Psychiatric injury Flashcards
Psychiatric Injury
- Sometimes referred to as ‘nervous shock’
- Clear distinction between physical and (pure)
- psychiatric harm
- Different rules
- Physical injury + emotional distress/anguish = Recovery
- Pure psychiatric injury?
Hinz v Berry [1970] QB 40
Mr and Mrs Hinz went for a day out with their family in a Bedford Dormobile. They had four children of their own and fostered four other children. Mrs Hinz was also pregnant with her fifth child. They stopped in a lay-by to have a picnic. Mrs Hinz went across the road with one of the children to pick bluebells. Mr Hinz was in the dormobile making tea with the other children. A jaguar car driven by Mr Berry then came hurtling at speed. A tyre burst and the driver lost control and smashed into the dormobile. Mrs Hinz witnessed the horrible scene. Her husband died and the children were badly injured. As a consequence of this she became morbidly depressed.
Held:
She was entitled to recover as she had demonstrated a recognised psychiatric condition as opposed to feelings of grief and sorrow.
Reilly v Merseyside Regional Health Authority (1994) 23 BMLR 26
• The claimants, Mr & Mrs Reilly, were visiting the defendant’s maternity hospital to see their new born grandson. Unfortunately they got trapped in the overcrowded lift for one hour and 20 minutes. At the time of the incident Mr Riley was 61 and had a pre-existing condition of angina, Mrs Riley was 68 and had a pre-existing condition of claustrophobia. In the lift both suffered symptoms of claustrophobia becoming hot and sweaty, difficulty in breathing and dizziness. Both were in a state of collapse when they were released. They both had difficulty in sleeping and suffered nightmares for a few days after the incident. The trial judge having heard medical evidence held that although their conditions fell short of post-traumatic stress disorder or chronic anxiety, were of sufficient severity to entitle them to recover. The Health Authority appealed on the grounds that in the absence of a recognisable illness there is no compensatable damage. Claustrophobia and fear are normal emotions as oppose to injuries.
Held:
• The appeal was allowed. There must be a recognised psychiatric condition to give rise to damages. Physical symptoms of fear and panic such as sweating and breathing difficulties was not sufficient.
Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310 at p 410E
This case arose from the disaster that occurred at Hillsborough football stadium in Sheffield in the FA cup semi-final match between Liverpool and Nottingham Forest in 1989. South Yorkshire Police had been responsible for crowd control at the football match and had been negligent in directing an excessively large number of spectators to one end of the stadium which resulted in the fatal crush in which 95 people were killed and over 400 were physically injured. The scenes were broadcast live on television and were also repeated on news broadcasts. Sixteen claims were brought against the defendant for nervous shock resulting in psychiatric injury.
At trial ten of the claims were successful. The defendant appealed against the findings in nine and the unsuccessful claimants appealed. The Court of Appeal found for the defendants in all of the claims. Ten appeals were made to the House of Lords. These included claims made by brothers, sisters, parents, a grand-parent and a fiancé. Two of the claimants had been at the ground but in a different area. Some had seen the events unfold on the television, some had heard about the events in other ways. Some had identified bodies at the makeshift mortuary.
Held:The appeals were dismissed.
Lord Oliver set out the distinction between primary and secondary victims. A primary victim one involved mediately or immediately as a participant and a secondary victim one who is no more than a passive and unwilling witness of injury to others. The claimants were all classed as secondary victims since they were not in the physical zone of danger.
Why has liability for psychiatric injury been limited by the courts?
- Floodgates
- The risk of fraudulent claims
- The problem of assessing damages
- Fear of injustice to D & insurers re extent of damage (indeterminate liability)
- Parliament not the courts should develop new areas of liability
Bourhill v Young [1943] AC 92
o Bystanders are expected to have “sufficient fortitude” and “customary phlegm” to endure the calamities of modern life.
- The victim heard the accident and saw the blood on the ground sometime later. This led her to suffer a miscarriage
- There was no foreseeable harm or relationship between the defendant who caused the accident and Bourhill, nor was there a close relationship, therefore should could not claim.
Dulieu v White [1901] 2 KB 669
fear of ones safety
before Alcock
o The claimant was pregnant and behind the bar in her husband’s public house. A horse and cart crashed into the pub. The claimant was not physically injured but feared for her safety and suffered shock. She gave birth prematurely nine days later and the child suffered developmental problems.
o Held:An action could lie in negligence for nervous shock arising from a reasonable fear for one’s own immediate safety.
Primary victim
o Someone within the range of foreseeable physical
o injury
o A participant in the accident.
o For primary victims no distinction is made between physical and psychiatric injury
o There is no requirement of ‘normal fortitude’, the ‘egg-shell skull’ rule applies
Secondary victim
o Someone outside the range of foreseeable physical
o injury (i.e. not in danger of being physically injured)
o A mere witness or one who arrives in the aftermath
o Secondary victims require ‘normal fortitude’
o The control factors apply (see McLoughlin and Alcock) and the duty of care is severely limited.
Page v Smith [1995] 2 All ER 736
- C was driving his car when there was an impact due to another driver’s negligence. He suffered no physical injury, but the trauma re-activated a latent ME condition and had become chronic and permanent so that he was unable to return to his job as a teacher. He was successful at his trial and awarded £162,000 in damages.
- HL drew a distinction between primary and secondary victims
• Primary victim
o Someone within the range of foreseeable physical
o injury
o A participant in the accident.
o For primary victims no distinction is made between physical and psychiatric injury
o There is no requirement of ‘normal fortitude’, the ‘egg-shell skull’ rule applies
Secondary victim
o Someone outside the range of foreseeable physical
o injury (i.e. not in danger of being physically injured)
o A mere witness or one who arrives in the aftermath
o Secondary victims require ‘normal fortitude’
o The control factors apply (see McLoughlin and Alcock) and the duty of care is severely limited.
White v Chief Constable South Yorkshire [1999] 1 All ER 1
- Police officers sued for PTSD after the Hillsborough disaster
- They argued that as rescuers and employees of the police force they should be considered as primary victims
- Successful in CA (Frost v Chief Constable South Yorkshire Police [1997] 1 All ER 540)
- Decision reversed in HL
- HL held the police officers to be secondary victims, as not within the range of foreseeable physical injury
Chadwick v British Railways Board [1967] 1 WLR 912
rescuers
- This case arose from a horrific train crash in Lewisham in which 90 people were killed and many more were seriously injured. Mr Chadwick lived 200 yards from the scene of the crash and attended the scene to provide some assistance. He worked many hours through the night crawling beneath the wreckage bringing aid and comfort to the trapped victims. As a result of what he had witnesses he suffered acute anxiety neurosis and received treatment as an inpatient for 6 months.
- Held: His estate was entitled to recover. The defendant owed Mr Chadwick a duty of care since it was reasonably foreseeable that somebody might try to rescue the passengers and suffer injury in the process.
Alcock Control Mechanisms
used for secondary victims
- C must have close ties of love and affection with the Victim
- C must have been present at the accident or its immediate aftermath
- PI must be caused by the C hearing or seeing the accident or its immediate aftermath
- ‘Sudden shock’
Taylor v A Novo Ltd (2013) EWCA Civ 194
What happens if the primary victim dies three weeks later?
- Cindy Taylor was negligently injured in an accident
- at work
- 3 weeks later she unexpectedly died from pulmonary emboli caused by the accident
- Her daughter Crystal Taylor (CT) witnessed her mother’s death and suffered PTSD
- Sought damages from Novo and succeeded at 1st instance
- if death had occurred at work, then CT would not have been able to recover and to recover later would not reflect ‘what the ordinary reasonable person would regard as acceptable’
- they cited Lord Steyn from White ‘thus far and no further’. CT’s argument would represent an extension of the law, which should be left to Parliament
- Alcock and White re-emphasised – restrictive approach
McLoughlin v O’Brian [1983] AC 410
before Alcock
- PI must be a reasonably foreseeable result of D’s negligence +3 relevant factors to establish duty of care
- proximity of C in time & space to scene of accident
- a close tie of love & affection
- must have seen / heard accident / aftermath with own senses
- wife found out her family had bee involved in a car accident
- one child killed instantly
- mother is taken to hospital and sees the extent of her surviving familys injuries
- sufferes depressions as a result
- HoL extened the class of person who would be considered proximate to the event to those who come within the immediate aftermath of the event
