Pure psychiatric injury Flashcards
Why are the courts cautious with pure psych injury?
Floodgates - If we restrict damages to physical harm, there is a foreseeable end point to liability. There could be massive consequential harm which is remote and unforeseeable if we open the floodgates.
- Sense from the courts that psych harm is less significant than physical harm - the brain undergoes changes which often are not attributable to anyone
- Clarity and precdent
What type of harm must a claim for pure psychiatric harm be grounded in?
Needs to be some kind of recognised psychiatric injury (ie depression, PTSD, schizophrenia) - Hinz v Berry
Can you claim psych injury for witnessing property damage?
Remember you can claim for psych harm when it is connected to personal injury, but can you, when it is connected to property damage?
Possible - Attia v British Gas.
British Gas were liable for nervous shock and depression following near destruction of a lady’s home and possessions.
However, may not be usable after Alcock, since in that case it was held you cannot claim in many cases even if you see someone die before you - these don’t seem compatible.
Law pre-Alcock for secondary victims 1: Reasonable fortitude
McLoughlin v O’Brian - Woman informed about road accident, saw her children covered in oil and injured - held she could recover.
Bourhill v O’Young - Mrs Bourhill didn’t see an accident but heard it, witnessed aftermath and suffered nervous shock, giving birth to a stillborn. Held that for such a duty to exist, the claimant must be foreseeable or proximate - she was neither.
Law pre-Alcock for secondary victims 2: Shocking event
Page v Smith - some form of shock is still required.
W v Essex and Alexander - no need for such.
Paul - no need for a sudden, horrifying event - no richter scale of horrifying
Alcock
Hillsborough disaster - legal claims brought by family members who saw family being crushes on TV or in person.
Police cases also brought by police who had to see these incidents.
Held: For secondary victims, psych inj needs to be foreseeable.
Alcock requirements:
- Close tie of love and affection (dearness)
- Personally present or proximate to the immediate aftermath (nearness)
- Witness event with their own unaided senses (hear-ness)
You usually must also show the pre-Alcock criteria of reasonable fortitude and a sudden, horrifying event too.
Policy can be used to limit claimants also.
Alcock requirement 1: Who has a presumed tie of love and affection?
Only marital and parental relationships - for others you must evidence it.
Alcock Requirement 2: Proximity
Present at the scene to see it or its immediate aftermath.
McLoughlin - 2 hours after incident (allowed)
Alcock - Family members travelling across the country (8-9 hrs) was too long
Paul
Paul died of heart attack 14 months after release from hospital. Doctors were negligent - were they responsible for the mental harm which happened to the witnesses?
Held: Doctors do not owe a duty to the family of their patients or any potential witnesses of accidents.
Also no requirement for sudden shocking event - no richter scale of horror
An accident is required for a secondary victim case to be made out - which is an unexpected and unintended event which causes injury by external means.
Thus, the effects heart attacks and health issues caused by negligence on third parties are not recoverable.
Alcock requirement 3: Witnessing it with your own unaided senses
In Alcock, many claimants watched the events on TV, which did not count as it was broadcast under BBC’s regulations and any images of the event would not have been zoomed in enough to see any individual’s suffering.
Potentially livestreams or other telecasts not subject to such regulation may be recoverable.
Requirements for primary victims
Physical injury OR psych injury is foreseeable (so phys injury will suffice)
No Alcock requirements
Apply Page - Zone of danger
Thin skull rule applies - so you take the C as you find them.
No policy limitations
Defining a primary victim - Page + Grieves
Facts: Page in car accident caused by S. Page not physically injured, but it triggered recurrence of fatigue condition.
Held: Type of harm doesn’t need to be foreseeable for primary victims - he doesn’t need to prove that the psychiatric harm was reasonably foreseeable, just that some type of harm was foreseeable.
If he could prove that, his entire physical injury is within the scope of the duty owed.
Grieves: Pleural plaques which have no symptoms are not damage, and so anxiety and psych injury which develop because of fear about these are not recoverable. Different from Page, since Page said you can recover for psych harm if physical harm is foreseeable. In Grieves, the foreseeable physical harm was asbestos-related disease, and the psych harm which resulted was due to his fear of getting it which was different to Page. Endangerment which turns into worry does not suffice.
Are rescuers primary victims?
White - No, where they were not exposed to any risk of physical injury. If they are, then physical injury is reasonably foreseeable and they can claim for psych injury under Page.
Chadwick - Possibly
Unwitting agents/participants as primary victims?
W v Essex - Possible - foster parents adopted sex abuser child who abused their children. Held that D’s negligence causing Cs to become the unwitting cause of their children’s abuse can create sufficient proximity for a claim.
Dooley - Possible - Crane operator’s rope snapped, causing him to think he had killed the people below (although he hadn’t). Held employers owe a duty not to inflict psych injury by making their employees think they have caused another’s death or serious injury. Rope here was too weak so psychiatric injury was foreseeable.
Monk v Harrinton - Platform at a stadium fell and hit people, C had supervised erection of the platform and went to try to help those who were hit, held not to be an unwilling participant as he could not have thought he caused the accident, and not reasonably foreseeable that a person in his position would have suffered psych injury. No damages.
Greatorex v Greatorex
Firefighter came to the scene of his son’s car accident. Sued his son for the PTSD suffered in having to attend to his son in such circumstances.
Held: Grounds in Alcock were met. But, no duty of care owed by a primary victim to their family member as a result of their own injuries. This would restrict individual freedom and encourage family litigation - policy reasons to deny.
Other potential primary victims? Parents whose child’s organs have been retained by the hospital without consent?
re Organ Retention Group Litigation - Held that the risk of psychiatric injury was too improbable to have been foreseen
Stress at work? Hatton v Sutherland
Employers will be liable where they have foreseen or ought to have foreseen psychiatric injury, and we take into account precautions made by the employer eg counselling referrals.
Test is the same regardless of the job - no jobs intrinsically more stressful.
Barber v Somerset
Teacher overworked, had mental breakdown, had to take time off school for his depression/stress.
Eventually had mental breakdown, couldn’t work again.
School owed a duty to take action to help Mr Barber, which they breached after knowing of his ailment and not doing anything.
Hartman - doctor stressed after accident
Suffered depression after a patient died in an accident, but not foreseeable that she would suffer psych harm - original evidence was confidential and she suffered stress through an accident.
McLoughlin v Jones - loss of liberty
Loss of liberty can give rise to psychiatric damage - negligent solicitors conducted poor defence which led to C going to prison and suffering psych harm.
CA held this can go to trial - negligent solicitors can pay compensation for foreseeable damages so as long as it is foreseeable a claim is possible.
Hale LJ suggested victims here could be primary victims - loss of liberty is as much of an interference as loss of a limb and it is obviously foreseeable that any negligence in defending such claimants will result in conviction and imprisonment.
Butchart v Home Office - impact of cellmate committing suicide
Cs cell mate committed suicide - Held D (Prison Service) owed duty of care to take reasonable steps to avoid causing him psychiatric harm, and they knew or ought to have known that the prisoner was vulnerable to psych harm.
Law Com Report 1998
- expanding and providing a list of relationships that would give rise to a close tie of love and affection.
- removing the shock requirement and requirements of physical and temporal proximity
- recommended imposing a statutory DoC to avoid psychiatric illness with requirements being a close tie and reasonable foreseeability
