Psychiatric Injury

Recognised Problems in the Tort of Negligence:

• Omissions

• Public Authorities

• Economic Loss

• Negligent Misstatements

• Psychiatric Injury

Hillsborough Disaster:

Many football fans were severely and fatally injured when they became trapped in an overcrowded standing-only pen. Many cases ensued regarding the police’s negligence in managing the crowd.

In Bland v NHS, a declaration was sought by doctors as to whether they could turn off the life support of a victim of the Hillsborough disaster. The HL granted the declaration.

In Alcock v Chief Constable, 16 claimants brought action when someone they knew died in the disaster. No claimant was physically present in the specific stand but suffered severe shock and psychiatric injury. The HL sets specific rules about victims of psychiatric injury (see Core Rules below).

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Core Rules / Requirements for Psychiatric Injury:

Alcock establishes core requirements for a claim of psychiatric injury to succeed.

Reasonable Foreseeability if Psychiatric Injury:

It must be reasonably foreseeable to the defendant that some person would suffer psychiatric injury.

Ordinary Fortitude:

It must be was reasonably foreseeable that a person of ordinary fortitude would suffer psychiatric injury.

Proximity:

The claimant’s psychiatric injury must be sufficiently closely related to the other person who was physically harmed. The claimant must have all 3 types of proximity.

Proximity of Relationship:

There must be a close relationship of love and affection between the claimant and the person physically harmed (the primary victim).

EG: parent-child, husband-wife etc.

Proximity of Time and Space:

The closer the claimant is in both time and space to the other person’s physical injury, the closer their proximity.

Proximity of Perception:

The more closely the claimant learns of the other person’s physical injury, the more likely they are to recover.

EG: line of sight claim is stronger than hearing on radio or from third party.

In Alcock v Chief Constable, most claimants lose because they saw the events on TV; they did not have sufficient proximity of perception. Of those who were at the football match and saw the events, their claims failed on proximity of relationship.

Sudden and Shocking:

The event causing the claimant’s psychiatric event must be of a sudden and shocking nature. The trauma cannot be gradual.

Recognised Psychiatric Illness:

Any mental suffering cannot be recovered for; the claimant must be suffering from a medically recognised psychiatric illness.

In Hicks v Chief Constable, a lawsuit was brought on behalf of two teenage sisters who were crushed to death at the Hillsborough stadium. C seeking recovery for the psychological terror they must have suffered during the events leading to their deaths. The HL denies the claim.

Bridge LJ: ‘It is perfectly clear law that fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded. Those trapped in the crush at Hillsborough who were fortunate enough to escape without physical injury have no claim in respect of the distress that they suffered in what must have been a truly terrifying experience. It follows that fear of impending death felt by the victim of a fatal injury before that injury is inflicted cannot by itself give rise to a cause of action ....’

This requirement can create issues whereby council have to find medical experts who classify the claimant into a specific illness to meet the criteria.

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Exceptions / Complexities to the Core Rules:

Distinguishing between Primary and Secondary Victims:

A primary victim is directly involved in the accident, whereas a secondary victim is someone who merely witnessed the distressing events but was not directly involved.

In Page v Smith, P was driving their car at the speed limit and suffered from chronic fatigue syndrome. S was driving in the opposite direction and carelessly cut across the road. P braked but could not avoid the crash. P was not physically injured at all, but claims to become permanently fatigued after the crash, leaving him unable to work.

The HL awards £162,000 for P’s loss of earnings. The court draws a distinction between primary and secondary victims seen in previous cases.

The requirements of ordinary fortitude, proximity, reasonable foreseeability and sudden and shocking events are not necessary for a primary victim to succeed in a claim of psychiatric injury. Therefore, it is significantly easier for a primary victim to claim for psychiatric injury.

In White v Chief Constable, five Hillsborough police rescuers claimed for psychiatric injury following the disaster. A question arose as to whether C were primary or secondary victims. If C were secondary victims, their claims would fail on proximity.

The HL holds that rescuers will generally be considered secondary victims unless they themselves are within the scope of danger. C was not in danger themselves, so were unable to recover.

Anticipation of Future Harm:

Even where the claimant suffers a recognised psychiatric illness because they anticipate suffering future harm, they are unable to recover.

In Rothwell v Chemical, C had negligently exposed R to asbestos during their employment. R developed pleural plaques in their lungs, which caused them to fear that they would develop mesothelioma, causing anxiety and depression.

The HL reject’s R’s claim for the physical injury of the plaques as they are only detectable to a trained radiologist and cause no harm in themselves. The HL reject R’s claim for psychiatric injury too; ruling on primary victims in Page only applies to past events, not future ones, so R is a secondary victim who does not meet the requirement of a person of ordinary fortitude (risk too low to worry about).

Unwilling Participants:

The claimant may recover where they feel guilty / blame themselves for what they did to another if this belief in responsibility is reasonable.

In W v Essex CC, E placed a foster child (A) with a family. A had a history of sexually abusing other children, but the family were not informed by the E. A went on to sexually abuse the family’s own children. The court recognises that the parents may be able to recover for the guilt of exposing their children to the foster child.

In Monk v PC Harrington, M was a foreman who helped setup a platform during construction works. The platform collapsed when someone operating a crane crashed it into the platform. One construction worker was killed, and another was injured. M rushed to help rescue the workers. M later suffered from PTSD and claims for psychiatric injury from the crane operator’s employer.

Considering M as a rescuer, the court considers him a secondary victim. Considering M as an unwilling participant, the court concludes that an unwilling participant may be a primary victim, even though they are not in danger themselves. THe court treat M as a secondary victim because it was unreasonable for M to believe that he caused the accident.

Self-Harm:

Where the claimant has intervened to preventing another from self-harming, they are unable to recover.

In Greatorex, D negligently injured himself in a traffic accident while D was drunk. One of the rescuing officers, D’s father, suffered PTSD as a result of seeing his own son in the crash.

The court held that recovery is unavailable to those who suffer psychiatric injury as a result of the physical injury of another, even if they meet the secondary victim requirements.

They state that people should be free to harm themselves and should not be liable for those who come to their aid. Furthermore, it would create family strife if family members could so readily sue one another.

Property:

Where the claimant suffers psychiatric injury as a result of damage to property, they can recover.

In Attia v British Gas, A employed BG to install central heating. A left the property while the work was done. As she returned, A saw smoke coming from her roof and calls the fire brigade. By the time they arrive, the house is on fire and the house is extensively damaged. The court allow A to recover for the psychiatric injury caused by seeing her house on fire and being damaged.

Assumption of Responsibility / Employment:

It is assumed that an employer takes responsibility for their employee, making it easier for an employee to make a successful claim.

Rather ironically, the only way that an employer may prevent the employee suffering psychiatric injury caused by their job is to fire them. Courts remain cautious so as to not make employers disproportionately fire employees to prevent claims.

Intentional Infliction:

Where someone wilfully intends to psychologically harm someone, the claimant may sometimes recover.

Note: that there is a separate tort of intentionally inflicting emotional distress.

In Wilkinson v Downton, W was the victim of a practical joke when D informed her that her husband had broken both his legs. W rushed to see the husband and suffered from nervous shock. Court allowed recovery.

In O v Rhodes, R wrote an autobiography which included details of his sexual abuse as a child. R’s ex-wife (O) claimed, on behalf of their son, that the publication would cause psychiatric harm to the son. O seeking injunction.

The CA granted an injunction, but the SC overturned ruling as publishing true information about R’s own experience is a good excuse to causing the infliction of harm.

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Reform Proposals:

The current law seems quite unsatisfactory. This has prompted debates on how it ought to be reformed.

Abolishing all Special Limitations: [1]

Handford suggests that the special limitations on recovery for psychiatric injury should be abolished. Under this, psychiatric injury should be treated the same as physical injury.

Abolish all Recovery for Psychiatric Injury: [2]

Stapleton suggests that all recovery for psychiatric injury should be abolished.

Alternative 3rd Proposal: [3]

An alternative view would allow recovery for psychiatric injury only where it is reasonably foreseeable that a person of ordinary fortitude could suffer extraordinary psychological harm.

Reasonable Foreseeability:

The psychiatric injury itself should be reasonably foreseeable. The reasonable foreseeability of mere physical harm should not suffice in claims for psychiatric injury.

‘It is hard to see why we should treat psychiatric illnesses and physical injuries as being the same kind of loss [for the reasonable foreseeability test] when in almost every other context we recognize that there is a clear distinction between them.’ [4]

Ordinary Fortitude:

It should be reasonably foreseeable that a person of ordinary fortitude would suffer the psychiatric injury.

The claimant should only be able to recover to the extent that they have ordinary mental toughness. [5] It is always reasonably foreseeable that someone with a psychological sensitivity may suffer from psychiatric injury, but the defendant should not be liable for this abnormality.

Extraordinary Psychological Harm:

Some jurisdictions, such as Canada, have abolished the requirement for a ‘recognised psychiatric injury’. [6]

By limiting the scope of liability for psychiatric injury to extraordinary psychological harms, the dichotomy between recognised psychiatric injury and normal human emotion is resolved. Instead, the dichotomy would be between extraordinary psychological harms and ordinary human emotions. This would enable the claimant to bring a claim even if there was no medically recognised psychiatric injury, but are nonetheless extraordinary.

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Resources:

[EXAM] Psychiatric Injury.pdf

Download PDF • 201KB

[SAMPLE EXAM ESSAY Qs] Psychiatric Injury.pdf

Download PDF • 108KB

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References:

[1] Peter Handford, ‘Psychiatric Injury in Breach of a Relationship’ (2006) Legal Studies 27:1 26-50 [2] Jane Stapleton [3] Nick Sage [4] McBride and Bagshaw, 349 [5] Called ‘customary phlegm’ in Bourhill v Young (1943) [6] Mustapha; Saadati

Cases Mentioned:

Airedale NHS Trust v Bland [1993] A.C. 789

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 (HL)

Hicks v Chief Constable of South Yorkshire [1992] All ER 65

Page v Smith [1996] AC 155 (HL)

White v Chief Constable of South Yorkshire [1999] 2 AC 455 (HL)

Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281

W v Essex County Council [2001] 2 AC 592 (HL)

Monk v PC Harrington Ltd EWCA 1879 (QB)

Greatorex v Greatorex [2000] 4 All ER 769

Attia v British Gas [1988] QB 304

Wilkinson v Downton [1897] EWHC 1, [1897] 2 QB 57

O v Rhodes [2015] UKSC 32