Psychiatric harm Flashcards
What is psychiatric harm?
In the decision of the House of Lords in Page v. Smith [1996] 1 AC 155 Lord Jauncey explained (at 171) that nervous shock meant “such an impact upon the mind or nervous system as is recognised by modern medical science as capable of causing physical or psychiatric illness”.
Mullally v. Bus Éireann [1992] ILRM 722,
he plaintiff was what has been categorised in some cases as a “secondary victim”. She heard about an accident involving her husband and children but was not involved in the accident directly. She telephoned the hospital and was told one of her sons was “very bad” and her husband was dying. She went to the hospital which presented a distressing sight. One of her sons was “beyond recognition” as a result of his injuries. When the plaintiff went home, she became hysterical. One of her sons later died as a result of the accident. Denham J (in the High Court) found the plaintiff suffered the following symptoms in the aftermath of the event: “she put down the shutters. She became very reserved. A new person emerged. She put all emotion aside … Her personality changed. She appeared frozen”. The trial judge found the plaintiff suffered from Post-Traumatic Stress Disorder or “PTSD” which she accepted as a “psychiatric disease”. The trial judge further found that it was reasonably foreseeable that the plaintiff would suffer this type of injury in the aftermath of the accident attributable to the negligence of the defendant’s employee. Denham J said:
What of the issue of proximiaty and psychiatric harm?
There must be proximity in Tort:
For someone to raise negligence in psychiatric harm the proximity may be categarorised as:
(a) proximity of relationship between persons;
(b) proximity in a spatial context;
and (c) proximity in a temporal sense”.
“I am satisfied that a person with a close proximate relationship to an injured person, such as the plaintiff, who, while not a participant in an accident, hears of it very soon after and who visits the injured person as soon as practicable, and who is exposed to serious injuries of the primary victims in such a way as to cause a psychiatric illness, then she becomes a secondary victim to the accident.
Kelly v. Hennessy [1995] 3 IR 253; [1996] ILRM 321
n this case the plaintiff was a woman who was informed over the phone of a road accident involving her husband and children. The plaintiff went into shock immediately, became upset and started vomiting. She was taken to the hospital and saw her husband and daughters in an “appalling condition” and later described one looking like “mince meat”. Her husband spent three months in hospital and suffered brain damage and needed to be bathed and cared for by the plaintiff. One of the daughters was also brain damaged. The other daughter made a full recovery. Lavan J found that the plaintiff had suffered PTSD and severe depression. The trial judge doubted if she would ever recover. Lavan J adopted the judgment of Denham J in Mullally and found for the plaintiff. The decision of the High Court was appealed to the Supreme Court. Two judgments were given by Hamilton CJ and Denham J.
There was obviously a close proximity of relationship between the plaintiff and her husband and daughters in this case. While the plaintiff had not been at the scene of the accident she had been told about the accident over the phone and visited the hospital in the immediate aftermath of the accident. Denham J rejected the argument that the symptoms of PTSD arose later in time than the accident and were more attributable to the events in the weeks and months after the accident.
What is a secondary victim?
While someone directly affected by an accident is the primary victim, someone who is affected as a result of that injury is the secondary victim.
The example would be someone having to see their child in a severely physically damaging sight develops PTSD. The child is the primary victim the parent with PTSD is a secondary.
What are the five successful factors for negligently caused psychiatric harm?
Hamilton CJ identified the following five factors of a successful claim for negligently caused psychiatric harm:
- The plaintiff must establish that he suffered a recognisable psychiatric illness;
- The illness must have been shock induced (not the accumulated effect of grief or loss);
- The shock must have been caused by the defendant’s act or omission;
- The shock must have been caused by reason of actual or apprehended physical injury to the plaintiff or a person other than the
plaintiff; - The plaintiff must show the defendant owed him a duty of care not to
cause him a reasonably foreseeable injury in the form of shock.
Kelly v. Hennessy [1995] 3 IR 253; [1996] ILRM 321
Developed the five successful factors for negligently caused psychiatric harm. for secondary victims.
O’Connor and Tormey v. Lenihan [2005] IEHC 176
Requirement of psych illness: he plaintiffs attempted to recover for nervous shock arising out of the retention of their children’s organs by the National Maternity Hospital. Peart J in the High Court held the plaintiffs were not entitled to recover as they had not shown they suffered from any recognised psychiatric illness.
Philip v. Ryan [2004] IESC 105, [2004] 4 IR 241
Case where there was no clarified mental illness arising from the shock but won nevertheless:
Damages were awarded to the plaintiff for “great anguish and distress” as a result of a negligent failure by the defendant to diagnose the plaintiff was suffering from prostate cancer in a timely manner.
Harford v. Electricity Supply Board [2021] IECA 112
The plaintiff was an employee of the defendant who brought an action for nervous shock after he mistakenly handled a medium voltage cable (10,000 volts) rather than low voltage cable (400 volts) when repairing a public-street light. The mistake occurred as the device the plaintiff had been given to identify the cable was new and he had not been trained in its use.
The plaintiff began to ruminate on what had happened and how close he had come to injury or death due to electrocution. He was subsequently diagnosed with PTSD and depression.
In the High Court, it was held that the plaintiff’s injuries were shock-induced as a result of his exposure to and handling of a 10,000-volt cable and that he had apprehended serious injury or death as a result of the incident. However, on appeal he did not satisfy the test. As the shock must be immediate and not delayed. Additionally he did not meet the fourth test principle that there must be a physical injury attached.
What was super important in Fletcher v. Commissioner for Public Works [2003] 2 ILRM 94 ?
there were “policy” reasons why certain types of cases should not be actionable in negligence. One of these “policy” reasons was the undesirability of awarding damages in cases where a person contracts a psychiatric illness “solely due to an unfounded fear of contracting a particular disease” (at 113–114)
Fletcher v. Commissioner for Public Works [2003] 2 ILRM 94 Keane CJ
Man was exposed to asbestos and was afraid of contracting a disease and therefore had psychiatric harm.
it was not in dispute that it was reasonably foreseeable that the plaintiff would be exposed to the risk of contracting mesothelioma as a result of the defendant’s negligence. It was also reasonably foreseeable that the plaintiff would suffer psychiatric illness on being told there was a remote risk of contracting the disease.
However, lost his case as it would be “unreasonable to impose a duty of care on employers to guard against mere fear of a disease even if such fear might lead to a psychiatric condition”.
A v. C [2007] IEHC 120
he plaintiffs were husband and wife and lived on a farm with their young child. The wife had a history of mental illness and also suffered post-natal depression. The defendants’ solicitors had written to the plaintiffs and complained about a wall being built on the plaintiffs’ land, which they said was being built without their consent. At 6 a.m. on May 10, 2000, the defendants arrived on the plaintiffs’ land and demolished the wall with the aid of a loading shovel. The second named plaintiff was in bed and was awoken by the noise and became fearful for the safety of her 18-month-old child, who was in the house at the time.
She was considered a “primary” victim and therefore did not need to satisfy the Kelly v. Hennessy criteria in order to recover.
This would seem to be a correct approach following the judgment of Keane CJ in Fletcher that psychiatric or psychological injury could be recoverable if it was reasonably foreseeable in the circumstances.
On the other hand, as Byrne and Binchy point out, while trauma, shock and upset might have been foreseeable in the circumstances, the fact the plaintiff would develop psychiatric illness as a result might not have been.1
In any event, Laffoy J held that the second plaintiff also satisfied the criteria in Kelly v. Hennessy:
What are the three factors for psychiatric harm for liability?
Lord Wilberforce laid emphasis on three factors:
(1) strict proximity in time and space to the accident or its immediate aftermath,
(2) a close relationship of love and affection with the person involved in the accident (the primary victim) and
(3) direct means of communication of the event. Proximity in time and space would involve the plaintiff arriving at the scene of the accident or its immediate aftermath.
Close family relationships would include parents, children, husbands and wives. Personal witness of the accident would be required; hearing about the accident second hand might not be sufficient, although it was suggested that communication through simultaneous television transmission might suffice.
Alcock v. Chief Constable of South Yorkshire [1992] 1 AC
This case arose out of the infamous Hillsborough disaster when nearly a hundred people died and hundreds more were injured in a crush at Hillsborough football stadium. The disaster was attributable to the negligence of the South Yorkshire police. In this case the House of Lords again drew a distinction between primary and secondary victims. Primary victims included those in actual danger, those who perceived themselves to be in danger, and rescuers. Primary victims could succeed as long as they could demonstrate the reasonable forseeability of injury. Secondary victims were those who believed themselves to be in no personal physical danger. A secondary victim could be a person who witnessed the event or heard about it at the time or later. A secondary victim would need to satisfy the three criteria set out by Lord Wilberforce in McLaughlin v. O’Brian [1983] 1 AC 410: (1) close ties of love and affection with a primary victim; (2) strict proximity in time and space to the accident or its immediate aftermath; (3) direct perception of the accident or its immediate aftermath through sight or hearing.
