Psychiatric Harm Flashcards
What are the limitations of claiming psychiatric harm?
(a) Floodgates: A significant increase in the class of claimants who could recover. When you read the facts of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, consider the potential number of psychiatric claims if there were no constraints on duty (those in the
stand, at the match, watching on TV, listening on the radio, coming to the aftermath).
(b) Crushing liability: Imposing damages out of all proportion to the negligent conduct. For example, consider the liability of a negligent driver if anyone who witnessed the accident could claim for psychiatric harm caused.
(c) Fraudulent claims: Historically the courts have been wary of psychiatric harm as there is a perception that such harm is easier to ‘fake’ than physical injury (linked to diagnostic uncertainty). The courts worry about claimants making fraudulent or exaggerated claims
(due to diagnostic uncertainty) which could not be adequately checked or controlled.
(d) Effect of increased availability of compensation on potential claimants, for example, a disincentive to rehabilitation.
What constitutes psychiatric harm?
In this context, psychiatric harm is a form of psychiatric illness that the claimant has suffered as a result of the perception of traumatic events. The phrase ‘nervous
shock’ (old terminology) is a commonly used label to describe these cases. The psychiatric harm must be either:
(a) A medically recognised psychiatric illness; or
(b) A shock-induced physical condition (such as a heart attack).
Who would be a primary victim?
A primary victim is someone who suffers psychiatric harm as a result of reasonable fear for their own physical safety (objective test). They are involved in the traumatic event and are therefore in the area of danger (the danger zone).
Note that the primary victim does not suffer physical injury. If they do, then they are an actual victim and would bring an ordinary negligence action for their personal injury, including their consequential psychiatric injury which would be recoverable.
Who would be a secondary victim?
A secondary victim suffers psychiatric harm due to fear for someone else’s safety, normally a close relative. They are not in reasonable fear for their own physical safety.
They witness the traumatic event (or its immediate aftermath), and suffer psychiatric harm as a result, but are not involved in the event/in the area of danger.
How would bystanders or rescuers be classified?
Neither bystanders nor rescuers are given any special status in this area of law. As with any other claimant they must be classified as either a primary or secondary victim.
If a rescuer or bystander suffers psychiatric harm as a result of reasonably fearing for their own physical safety, then they will be a primary victim.
In Cullin v London Fire & Civil Defence Authority [1999] PIQRP 314, the claimant fire fighter suffered psychiatric injury after witnessing two colleagues trapped inside a burning building. In his rescue attempt, he was exposed to danger or reasonably believed he could be subjected to physical injury and was therefore a primary victim.
This case may be contrasted with White v Chief Constable of the South Yorkshire Police [1999] 1 All
ER 1. The claimants were police officers on duty during the Hillsborough football stadium disaster. They assisted in removing the dead bodies and carrying the injured to safety as well as trying to resuscitate spectators. Their action was for post-traumatic stress disorder. Their status as employees and professional rescuers did not convert them from secondary to primary victims (it is easier to establish a duty if you are a primary victim). They were secondary victims as they had not been exposed to danger, so the ordinary criteria for establishing a duty in respect of secondary victims applied.
What sort of duty of care is owed to primary victims?
Page v Smith [1996] 1 AC 155 it was held that in order to determine whether a primary victim is owed a duty of care, the defendant must reasonably have foreseen that the claimant might suffer physical injury as a result of their negligence. If physical injury was reasonably foreseeable, the normal principles for determining the existence of a duty of care would then
apply.
This test for establishing a duty of care is a much easier test to satisfy than the test for
establishing a duty of care to secondary victims (the Alcock criteria as discussed later). The first step, however, is to ensure the psychiatric harm suffered is recognised in law. In all claims of pure psychiatric harm a key criterion for recovery is that the claimant has suffered a medically recognised psychiatric illness; or a shock-induced physical condition. Courts will
refer to medical manuals etc, medical history/notes, expert evidence and precedent. Liability will not arise for fear, distress or mental grief caused by negligence
The primary victim must show that physical harm was reasonably foreseeable in order to establish a duty of care.
Key case: Page v Smith [1996] 1 AC 155
In Page v Smith [1996] 1 AC 155 the defendant admitted negligent driving but argued that the psychiatric damage suffered (ME) was not foreseeable and therefore no duty of care was owed.
The House of Lords disagreed. They held that in the case of primary victims if physical injury is foreseeable to the claimant (which it was due to the collision) then that would be sufficient to enable the claimant to recover damages for psychiatric harm even though he had not actually
been physically hurt. There was no need to foresee psychiatric damage as well.
The court also confirmed the ‘thin skull’ rule (ie if physical injury is reasonably foreseeable, the defendant is liable for the full extent of the psychiatric harm, even if the claimant suffered to a greater extent as a result of a pre-existing condition). This is relevant to remoteness in the general
negligence sequence.
If physical injury is held to be reasonably foreseeable, the courts will apply the normal principles for determining the existence of a duty of care.
If the court is unable to rely on precedent and is discussing proximity and fair, just and reasonableness, these are likely to be relatively straightforward. As the primary victim is always present at the traumatic event, there is always geographical proximity between the claimant and
defendant. Finally, if the defendant negligently, and foreseeably, puts the claimant in fear of their safety, it is likely that the courts will find it fair, just and reasonable to impose a duty of care for
any psychiatric damage caused as a result.
What is the test for whether a duty of care is owed to secondary victims?
(a) Psychiatric harm must be reasonably foreseeable;
(b) Proximity of relationship between the claimant and ‘the victim’;
(c) Proximity in time and space; and
(d) The injury must be the result of sudden shock.
In addition to the Alcock criteria, as an overarching consideration, the court will always take into account whether it is fair, just and reasonable for a duty to be imposed (ie policy considerations
such as floodgates, crushing liability, the risk of fraudulent claims and evidential difficulties).
What does it mean that psychiatric harm must be reasonably foreseeable?
For the secondary victim to prove duty of care, they must establish that psychiatric harm was reasonably foreseeable in a person of ordinary fortitude in the same circumstances. Contrast this with the criteria necessary for a primary victim in which only physical injury must be foreseeable.
Whilst it was foreseeable that the defendant might physically harm other road users with his negligent driving, it was not foreseeable that someone in the claimant’s position of normal fortitude would suffer psychiatric harm.
Note, however, that once it is established that a person of normal fortitude might have suffered psychiatric illness, the normal ‘thin skull’ rule (meaning you take your victim as you find them) is applicable, so that if psychiatric harm is foreseeable, the claimant can recover damages for all
psychiatric harm they suffer, even if they have suffered to a greater extent than could have been foreseen because of a predisposition to mental illness (Brice v Brown [1984] 1 All ER 997). This is relevant to remoteness in general negligence.
What constitutes proximity of relationship between the claimant and ‘the victim’?
The second requirement is that the secondary victim must have a relationship of close ties of love and affection with ‘the victim’ ie the person for whose safety the claimant feared because of the defendant’s negligence. Close ties of love and affection are rebuttably presumed in the case of
parent/child, married couples and engaged couples. This presumption is rebuttable so the defendant can try and prove that there are, in fact, no close ties of love and affection, for example, between a married couple.
There is no such rebuttable presumption for grandparent/grandchild or between siblings. In Alcock, Lord Ackner said: ‘The quality of brotherly love is known to differ widely – from Cain and Abel to David and Jonathan’.
Those claimants that fall outside of the rebuttable presumption categories, can try and prove close ties of love and affection with the victim. However, to date, no claimant outside of the rebuttable presumption categories has successfully argued this.
The most successful cases in relation to proximity of relationship have concerned the parent/child or spouse relationship.
What constitutes proximity of the claimant to the accident in time and space?
The secondary victim must be present at the scene of the accident or its immediate aftermath; and the claimant must see or hear the accident, or its immediate aftermath, with their own senses. So, the secondary victim must be more or less in the immediate vicinity of the accident or
have witnessed the aftermath shortly after.
Usually a claimant is present at the scene of the accident. Where the claimant is removed from the scene it is not so easy to justify recovery; foresight of the claimant being harmed cannot so readily be established and there is the problem of imposing extensive liability on the defendant.
The courts have however extended physical proximity to include where the claimant perceives the ‘immediate aftermath’ of an accident.
For example, in McLoughlin, the mother arrived at the hospital two hours after the accident and saw her family in the same condition as they had been at the scene of the accident, visibly upset, bruised and covered in grime and dirt from the accident. It was therefore held that she had perceived the immediate aftermath of the accident and her claim for psychiatric harm was successful.
Contrast this with Alcock, where one of the claimants identified their brother-in-law in the mortuary eight hours after the incident, and this was not considered to be part of the immediate aftermath.
Alcock made it clear that there would be no duty owed to a secondary victim who is merely told about a shocking event (including via a newspaper or television). The shock must be caused by the claimant seeing or hearing the event or its immediate aftermath. The court held that although television images could give rise to feelings of deepest anxiety and distress, they cannot equate to the sight or hearing of an event or its immediate aftermath, in part because individuals are not identifiable. If broadcasters transmitted images of identifiable individuals, this could amount to a novus actus interveniens, and break the chain of causation between the defendant’s negligence and claimant’s loss. However, in Alcock, the possibility was left open for claims involving live television broadcasts where it was clear the victims had died, for example, if a hot-air balloon
carrying children were to explode on television and this was being watched on the television by the children’s parents.
What does it mean that the injury must be the result of sudden shock?
The final criteria to satisfy is that the injury (the psychiatric harm) must be shock-induced. In addition to witnessing the events through their own unaided senses, the claimant’s psychiatric harm must also be ‘a reaction to the immediate and horrifying impact’ of the event and ‘a sudden assault on the nervous system’ (Alcock), rather than a gradual realisation of what has happened.
In North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 the claimant suffered psychiatric illness after negligent medical treatment led to the death of her 10-month-old baby. The Court of Appeal held that although the events leading to the claimant’s psychiatric condition took place
over 36 hours, the series of events leading to the death could together constitute a ‘horrifying event’, including witnessing the medical negligence. They also confirmed the trial judge’s ruling that the claimant’s appreciation of events was ‘sudden’ because each separate event had an
immediate impact. The claimant had suffered from drawn-out and ‘seamless’ shock.
Key case: Sion v Hampstead Health Authority (1994) 5 Med LR 170
In contrast, in Sion v Hampstead Health Authority (1994) 5 Med L 170 the claimant failed in similar circumstances. The breach of duty was also medical negligence but the distinguishing feature in Sion was that the psychiatric condition developed after the claimant (the father) saw the victim (the claimant’s son) in intensive care over a longer period (two weeks) and gradually
came to the realisation that medical negligence had caused the injuries. Unlike in North Glamorgan this was not a sudden reaction to a horrifying event. A psychiatric illness caused not by a sudden shock but by an accumulation of more gradual assaults on the nervous system over a period of time is not enough.
