of superior - allowed them to enter unsafe building, claimants objectively believed they were exposed to physical danger - formation of Lord Steyn.
- If not in zone of danger, seoncdary victim -
FAGAN V GOODMAN =
D caused death of motocyclist - claimant was behind and witnessed collision, got out to help, court said not a primary victim as not directly involved or objectively exposed to danger - nor reasonable for her to believe she was in danger - not in zone of danger.
AB and others case =
(representing 2140 c’s) - failue of doctors to obtain consent from parents to the removal of organs when performing post-mortems on children that died - are these parents primary victims?
- Primary victim because the foreseeability test can be applied before event
- children are not primary v’s, must be PV before SV
- closeness between doctor and parent.
Farrell v Merton =
- Hospital admitted negligence in form of delay of delivering baby so was born with brain damage, mother unaware as sedated, informed next day, judge said treating C as primary vicitm.
- ‘The trauma of birth’ encompasses not only the events in the operating theatre but also the position up to and including the first sight of baby and the realisation of his disability - I therefore treat her as a PV’
Farrell v Avon =
- Held dead baby, wasn’t his baby, was told his baby was alive, treated as PV as C was physically involved and no other was.
YAH v Medway NHS Trust =
Psychiatric injury of mothers - negligence lead to babies being born with brain damage - because injuries to child occurred shortly prior to/during birth - mothers = PV.
- Cases factually different to White - D is mostly negligent hospital - pre-existing relationship between D and C which is the key to the C being able to demonstrate they are a PV.
(Primary Victims) In what circumstances will D owe a duty of care?
- Once we have established claimant is the primary victim, we need to know what circumstances the D owe the C a duty of care.
- Question of ‘was personal injury reasonably foreseeable’ - not going to distinguish different types - it covers both physical and psychiatric.
PAGE V SMITH (road accident caused by negligence, suffered psychiatric harm)=
Lord Browne - ‘any driver of a car should reasonably foresee that if he drives carelessly, he will be liable to cause injury, either physical/psychiatric or both.
AB and OTHERS =
Question that needed to be asked was ‘was psychiatric harm a reasonably foreseeable consequence of D’s act?’ (yes)
Secondary Victims - does the D owe the C a duty of care?
- Where claimant sustains psychiatric harm as a consequence of injury/endangerment of somebody they care about as a result of D’s negligence.
- Claimant must suffer psychiatric illness as a consequence of death, injury or endangerment of another (primary victim) not the D.
GREATOREX V GREATOREX =
Claimant (firefighter) attended accident that had been caused by D’s negligence - D was his son - claimant suffered PTSD meaning no longer work - because he arrived at scene as a rescuer, after accident had occurred, C was not a primary victim but a secondary - D did not owe a duty of care, it must arise as a consequence of the response to the death, injury, or endangerment of the PV (not the D).
Limitations upon liability for psychiatric harm to relational claimants. (secondary v)
Mcloughlin v O’Brian =
C’s husband and 3 children in accident, arrived at hospital to find 1 dead, saw the rest of family in obvious state of distress before they had medical attention - the immediate aftermath of the accident.
- The D did owe her a DOC but 2 distinct approaches:
1) Did D foresee that claimant would suffer psychiatric harm as a consequence? Should be measured by spatial, physical or temporal limits (space, time distance, nature of injuries and relationship of the plaintiff to immediate victim) - Approach by Lord Bridge.
2) Lord Wilberforce/Edmund-davies - ‘if reasonably foreseeable, 3 further considerations - the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused.
^ Wife had seen them before they had received any treatment, she was ariving at the immediate aftermath - if she had arrived a little later, would’ve been the aftermath - not immediate.
Lord Bridge Approach: preferred by lower courts… (cases)
Wigg v British Railways Board =
Claimant was train driver who searched for injured person on railway - found him dead and comforted him - sustained psychiatric injury - no close relationship between driver and person on lines.
Attia v British Gas =
- BG installing heating in C’s home, caught fire due to carelessness, CoA said: was it foreseeable?
Hevican v Ruane =
C informed son in accident - identified body - Lord Bridge - was it foreseeable? wilberforce - no DOC owed to claimant.
Ravenscroft = DOC owed to C who had arrived at hospital and told son was dead - reversed on appeal - what was decided was HOC decision in Alcock.
ALCOCK AND OTHERS V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE =
- concerned actions brought by relatives of hillsborough - police admitted liability to the those who suffered.
- Question was: existence of DOC owed by police to relatives who suffered psychiatric injury of relatives who died/got injured?
- Some claimants were at football ground in different part, some learnt of it by TV, radio, some identified bodies.
HOL In ALCOCK =
- To establish D owed a DOC to secondary victim who suffers psychiatric harm as a consequence of D’s careless act, establish:
1) was psychiatric harm reasonably foreseeable?
2) was there a relationship of proximity between C & D?
Psychiatric harm must be reasonably foreseeable… (alcock) (secondary victims)
- Existence of a close tie of love and affection between the claimant and primary victim.
- Presumption in favour of such a relationship existing between spouses/parent and child.
- In other cases (not husband/wife etc), it was for the claimant to prove it, but not rule out claim by bystander.
- HOL said they wouldn’t limit claims to parent/child, husband/wife, they said D’s ought to contemplate the types of relationship where there are love and affection, are numerous and varied.
- Lord Keith - ‘it is common knowledge that such ties exist, and reasonably foreseeable that those bound by them may in certain circumstances be at risk of psychiatric illness, if loved one is injured/put in peril’.
( must prove close tie of love and affection in these cases )
Claim by ‘mere bystandard’ is not impossible:
(E.g who witnessed a petrol tanker careering out of control towards school and burst into flames - ‘reasonably foreseeable that even a reasonably strong-nerved person would have been so shocked’ - Lord Ackner)
HEGARTY V EE CALEDONIA LTD=
- Oil rig disaster - number of people killed/injured due to oil rig catching fire - brought claim onto D as a consequence of witnessing these events - not related, just bystander - court found not sufficient - D could not foresee psychiatric harm as a consequence.
Relationship of proximity in time & space (alcock)
- Proximity (in time and space) to accident or immediate aftermath.
- Arrived at hospital before family had been treated in McLoughlin (immediate aftermath)
- Identification of relatives in mortuary in Alcock (aftermath) - were not at the event caused by D’s negligence, or immediate aftermath, only aftermath, not sufficiently proximate in time and space to fulfil this requirement of a duty of care.
TAYLOR V SOMERSET HEALTH AUTHORITY =
C arrived at hospital - told husband had died, saw body in mortuary - could not establish DOc - aftermath not sufficient.
GALLI-ATKINSON V SEGHAL =
- Mother came across scene of accident on route she expected daughter to have been on, informed daughter killed, went hospital and viewed body in mortuary, the immediate aftermath was extended in this case - unbroken sequence of events - purpose of mortuary was to complete realisation of what had occurred, she did fulfil requirement of proximity of time and space.
- Was watching events on TV (alcock) sufficient to put C’s in physical proximity? No - the D foresee that relatives would be watching but would know of code of ethics - would not show pics of suffering.
Relationship of proximity: sudden shocking event?
- Requirement of a sudden shocking event.
- those who saw TV and travelled to sheffield could not show required degree of immediacy - Lord Ackner.
TAYLOR V SHIELDNESS PRODUCE LTD =
Parents of 14 year old - glimpsed him as rushed to intensive care - 2 days later life support switched off, no DOC owed to parents; no sudden shocking event, rather a sequence of events not within the immediate aftermath.
TREDGET V BEXLEY HEALTH AUTHORITY =
Child sustained serious injuries due to medical negligence during birth, judge said sequence of events that began with start of labour and ended with arrival of child needing medical attention was one continuous event - sufficient to establish sudden shocking event ; DOC owed.
NORTH GLAMORGAN NHS TRUST V WALTERS =
- Claim brought by mother who sustained grief reaction following death of child due to negligence - Ward LJ held needed to take realistic view of ‘event’ which extends from the negligent inflcition of damage through to end of immediate aftermath
^ was a sudden shocking event - was a ‘seamless tale with an obvious beginning and end’ it was played out over a period of 36 hours - one drawn out experience.
WILD V SOUTHEND =
gender differences - mother will always be the primary victim and father the secondary.
LIVERPOOL WOMENS HOSPITAL NHS V RONAYNE =
- secondary victim claim brought by husband who said he had sustained psychiatric harm as consequence of seeing wife in pain, was told next 24 hours were vital; whether she would live or not - succeeded but was appealed:
- counsel referred to walters as the only case of which where C succeeded in claim ‘in consequence of observing in a hospital setting the consequences of clinical negligence’
^ court emphasised the need for ‘sudden shocking event’ - held this wasnt the case but rather a gradual realisation that wife’s life was in danger due to a clinical error.
^ what C witnessed was not ‘horrifying by objective standards’ - not exceptional but appearance of wife would expect of person in hospital in circumstances - no DOC.
Must be horrifying, not simply distressing.
Relationship of proximity: communication through own sense (secondary)
- claimant must see or hear accident or aftermath with own senses
- communication by other means e.g third party, is not sufficient.
Stress at work claims:
- Where claimant alleges they have sustained psychiatric injury as a consequence of the amount of work their employer has asked them to do, or the nature of work they have been asked to do.
WALKER V NORTHUMBERLAND =
C was a social services officer - complained about amount of work and amount of distress - more staff promised but never provded - C had nervous breakdown, offered help but wasn’t provided - “all employers have a duty to take reasonable care for the safety of their employees: to see that reasonable care is taken to provide them with a safe place of work, safe tools and equipment and a safe system of working” - Hale LJ.
^ Where psychiatric harm suffered, law distinguishes between primary and secondary victims.
^ Primary not secondary victim because mental breakdown was caused by strain of doing work which his employer had required him to do.
HATTON V SUNDERLAND =
- No special conrol mechanisms apply to cases of psychiatric or physical injury or illness from stress of doing work employee required to do.
- Duty owed if psychiatric harm to this particular employee reasonably foreseeable.
- in this case, need to take particular care in determining questions of foreseeability, breach and causation.
- D Must be negligent
AB and others v Leeds NHS trust =
Brought by mother - primary victim and father, secondary victim - against the trust where baby died after birth as a consequence of delay of moving to natural labour to caesarean - couldnt be established it was a breach.
CAUSATION?
ORDINARY PRINCIPLES APPLY.
Remoteness =
Primary V = if personal injury foreseeable, D liable for injury sustained even if exact type of extent of injury not foreseeable - Page v Smith.
Secondary V = ought the D to have foreseen psychiatric injury in a claimant of ordinary susceptibility - Hay v Young.
