Psychiatric Harm

Question 1

Recovery is straightforward when…

Answer 1

Physical injury has occurred alongside psychiatric injury (Corr v IBC Vehicles [2008])

Question 2

Often cited as…

Answer 2

PTSD which occurs as a result of an assault of the senses. It happens by way of nervous shock after an event.

Question 3

What is psychiatric harm?

Answer 3

Only recoverable for recognised psychiatric illnesses and is not pure grief, sorrow or sadness (Hicks v Chief Constable of South Yorkshire Police [1992]).
It was noted in White [1998] hat “the law cannot compensate for all emotioonal suffering even if it is acute and truly debilitating” (confirmed in Grieves v FT Everard & Sons [2007]).

Question 4

Policy reasons for limiting liability in psychiatric damage cases

Answer 4

Steyn in White:

• Evidential problems
• Effect on claimants (Disincentive to rehabilitation)
• Floodgate argument
• Potential unfairness on defendant (out of proportion with negligent conduct)

Question 5

Conaghan and Mansell opinion

Answer 5

They believe that when placed side by side, various cases in recovery for psychiatric harm seem ridiculous. They believe this is as a result of the web spun around it and the courts acting without clear policy goals, resulting in haphazard decisions.

Question 6

Bourhill v Young [1943]

Answer 6

Made the first distinction between primary and secondary victims.
In this case, a heavily pregnant woman heard a motorcycle crash and saw the blood of the victim. As a result of the sress the baby was stillborn - the court found that because she was not a person of ‘ordinary fortitude’ it was therefore not reasonably foreseeable that damage would come about as a result of the accident.

Question 7

Alcock v Chief Constable of South Yorkshire Police [1998]

Answer 7

Drew the initial distinction between primary and secondary victims.
This case was victims’ families and friends seeking compensation for psychiatric damage caused as a result of seeing their loved ones crushed in a gruesome manner. The case put in place the Alcock mechanism to limit liability for secondary victim (the ‘hearness dearness and nearness’ controls).

Question 8

Alcock Mechanisms

Answer 8

1. There must be a tie of love and affection between the victim and the claimant
2. They must be close physically and temporally
3. It must be a sudden and direct realization of the event

Question 9

Mechanism one (dearness)

Answer 9

In Robertson v Forth Bridge Joint Board [1996] a work colleague who was his best friend could not claim for psychiatric damage after watching his friend being negligently killed although a friend relationship is not ruled out completely. Alcock did not rule out completely a bystander recovering if the damage is particularly horrific however in McFarlane v EE Caledonia [1994] an individual could not claim who watched an oil rig disaster from a boat due to negligence.

Question 10

Mechanism two (nearness)

Answer 10

McLoughlin v O’Brian [1982] ruled that the witness must either watch the accident or happen upon its immediate aftermath. In this case 2 hours after the accident was sufficient but in Alcock 8 hours was not.
In Galli-Atkinson v Seghal [2003] the aftermath was deemed in two stages: the scene of the accident and the morgue, and this was sufficient.
In Taylor v A Novo [2013] a claimant was denied witnessing her mother’s death after a negligent event three weeks prior.

Question 11

Mechanism three (hearness)

Answer 11

The shock must be sudden and not continuous. In Sion v Hamstead HA [1994] a father was unable to claim for watching his son die over 14 days of NHS negligence.
There is evidence that this restriction is being lifted, as in North Glamorgan NHS Trust v Walters [2002] a mother was able to recover watching her baby die over 36 hours.
Alcock states that news of the event is not sufficient.
Alcock states that recovery could be made for live TV if it is sufficiently horrific.

Question 12

Primary victims

Answer 12

Claimants can recover for psychiatric injury stemming from actual physical injury or a reasonable apprehension or fear of danger to their safety (Duleiu v White [1901]).

To recover, physical injury must be foreseeable but psychiatric injury need not be (Page v Smith [1996]).

Question 13

Page v Smith [1996]

Answer 13

They must be directly involved as a participant. In this case a minor car accident caused Page’s ME to recur, the claimant could claim notwithstanding that no physical injury occurred. Therefore the claimant must be in a zone of physical danger.

Question 14

Grieves v FT Everard & Sons [2007]

Answer 14

This case limited recovery in psychiatric harm, restricting recovery for worrying about future health problems. In this case the claimant developed pleural plaques as a result of asbestos exposure but could not claim for the depression caused by worry for future diseases.

Question 15

Secondary victims

Answer 15

No more than the passive and unwilling witness of injury caused to others. They are subject to the Alcock mechanisms.

Question 16

Egg shell skull rule

Answer 16

A defendant is liable for any psychiatric damage caused so long as some form of damage is foreseeable (Brice v Brown [1984]).

Question 17

Beyond primary and secondary victims

Answer 17

• Rescuers
• Involuntary participants
• Communicators of shocking news
• Self harm by the defendant

Question 18

Rescuers

Answer 18

Traditionally treated favourably: ‘Danger invites rescue… [the rescuer] is the child of the occasion’ (Wagner v Int’l Railway [1921]).
DoC was extended to rescuers as they attempted to rescue those put in danger by negligence (Ogwo v Taylor [1988]).
This extended beyond physical harm as seen in Chadwick v British Railway Board [1967] where a widow could recover for psychiatric harm her husband suffered spending 12 hours rescuing people from a gruesome train wreck.

Question 19

White v Chief Constable of South Yorkshire Police [1998]

Answer 19

Rescuers were not considered primary or secondary victims and were not held to have special privileges. The usual inclination to protect rescuers was replaced with the wish to limit recovery for pure psychiatric harm. The police officers could not claim for damage.
Lord Goff made a strong dissent, using the example of Chadwick and one in phsycial danger (being able to recover) and one not in danger (not being able to recover).

Question 20

Involuntary participants

Answer 20

Stems from Dooley v Cammell Laird [1951] in which a crane operator had his cable snap over a group of workings, thinking he had killed or injured fellow workers. He successfully claimed in psychiatric damage. In Alcock they classified him as a primary victim.
In W v Essex CC [2000] the HL failed to strike out the possibility of side stepping the primary/secondary victim distinction.
In Monk v PC Harrington [2009] a construction worker was denied a claim as both a rescuer and an involuntary participant as he heard that a cable he installed snapped and killed two workers and he went to help. The HL denied both claims as he was not a primary victim nor did he have a reasonable ground to believe it was his fault.

Question 21

Communicators of shocking news

Answer 21

Wilkinson v Downton [1897] is a tort in which you can be liable for intentially shocking the receiver of information. It was confirmed in Wainwright v Home Office [2004].
In AB v Tameside and Glossop HA [1997] telling someone they have HIV through letter and not face to face was not deemed negligence.
In Farrell v Avon HA [2001] it was established that a claimant could claim for false information that causes psychiatric damage - in this case she was told that her son died and she was given a baby corpse to hold.

Question 22

Self harm by the defendant

Answer 22

In Greatorex v Greatorex [2000] a man got drunk and was negligently involved in a gruesome accident. One of the rescuers was his own father but he could not claim as the defendant caused damage to himself.

Question 23

Assumption of a duty of care cases

Answer 23

Various duties of care can be automatically established.
An employer was found liable for an employee’s stress in Walker v Northumbria CC [1995] in which the claimant had two nervous breakdowns: the first was not foreseeable but the second was foreseeable due to no reduction in his workload.
The claim must be reasonably foreseeable.
This was confirmed in hatton v Sunderland [2002] Foreseeability epends on nature and extent of work, signs of stress, availability of resources etc. This set up protection for the employer.

Question 24

“Thus far and no farther”

Answer 24

Lord Steyn in White: “The law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify”