Psychiatric Injury

Question 1

Key elements for defining the term ‘psychiatric injury’?

Answer 1

• Must be recognised, or positive psychiatric illness
• So what is and isn’t recognised?
• YES: PTSD, clinical depression
• NO: Grief, isolated flashbacks
• The questions is decided by reference to precedent and by medical evidence

Question 2

What are the three ‘claimants’ considered here?

Answer 2

1. actual victim/claimant
2. primary victim/claimant
3. secondary victim/claimant

Question 3

Is psychiatric injury a tort?

Answer 3

No - negligence is the tort, the loss is psychiatric injury.

Question 4

Are policy arguments important re. psychiatric harm?

Answer 4

Yes -

• floodgates
• crushing liability
• fraudulent claims

Question 5

Relevance of Dulieu v White [1901]?

Answer 5

was held that to recover, a claimant should have been placed in fear for his own safety.

Question 6

Relevance of Bourhill v Young [1943]?

Answer 6

Lord Macmillan’s quote:
“…in the case of mental shock there are elements of greater subtlety than in the case of an ordinary physical injury and those elements may give rise to debate as to the precise scope of legal liability.”

Question 7

Relevance of Hambrook v Stokes Bros [1925]?

Answer 7

Dulieu restriction lifted, but instead it was held that recovery could only be made where the claimant perceived the events giving rise to the claim unaided and was not told of traumatic events by another.

Question 8

Relevance of McLoughlin v O’Brian?

Answer 8

High point: C informed that there had been an accident involving her family.

• she saw members of her family in a distressed and injured state as casualty department.
• suffered psychiatric harm.
• HoL held that she was entitled to recover and were happy to extend the liability to those who witnessed the IMMEDIATE AFTERMATH of an event.

Question 9

When was the concept of ‘primary’ and ‘secondary’ victim introduced? Why is the distinction important?

Answer 9

KEY Alcock v Chief Constable of South Yorkshire Police [1992] case.
- distinction is crucial because the courts apply different tests for establishing whether a duty of care is owed depending on whether the claimant is a primary victim or a secondary victim.

Question 10

Who is a primary victim? Cases (2)?

Answer 10

Someone who suffers psychiatric harm as a result of reasonable fear for their own physical safety (objective test). Involved in the traumatic event in question and is within the foreseeable range of physical injury i.e. the danger zone, but they only suffer psychiatric harm.

Cases:

1. Dulieu v White: pregnant barmaid; D crashed coach and horses into wall. Psychiatric harm (and later miscarriage) - entitled to recover as primary victim.
2. Page v Smith [1996]: car crash between C and D: C suffered no physical injury, but car crash worsened E (Myalgic Encephalopathy) condition so as to render him permanently disabled. He was a primary victim because his condition arose from reasonable fear for his own physical safety.

Question 11

Who is a secondary victim? Cases? (2)

Answer 11

Suffers psychiatric harm due to fear for someone else’s safety, normally a close relative. They are not in any fear for their own physical safety. The secondary victim witnesses the traumatic event in question (or its immediate aftermath), and suffers psychiatric harm as a result, but is not involved in the event nor are they in the danger zone.

Cases:

1. McLoughlin v O’Brian: C suffered psychiatric damage as a result of concern for her family from witnessing a shocking event. She did not fear for her own safety at any point nor was she in the danger zone.
2. Alcock: (hillsborough on tv) - none were in danger or reasonably feared for their own safety.

Question 12

What’s the position of bystanders and rescuers re. psychiatric injury?

Answer 12

As caused the courts some difficulty in the past and they have not always been consistent in their approach. 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 victim or a secondary victim.

Question 13

Four cases re. bystanders and rescuers?

Answer 13

Y 1. Chadwick v British Railways Board [1967]: claimant succeeded in his claim for psychiatric harm as a result of helping to rescue victims from a horrific rail crash over the course of 12 hours. (primary victim - carriage could have fallen on him). –> contrast with
N 2. White v Chief Constable of the South Yorkshire Police [1999]: police officers on duty during the Hillsborough football stadium disaster. Status as employees and professional rescuers did not automatically convert the claimants from secondary victims to primary victims - no danger to them.
Y 3. Cullin v London Fire & Civil Defence Authority [1999]: fire fighter who suffered psychiatric injury after witnessing two colleagues trapped inside a burning building. His attempt at rescuing them failed. C was either exposed to the danger or reasonably believed he could be subjected to physical injury. As such he was a primary victim.
N 4. McFarlane v EE Caledonia Ltd [1994]: (PTSD) suffered by the claimant after an oil rig disaster (Piper Alpha). he court rejected the claimant’s claim as a primary victim for psychiatric harm, because they did not feel that the claimant was in fact in reasonable fear for his physical safety at the time. The test is objective not subjective. Also not a rescuer - he was mere bystander.

Question 14

What’s the test for duty of care for primary victims (loosely)?

Answer 14

1. Psychiatric harm suffered must be medically recognised
2. Physical harm must be reasonably foreseeable
3. Proximity and fair, just and reasonable

Question 15

Can liability arise for fear, distress or mental grief caused by negligence under 1.? Case?

Answer 15

No: Reilly v Merseyside Regional Health Authority [1995]: refused for couple trapped in a lift for over an hour for what the court considered to be only normal human emotion (fear and claustrophobia).

Question 16

What might the court refer to for medical definition?

Answer 16

Reference is made to the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM) and the Glossary of Mental Disorders in the International Classification of Diseases (ICD).

Question 17

Key case for medical illness: depression?

Answer 17

Hinz v Berry [1970]:
Family in park where car came crashing into the field and killed the claimant’s husband and injured her children.
Claimed damages for (1) grief and sorrow; (2) worry about her children and how they would cope with losing their father; (3) financial strain adjusting to life as a widow; and (4) depression caused by the shock of witnessing the accident.
Court ONLY allowed for depression.

Question 18

Can a physical illness, sustained after the event in question, and resulting from psychiatric harm may also form the subject of a claim?

Answer 18

Yes: miscarriage (see Dulieu v White), or a heart attack. It must, however, be first established that the psychiatric condition giving rise to the physical symptoms was a recognised psychiatric condition, and that both the psychiatric injury and the physical injury are ‘material’.
Example: Mazhar Hussain v Chief Constable of West Mercia [2008]: he claimant suffered from anxiety and stress which he argued caused numbness in his left arm and leg. The court held that stress and anxiety were not themselves (in the form he suffered them) medically recognised psychiatric illnesses, and the physical symptoms did not amount to material damage.

Question 19

What other new medical conditions are being recognised? (3) and their cases?

Answer 19

1. PTSD: Re GB, RB and RP (1997)
2. ME (Myalgic Encephalomyelitis) :Page v Smith
3. grief or bereavement may be classified as a positive psychiatric illness where the pathological grief syndrome goes beyond what is classed as normal human emotion: Vernon v Bosley (No 1) [1997]

Question 20

Key case for 2. physical harm must be reasonably foreseeable?

Answer 20

Page v Smith [1996]: D argued negligent driving but argued that psychiatric damage suffered (ME) not foreseeable.
HoL disagreed: said for primary victims if physical injury foreseeable that is sufficient. No need to foresee psychiatric as well.
Court also confirmed ‘thin skull’ rule.

Question 21

What happens with proximity and fair, just and reasonable re. primary victims?

Answer 21

Courts will imply after foreseeability - usually straightforward.

Question 22

After Mcloughlin, what became the leading case for secondary victims?

Answer 22

Alcock v Chief Constable of South Yorkshire [1991]

Question 23

What’s the Alcock criteria?

Answer 23

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.
(e) Fair, just and reasonable)…

Question 24

Facts of Alcock?

Answer 24

Hillsborough - thousands watched on TV. Potential number of C’s huge. Secondary victims - lacked proximity.

Question 25

Under a) (foreseeability), how is it different for secondary victims than primary victims?

Answer 25

For secondary victims, they must establish that the psychiatric harm suffered was reasonably foreseeable in a person of normal fortitude in the same circumstances. Contrast this with the criteria necessary for a primary victim (in which only physical injury must be foreseeable).

Question 26

Key case for secondary victims foreseeability of psychiatric harm?

Answer 26

Bourhill v Young [1943]: it was observed that psychiatric damage was more subtle than physical harm.
D was motorcyclist crashed and died. Pregnant C did not see but heard of it and saw blood on road. Psychiatric harm and miscarried month later.
No duty of care owed - 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 would suffer psychiatric harm.
Important criteria: trauma witnessed must be considered such as to be likely to cause psychiatric injury in a person of reasonable fortitude.

Question 27

What’s needed for proximity of relationship? When is this rebuttably presumed? Does this ever apply for stranger/bystander? Can secondary victim ever claim if victim feared for is D?

Answer 27

Bonds of love and affection.
Rebuttably presumed in the case of parents, children, spouses and engaged couples. However, this is not so for grandparent and grandchild or between siblings (Alcock).
Strangers: HoL in Alcock thought that recovery might be possible if the accident or incident was particularly horrific, although this was denied in McFarlane v EE Caledonia Ltd [1994]
Greatorex v Greatorex [2000]: a secondary victim not be able to claim if the actual victim for whose safety they feared, is actually the defendant in the case.

Question 28

What’s needed for proximity in time and space?

Answer 28

‘Immediate aftermath’ or present at scene
Compare:
Alcock - 8 hours later
McLoughin - 2 hours later
Galli-Atkinson v Seghal [2013] - 2 hours - (daughter killed on footpath) ‘uninterrupted sequence of events’
Taylor v A Novo (UK) Ltd [2013] - 3 weeks - key question of when the ‘event’ occurred - held original event (3 weeks prior) was “what the ordinary reasonable person would regard as acceptable”.

Question 29

What is Alcock make clear re. a secondary victim who is merely told about a shocking event (including via a newspaper or television)?

Answer 29

No duty. Possibility left open…

Question 30

2 contrasting cases for ‘sudden shock’?

Answer 30

Y North Glamorgan NHS Trust v Walters [2002]:
“A drawn-out and ‘seamless’ shock:”
10 month old baby in intensive care - 36 hours - sudden because each event had immediate impact.
N Sion v Hampstead Health Authority (1994):
“A gradual realisation:”
2 weeks - not sudden reaction to horrifying event.

Question 31

Recommendation made by Law Commission, for example in its report ‘Liability for Psychiatric Illness’ (Consultation Paper No 249 1995) re. psychiatric injury?

Answer 31

Need for legislative intervention. One important recommendation is that a statutory duty of care would arise when a claimant suffers a reasonably foreseeable psychiatric illness as a result of the death, injury or imperilment of a person with whom the claimant had a close tie of love and affection. There would be no need for the claimant to be close to the accident in time and space.

Question 32

What’s meant by ‘assumption of responsibility’ cases?

Answer 32

Psychiatric harm cases where the claimant cannot be classified as an actual, primary or secondary victim.
For example;
employer/employee (Waters v Commissioner of Police for the Metropolis [2000],
doctor/patient (AB v Leeds Teaching Hospital NHS Trust [2004])
police/police informant (Swinney v Chief Constable of Northumbria Police [1996]).

Question 33

Can ‘assumption of responsibility’ ever be found for occupational stress claims where psychiatric harm is caused by the stress of work? Case?

Answer 33

Yes - key case (first case…):
Walker v Northumberland County Council [1995]:
Social services manager with a heavy and emotionally demanding caseload. Nervous breakdown - never given additional support - second breakdown.
Held: employer owes their employees a duty of care in respect of psychiatric harm caused by stress at work. No breach for first, but breach for second.

Question 34

Case(s) that laid out when an employer would be in breach in occupational stress claims?

Answer 34

In Barber v Somerset County Council [2004], the House of Lords approved guidance set out by the Court of Appeal in Hatton v Sutherland [2002]:

1. Psychiatric harm to the claimant was (or ought to have been) reasonably foreseeable to the employer;
2. Foreseeability depends upon the relationship between the characteristics of the claimant and the requirements made of them by the employer, including:
   (a) The nature and extent of the work being undertaken. Consider if the workload is much more than normal for that job, whether the work is particularly emotionally or intellectually demanding etc;
   (b) Signs of stress shown by the claimant. Indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise they should do something; and
   (c) The size and scope of the business and availability of resources. This includes the interests of other employees and the need to treat them fairly. Always consider the steps which the employer could and should have taken.

This area of law is likely to develop.