Tort Law - Psychiatric Injury Flashcards
What counts as psychiatric injury?
A recognised medical condition or shock-induced physical injury, e.g. heart attack; worsening of an existing physical condition through nervous shock [thin skull rule].
What is the definition of a primary victim?
Someone who suffers psychiatric harm as a result of REASONABLE FEAR FOR THEIR OWN SAFETY (objective test).
This is not the same as an ACTUAL VICTIM. Primary Victims do not suffer physical harm.
If someone’s condition gets worse as a result of nervous shock, can this be counted as “psychiatric harm”? Would they be a primary or secondary victim?
Yes, they could be a primary victim.
This includes the worsening of an existing condition, e.g. someone’s ME getting worse and rendering C permanently disabled - AS A RESULT OF BEING PUT IN REASONABLE FEAR FOR ONE’S LIFE.
(Primary Victim; Page v Smith).
What is the definition of a secondary victim?
What is the Alcock criteria for deciding if secondary victims can sue for pure psychiatric harm?
Secondary victims are not in reasonable fear their lives (immediate danger zone), but they do witness a traumatic event OR its immediate aftermath.
Alcock Criteria:
1. A close tie of love and affection to the person killed, injured or imperilled
- Witness the event with their own unaided senses (not via a 3rd party)
- Proximity to the event or its immediate aftermath
- The psychiatric injury must be caused by a shocking event
What is the legal position of rescuers in claiming psychiatric harm?
Rescuers are not given special rules and are classified as primary of secondary victims under the normal law on psychiatric harm.
For example, rescuers who participate in saving people in the immediate danger zone are primary victims (Chadwick v BRB).
Contrast where the police at Hillsborough were secondary victims because they had not been exposed to danger (White v Chief Constable); note also the policy decision that allowing the police to recover in circumstances where NONE of the families satisfied the secondary victim test would have caused a legal-political outrage!
(Elsewhere in law, rescuers are treated slightly more favourable, e.g. it was reasonable Dr Baker would rush into a carbon monoxide-filled well and therefore his actions were NOT novus actus interveniens when his estate claimed in tort against Hopkins & Sons Ltd. He was not “unreasonably” brave because he spoke to the 2 workers trapped in the well and tied a strong rope to himself before descending).
What is the legal position of bystanders in claiming psychiatric harm?
Bystanders are treated under the normal rules on psych. harm: to be primary victims, they must have reasonably been in fear for their lives (objective test). Recovery is limited to those actively involved in the rescue.
In MacFarlane v EE Caledonia - the Claimant was onboard a rescue ship, a safe distance away from the Piper Alpha oil rig disaster. Despite seeing some horrific scenes when people were rescued onboard his vessel, he was not reasonably in fear for his life / physical safety. Recovery is limited to those actively involved in the rescue.
A neighbour notices their elderly neighbour’s house is on fire. Despite all the smoke, the neighbour can just about see that their elderly neighbour is fast asleep downstairs. The neighbour breaks into the house to rescue the elderly neighbour. Following the rescue, the neighbour suffers respiratory failure due to inhalation of smoke and also suffers clinical depression.
Is the person an actual, primary or secondary victim?
The neighbour is an actual victim as they have suffered physical injury (respiratory failure) as well as psychiatric harm.
What is the standard/test for whether D owes a DOC to a primary victim?
Objective Test: D must have reasonably foreseen that C might suffer PERSONAL INJURY
(No need to foresee psychiatric harm from the outset, as “personal injury” covers both physical OR psychiatric injury - it does not matter which one, provided it was REASONABLY FORESEEABLE!).
What are the 4 stages in establishing liability for a primary victim?
- OBJECTIVE TEST: Was personal injury reasonably foreseeable from D’s conduct/omission?
- IS THE HARM MEDICALLY RECOGNISED?
- temporary emotions of fear, distress or mental rumination are NOT covered.
- fears as to how the children will cope without a father, worry about your financial strain as a widow; grief & loss are NOT recoverable. - IS THE PHYSICAL/PSYCH. HARM “MATERIAL”?
- EG: miscarriage; heart attack; PTSD; clinical depression; M.E.
- Claiming pain in leg was not “material” and it stemmed from “anxiety and stress” which, without diagnoses, expert evidence or precedent, are not beyond normal human emotions like grief or panic (Mazhar Hussain). - SUFFICIENT PROXIMITY / IS IT JUST, FAIR AND REASONABLE TO IMPOSE THE D.O.C?
- If D acts negligently, and foreseeably, puts C in danger and fear for their safety, it is highly likely the courts will impose a DOC.
Is the approach to “proximity in time and space” requirement interpreted narrowly or widely?
Can you remember what happened in the case of Bourhill v Young?
Narrowly construed for policy reasons.
A pregnant woman was on a tram and heard (but did not see) a motorcycle crash. As she got off the tram, she saw the scene around 15 metres away and the body had been removed, but lots of blood remained on the floor. She went into nervous shock and a number of weeks later, her baby was born stillborn as a result.
Held: She was not sufficiently proximate to be considered a secondary victim. As Mrs Young was so far away, Mr Bourhill did not owe her a duty - her personal injury could not have been reasonably foreseen due to her far-off proximity (and it was only 15 metres away!)
What is the definition of “a close tie of love and affection”?
In what cases are such “close ties” rebuttably presumed?
Rebuttable presumption for:
- wife and husband
- parent and child
- engaged couples
Otherwise, it is on the Claimants to prove this close tie.
What is the rule we get from Greatorex v Greatorex?
You cannot sue a family member for psychiatric harm suffered as a result of the D’s self-inflicted injuries
In this case, the D went drink-driving with a friend. His father turned up to the immediate aftermath as lead fireman when his son was trapped, unconscious and suffered severe head trauma. C tried to his son, the actual victim, as the Defendant whose negligent, drunk-driving caused him severe PTSD.
What is an example of “immediate aftermath” and how does it apply to secondary victims?
Secondary victims - despite not being in reasonable fear for the phsyical safety / being outside of the danger zone - can still claim if they witnesses the traumatic event OR ARRIVED AT THE IMMEDIATE AFTERMATH.
(McLoughlin v O’Brian): Wife succeeded where she, was informed, drove immediately to the hospital and saw her children and husband covered in blood, dirt and in pain. She suffered a personality change, severe shock and depression.
Alcock: C1 identified his dead brother at mortuary, 8 hours after the Hillsborough disaster - not the “immediate aftermath”.
McLoughlin v O’Brian: Wife/mother arrived 2 hours at hospital to her injured family in the same condition.
How does this rule apply in practice, and to whom:
- event must be perceived through one’s own senses.
This is one of the Alcock criteria applicable to Secondary Victims.
This means that to be an eligible victim, you cannot be told about the traumatic event (or its aftermath) via newspaper, television or telephone. You must experience it in-person with your own senses.
It is possible that a live television broadcast where it is CLEAR that people have died, could count as through one’s own senses (but given the policy reasons - it would not be guaranteed or likely!).
How does this rule apply in practice, and to whom:
- psychiatric harm must be caused by nervous shock
This is one of the Alcock criteria applicable to Secondary Victims.
This means that to be an eligible victim, you must have a reaction “to the immediate and horrifying impact”, and a “sudden assault on the nervous system” (Alcock).
Example: Son suffered a motorcycle injury and the doctor’s failed to identify his kidney bleed. He then went into a coma, deteriorated over a prolonged period and died 14 days later. His father was at his bedside for all of this time but his appeal was dismissed. There was no traceable “shock” to the sight or sound of a horrifying event. In particular, when the son’s death was occurred, it was expected - not surprising (Sion v Hampstead HA).
Example: The NHS Trust (D) negligently failed to diagnose C’s infant son (B)’s hepatitis. B then suffered a massive seizure which C witnessed. C was initially informed that B had no brain damage but this was wrong - he suffered severe brain and damage and he would have no quality of life. C - over a 36-hour, seamless and uninterrupted “shock” - was a valid secondary victim. C agreed to turn off B’s life support and B died in her arms.
C successfully sued because she SUFFERED NERVOUS SHOCK as a result OF THE SUDDEN INFORMING HER OF HER SON’S SEVERE BRAIN DAMAGE; it did not matter that the events later transpired over numerous hours (Walters v Glamorgan NHS Trust).
