Psychiatric Harm Caused By Negligence

Question 1

1. What is Pyschiatric Harm?

Answer 1

A subset of physical injury, where the claimant/victim suffers from a medically recognised mental illness (aka actionable damage).

Question 2

2. What is a Primary Victim?

Answer 2

There are many definitons for what constitutes being a Primary Victim in Pyschiatric Harm cases that are derived form case law, such as:

Alcock (1992) Lord Oliver (410): “anyone involved as a participant”.

Page (1996) Lord Lloyd [185, 187]: ‘participant’ within range of reasonably foreseeable physical injury/danger.

White [1999] Lord Hoffman [589] - exposed to danger/reasonably believed to be exposed.

Question 3

3. Name the steps for estabishing a Primary Victim in a problem question?

Answer 3

Step 1 – Is there a recognisable psychiatric injury?

Step 2- Were they ‘exposed to physical injury or reasonably believed they were exposed to danger’? (White)

Step 3 – Was (any) personal injury foreseeable?

Question 4

4. What are some potential problems for Primary Victims?

Answer 4

Some problems for PV’s include:

Rescuers

Involuntary participants/unwitting agents who (think they) have caused harm

Employees suffering psychiatric harm usually without physical harm

Others who suffer psychiatric harm without physical harm

Question 5

5. What is a Secondary Victim?

Answer 5

A secondary victim suffers Psychiatric Injury as a result of witnessing someone else being harmed or endangered.

Question 6

6. Name the steps for estabishing a Secondary Victim in a problem question?

Answer 6

Using the case of Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310

It must be established that:

1. Does C have a recognised psychiatric illness? Ie actionable damage.
2. Is the psychiatric illness reasonably foreseeable?
3. Does the claimant meet the ‘control mechanisms’ established in Alcock

a) Proximity of relationship (love and affection)

b) Proximity in time and space to the events

c) Direct perception

d) Illness caused by a ‘sudden shocking event’ not a continuous situation

Question 7

7. In Relation to Secondary VIctims, what do the courts recognise?

Answer 7

Courts now recognise the potential seriousness of mental injuries: “… no less real and frequently no less painful and disabling… [than physical injuries]”

(McLoughlin v O’Brian (1983), per Lord Bridge)

But this raises policy concerns.

• ‘Shock’ capable of affecting so wide a range of people: McLoughlin v. O’Brian (1983), per Lord Wilberforce

The Law Commsions has also suggested reform for Secondary Victims.

• Law Commission (1999): fear of ‘floodgates’ , heightened by widened medical concept of psychiatric injury

Question 8

8. What are the Special Rules needed for Secondary Victims? (more detail)

Answer 8

Special additional rules for SVs to ‘pass’ to show D duty of care: control mechanisms (Alcock 1992)

• Proximity between claimant (SV) and the victims of the traumatic incident
• Time and space proximity to the traumatic incident (to show that they were close)
• Emotional/relationship proximity to the victim of physical harm
• Sensory proximity to the traumatic incident
• Psychiatric harm must be reasonably foreseeable in a person of ‘normal fortitude’ under the circumstances in this situation for a SV to recover damages

Bourhill [1943] Lord Porter [117]: “Ds can expect people to cope with seeing accidents, but if a person of normal fortitude would suffer harm then the SV can claim even if they are susceptible”

Manner of causation of psychiatric harm must be through a sudden shocking event e.g (instantenous)

Question 9

9. In relation to Secondary Victims, describe the Shock Factor.

Answer 9

The Manner in which causation of psychiatric harm must be from, is a shock.

It should not the gradual accumulation of pressures

E.g. caring for a tortiously brain-damaged child or a disabled spouse

Sion v Hampstead Health Authority [1994]: two-week-long bedside vigil.

• But some courts have taken a broad view (bending the rules) of what is a single shocking event

Tredget v. Bexley Health Authority [1994] : two days between the birth and death of the P’s baby were ‘effectively . . . one event’

Glamorgan NHS Trust v Walters [2003] PIQR P23: 36-hour period beginning when C’s son suffered an epileptic fit and ending when he died in his mother’s arms was a single horrifying event

Ronayne v Liverpool Women’s Hospital (2015):
distinct events, not horrifying by objectives standards

Question 10

10. In relation to Secondary Victims, describe the Proxmity Factor. (3 Things)

Answer 10

1. Time and Space Proximity

C must show that they have witnessed the incident or its immediate aftermath McLoughlin v O’Brian [1983]

C was at home when a road accident killed her child and cousins, and witnessed her family in the same state, at the time of the accident e.g the immediate aftermath as she saw them in the state, had she been in, or around the accident.
Alcock [1992]

Galli Atkinson [2003] 16yr old girl saw a dead body in a mortuary no claim,

Berisha [2014]

2. Emotional/Relationship Proximity

The Claimant must have close ties of love and affection with trauma victim.

There is a presumed tie for spouses and parents/children

Others, (inc grandparents, siblings, friends) must prove this love in court to be able to satisfy the criteria as in Alcock [1992], Robertson [1996]

3. Sensory Proximity

C must experience event with their own unaided senses, eg not watching on TV.

some people during the hillsbourough disater found out or knew their relatives or children were in the stadium.

But it was held in Alcock that they did not have the necessary shocking elements to claim

or being told about it as in Hambrook v Stokes [1925]

Their must be perception by eyes or ears.

Question 11

11. What are some critiques of the special rules? (Aftermath Cases)

Answer 11

The Rules do not make sense.

The Shock rules have outdated assumptions about how psych harm is caused, this shows the lack of understanding of how pyschaitric injury is caused by the courts. the law has not changed accordingly.

‘Aftermath’ Cases (Time and Space Proximity) uncertaincy is introduced.

Example 1. The case of Galli-Atkinson has similar aftermath facts to Alcock, but claim successful? Incosistencies within case law.

Example 2. For example, Australian Law has a much broader approach to aftermath cases (no floodgates problems)

Timing of viewing body is coincidence of distance – shouldn’t affect claim.

Question 12

12. What are some critiques of the special rules? (Close Ties Cases)

Answer 12

‘Close Tie’ Cases (Relationship Proximity)

One critisism is that the law is harsh and doesnt take into account the other circumstances that may be present.

Example 1. Parents/Children could be estranged, Siblings/Friends could have strong ties but this would be hard to prove, as the threshold is set so high.

Lord Keith dissented in (Alcock) - just use test of reasonable foreseeability.

Question 13

13. What are some critiques of the special rules? (Ordinary Fortitude Principle)

Answer 13

Who is of ‘ordinary fortitude’?

Case law set this requirement before medical knowledge understood mental illness

Judges are generally old, white, male – their assumptions about what ordinary people can ‘put up with’ will be different from the general population (eg miscarriage cases)

Question 14

14. What happened in 1989 with the Hillsborough Disaster?

Answer 14

Hillsborough 1989

• On Saturday, 15 April 1989, thousands of football fans flocked to Hillsborough stadium in Sheffield to watch the FA Cup semi-final between Liverpool and Nottingham Forest. 96 people were killed, or received fatal injuries, in the resulting crush.
• Following the tragedy, numerous actions for damages were brought against the police and other authorities by those affected, resulting in three decisions of the House of Lords (Supreme Court)
• Hicks v Chief Constable of S Yorks
• Alcock v Chief Constable of S Yorks
• White v Chief Constable of S Yorks

Question 15

15. What happened in Hicks v South Yorkshire Police 1992?

Answer 15

Hicks v South Yorkshire Police (1992)

• Sisters Sarah and Victoria Hicks (aged 19 and 15 respectively) lost their lives in the Hillsborough crush
• Their parents (through their “estate”) sought damages for:
• Their pain and suffering as they were caught in the crush
• Their pain and suffering from the fatal crushing of their chest
• Their fear of impending death
• All the claims failed for negligence in terms of psychiatric illness

(NB: The common law’s lack of remedy for pure mental injury)

Question 16

16. What happened in Alcock v South Yorkshire Police (1992)?

Answer 16

Alcock v South Yorkshire Police (1992)

• A test case grouping a sample of claims of Post Traumatic Stress Disorder (PTSD) brought by relatives of the deceased
• With varying types of relationship to the deceased
• In various places at the time of the tragedy (some at the scene, some a distance away)
• Witnessing the events by various means (in person, watching live on TV or listening live on radio)
• Or identifying the bodies hours later in the temporary mortuary erected in the stadium
• All the test claims rejected, for varying reasons
• Insufficiently proximate relationship with the deceased
• Insufficient immediacy of perception
• Insufficient proximity in time or space (remember floodgates argument)
• Held, for one or other of the above reasons: no duty of care
• HL evidently concerned about “opening the floodgates of liability”

Question 17

17. What happened in White v South Yorkshire Police (1999)?

Answer 17

White v South Yorkshire Police (1999)

• A test case brought by police officers on duty during the Hillsborough tragedy but outside the area where the deaths and injuries occurred against their employer.
• Some precedents seemed in their favour
• An aspect of the employer’s duty of care (DOC) to employees?
• A DOC owed to rescuers?
• But HL dismissed the claims:
• The employer’s DOC does not extent to protection against psychiatric harm from witnessing a traumatic event
• Only rescuers exposed to the danger (or reasonably believing they were) were primary victims owed a DOC

Question 18

18. What is the Historical Development of Nervous Shock? (Part 1,Victorian)

Answer 18

Initially, courts rejected or very hesitant to consider nervous shock claims.

See the case of Victorian Railway Commissioners v Coultas (1888): which concerned a mental injury caused by fright (near-miss at level crossing)

‘Damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such circumstances, their Lordships think, be considered a consequence which, in the ordinary course of things, would flow from the negligence of the gate-keeper.

If it were held that they can, it appears to their Lordships that it would be extending the liability for negligence much beyond what that liability has hitherto been held to be …

The difficulty which now often exists in case of alleged physical injuries of determining whether they were caused by the negligent act would be greatly increased, and a wide field opened for imaginary claims’.

Question 19

19. What is the Historical Development of Nervous Shock? (Part 1,Dulieu)

Answer 19

There then was a shift in Liability for Physical harm caused by mental shock first recognised in Dulieu v White (1901):

P believed herself imperilled by D’s neg (barmaid fears for her own safety)

Hambrook v Stokes Bros [1925] 1 KB 141: a mother fears for children’s safety.

Particular reluctance to recognise a duty of care to secondary victims: see eg…

Bourhill v Young (1943): pregnant fishwife NOT within area of potential danger arising out of negligence

Question 20

20. What has this got to do with Duty of Care? (Part 2) When denying a claim…

Answer 20

When denying a claimant’s claim, courts usually say:

• No actionable damage suffered in the specific case remoteness in the first place if C cannot point of pathology then there will be no claim regardless of the harm suffered.
• No Duty of Care (rather than yes to duty but no breach/causation) in relation to the particular type of harm suffered.

Claimant in O v Royal Bournemouth NHS Foundation Trust [2018] EWHC 3916 (QB) suggested applying the Caparo approach

Question 21

21. How does this relate to the Caparo approach? (Part 1)

Answer 21

Do not use the incremental/analogical approach derived from Robinson, Caparo etc!

Courts are looking at the same kinds of questions that the Robinson/Caparo approach asks:

1. Reasonable Foreseeability (might foresee a broken leg but not psych harm)
2. Proximity (less proximate victims might suffer psych harm)
3. Fair, Just and Reasonable – policy reasons

Presumption is that there is no Duty of Care unless there is a very good reason to do so. In doing so they will develop the law incrementally.

Question 22

22. How does this relate to the Caparo approach? (Part 2)

Answer 22

Policy Reasons – the courts are very reluctant to establish D of C

• Suspicion of fraudulent claims - Lord Wilberforce McLoughlin [para 421]
• Suspicion about severity/gravity of mental health issues -** Lord Steyn White [para 493]**
• Diagnostic uncertainty/unreliability of psychiatric disorders - P Lees-Haley (1988)
• Pursuing a claim is a disincentive to rehabilitation - O Quick (2012)
• Compensation culture
• Floodgates
• Crushing liability – disproportionate burden on defendants - Chester v Waverley (Aus) [1939]

Question 23

23. What is the Law concerning Actionable damage at the start of a claim in Psychiatric Harm? (Hinz [1970] Lord Denning, recognised pyschiatric….?)

Answer 23

• Recognised psychiatric disorder, not ‘mere’ grief or distress no matter how intense it is.
• Hinz [1970] Lord Denning MR, Hicks [1999]
• ‘In English law no damages are awarded for grief or sorrow caused by a person’s death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life.

Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant’. Hinz v Berry [1970] 2 Q.B. 40, 42 per Lord Denning MR

• What is a psychiatric disorder? DSM-V, ICD-10 diagnostic manuals to determine whter there is or isn’t a pyschiartirc illness
• Law focuses on the pathology of a disease or brain abnormality, not degree of pain/suffering/harm or severity of effect on victim’s life.

Question 24

24. In the Law Reform Commision (2.3), what did Lord Bridge say in the leading case of McLoughlin v O’Brian [1983]. In relation to Nervous Shock?

Answer 24

Lord Bridge in McLoughlin v O’Brian [1983] 1 AC 410, 431.

‘[T]he first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness.”

Any “recognisable psychiatric illness” will suffice, and damages have been awarded in the past for morbid depression, hysterical personality disorder, post-traumatic stress disorder, pathological grief disorder and chronic fatigue syndrome (CFS).

Expert medical evidence will generally be required to establish that the plaintiff has suffered a recognisable psychiatric illness.

The ordinary emotions of anxiety, fear, grief or transient shock are not conditions for which the law gives compensation.

Question 25

25. In the Law Reform Commision (2.3), what did the footnote say? (Hinz, Hicks, Nicholls, Reilly)

Answer 25

• …Hinz v Berry [1970] 2 QB 40 (no recovery for the inevitable grief and sorrow at losing a husband);
• Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65 (fear of impending death suffered by victims of the Hillsborough disaster did not give rise to a cause of action…);
• Nicholls v Rushton, The Times 19 June 1992 (‘shock and shaking up’ suffered after a road accident falling short of an identifiable psychiatric illness was not compensatble);
• Reilly and Reilly v Merseyside RHA [1995] 6 Med LR 246 (claustrophobia and fear suffered when trapped in a lift for over an hour did not give rise to a cause of action)

Question 26

26. What is the “Issue of the Living Well?” as established in Rothwell v Chemical & Insulating Co (2008)

Answer 26

• Claims by ‘the living well’
• C exposed to risk of harm but yet to develop any physical injuries
• Suffers mental injury because of fear of future disease
• Rothwell v Chemical & Insulating Co (2008): the pleural plaques case
• Not an injury but indicate heightened risk of (eg) mesothelioma
• One C suffering clinical depression because of fears
• Court reiterated no duty not to cause someone to fear for their future