Psychiatric Injury Negligence. Psychiatric injury is the term usually used in negligence cases to describe an injury that affects the mind, rather than the body, or a physical injury brought on by an effect on the mind. In earlier cases, it was often referred to as “nervous shock”, but this term is completely misleading.
It seems to imply that claimant can seek damages because they are shocked at the result of a defendant’s negligence, or perhaps upset, frightened, worried or grief-stricken.
This is not the case. In order to claim for the so-called nervous shock (more properly called psychiatric injury), a claimant must prove that they have suffered from a genuine illness or injury.
In some cases, the injury or illness may actually be a physical one, brought on by a mental shock: cases include a woman, who had a miscarriage as a result of witnessing the aftermath of a terrible road accident. See the case of Bourhill V. Young (1943). Though the woman’s claim she failed on other grounds, and a man who was involved in an accident but not physically injured in it, who later suffered a recurrence and worsening of the disease myalgic encephalomyelitis (M.E), also known as chronic fatigue syndrome, as a result of the shock. See the case of Page V. Smith (1995).
If the shock has not caused a physical injury or illness, the claimant must prove that it has caused what Lord Bridge in the case of McLoughlin V. O’Brian (1943) described as a “positive psychiatric illness”. Example includes clinical depression, personal changes and post-traumatic stress disorder, an illness in which a shocking event causes symptoms including difficulty sleeping, tension, horrifying flashbacks and severe depression.
It is important to be clear that this category does not include people who are simply upset by a shock, regardless of how badly they must have a recognized psychiatric illness, and medical evidence will be needed to prove this. Consequently, we will use the term psychiatric injury from now on, though ‘nervous shock’ is referred to in many judgments.
Claimants who can prove such injury can only claim in negligence if they can establish that they are owed a duty of care by the defendant, with regard to psychiatric injury (and of course that the defendant’s negligence actually caused the injury).
This will depends on their relationship to the event that caused the shock, and case law has developed different sets of rule, covering different categories of claimant. The number of categories has varied at different stages of the law’s development, but since the most recent House of Lords case of White & others V. Chief Constable of South Yorkshire, there are now three:
- Those who are physically injured in the event that the defendant has caused, as well as psychiatrically injured as a result of it. These categories of people are called the primary victims.
- Those who are put in danger of physical harm, but actually suffer only psychiatric injury. These groups of persons are also called the primary victims.
- Those who are not put in danger of physical injury to themselves, but suffer psychiatric injury as a result of witnessing such injury to others, these people are called the secondary victims.
A duty of care to secondary victims will arise only if they satisfy very restrictive requirement.
An accident victim who suffers physical injury due to the negligence of another can recover damages not just for the physical injuries but also for any psychiatric injury as well. The ordinary rules of negligence apply to such cases.
The category of primary victims also includes those who are put at risk of physical injury to themselves, and who do not actually suffer physical injury but do suffer psychiatric injury as a result of the dangerous event. The case of White & ors V. Chief Constable of South Yorkshire (supra) confirms that if a person negligently exposes another to a risk of physical injury, they will be liable for any psychological injury that this exposure may cause the other person, even if the threatened physical injury does not in fact happen.
This was established by the case of Dulie V. White & Son, the claimant was serving in a pub when one of the defendant’s employees negligently drove his van and horses into the premises.
The claimant feared for her safety, and although she was not actually struck she was badly frightened and suffered a miscarriage as a result. The defendant was found liable even though there was no physical impact, as he could have foreseen that the claimant would have suffered such shock.
The leading modern case of primary victims, who are exposed to the risk of injury, but not actually physically hurt, is the case of Page V. Smith (1995),
Facts of the case were as follows:
The claimant was involved in an accident that could have caused physical injury, but fortunately he escaped unhurt. Some years earlier, he had suffered from a serious illness called myalgic encephalomyelitis. He had this illness for several years but, before the accident happened, it had gone into remission. After the accident, his old symptoms began to recur, and he claimed that this had been by the shock of being involved in the accident.
The House of Lords held:
That where it was reasonably foreseeable that a defendant’s behavior would expose the claimant to a risk of physical injury, there was a duty of care with regard to any injury that the claimant suffered, including psychiatric injury. It was not necessary that psychiatric injury itself was foreseeable.
In addition, the approach was further followed in the case of Simmons V. British Steel Plc (2004). The claimant had been physically injured in a workplace accident, and as a result of his shock and anger at what had happened to him, he developed a severe skin condition. This led to him having to take a great deal of time off work and, as a result of that, he developed a depressive illness. The House of Lords held that the employers were liable for the skin condition and the depressive illness, as well as the original injury. They had exposed him to a foreseeable risk of physical injury, and they were therefore liable for all the injuries that resulted from that risk.
It did not matter that the actual type of injuries was not foreseeable.
Although a claimant can claim for psychiatric injury caused by fears for their own physical safety even though no physical injury actually occurred, there must be some basis for the fears. In the case of McFarlance V. Wilkinson, the court of Appeal held that the fear must be reasonable, given the nature of the risk and the claimant’s situation. The case arose out of the terrible event on the Piper Alpha Oil rig, when the rig caught fire and many people died as a result of the explosion.
The claimant for the psychiatric injury suffered as a result rejected the Court of Appeal, on the grounds that the boat he was on was clearly never in any danger, and so his fear for his safety was unreasonable. (For reasons that will be obvious when we look at the witness cases above and below, merely seeing the disaster would not have been sufficient round for his claimant’s claim).
What is unclear is whether a claimant can be considered a primary victim if they were not actually in physical danger, but had reasonable grounds for thinking that they might be. The two leading judgments in White’s case differ slightly in this area: Lord Steyn says the claimant must have “objectively exposed himself to danger or reasonably believe that he was doing so”. On the other hand Lord Hoffman refers only to primary victims being “within the range of foreseeable physical injury”.
Of course, in the majority of cases the reasonable belief that the claimant was in danger will arise from the fact that they actually were, but, in the throe of an emergency situation, it is not difficult to imagine making out a case for believing oneself to be in some danger when in fact there is no physical risk at all, and it is a pity that their Lordships did not make themselves clearer on this crucial point.
SECONDARY VICTIMS – NEGLIGENCE PSYCHIATRIC INJURY IN TORT
In the case of White & Ors V. Chief Constable of South Yorkshire (1999), establishes that sufferers of psychiatric injury who are not either physically injured or in danger of being physically injured are to be considered secondary victims. Among the important cases that have fallen within this group are claims made by:
- People who have suffered psychiatric injury as a result of witnessing the death or injury of friends, relatives or work colleagues.
- Those whose psychiatric injury has been caused by them unwittingly bringing about death or injury to others, where the ultimate cause was someone else’s negligence (known as unwitting agents’’)
- Those who have suffered psychiatric injury as a result of acting as rescuers, both those who have voluntarily given assistance to others in danger, and those who have done so as a result of their jobs, such as police officers.
NOTE: a claimant who suffers psychiatric injury but is not physically injured or at risk of physical injury is a secondary claimant who must pass the tests set down in Alcok’s case. This category includes rescuers and employees of the defendant.
In the case of Mcloughlin V. O’Brian,
Facts of the case were as follows:
The claimant’s husband and children were involved in a serious car accident, caused by the defendant’s negligence. One of her daughters was killed and her husband and two other children badly injured. The claimant was not with her family when the accident happened, but was told about it immediately afterwards, and rushed to the hospital.
There she saw the surviving members of her family covered in dirt and oil, and her badly injured son screaming in fear and pain. She suffered psychiatric injury as a result, including clinical depression and personality changes.
The House of Lords allowed her claim, even though up til then only witnesses who actually present at the scene of a shocking incident had been allowed to recover for psychiatric injury. The decision itself was rather confused, in that Lord Bridge suggested that the sole criterion was still reasonable foresight, and the claimant could recover because her psychiatric injury was reasonably foreseeable, but Lord Wilberforce and Edmund-Davies favoured a different approach.
They suggested that while psychiatric injury did have to be reasonably foreseeable, this in itself was not enough to create a duty of care towards secondary victims. Unlike other types of claimant, secondary victims would have to satisfy a series of other requirements, concerning their relationship to the primary victims of the shocking incident and their position with regards to that incident. This second approach is the one that has since found favor with the courts, and it was explained in details in Alcock V. Chief Constable of South Yorkshire.
In the case of Alcock V. Chief Constable of Yorkshire,
Facts of the case:
Issue Arose from the Hillsborough football stadium disaster in 1989. The events that gave rise to the case took place during the 1989 FA Cup Semi-final match between Liverpool and Nottingham Forest. All tickets for the match had been sold, and it was being shown on live television.
However, play had to be stopped after 6 minutes because so many spectators had been allowed onto the terraces that some were being crushed against the high fences that divided the terraces from the pitch. A total of 95 people died in the tragedy that followed, and another 400 needed hospital treatment for their injuries.
The South Yorkshire police were responsible for policing the ground, and a public inquiry found that the incident was caused by a negligent decision on their part, which allowed too many people into the ground. Claims for physical injury and death were settled by the police, as were others for psychiatric injury that clearly fell within the accepted categories of those who could make a claim for this type of damage. This left two further groups who claimed psychiatric injury as a result of the tragedy: relatives and friends of those injured or killed, whose claims were examined in Alcock.
Alcock was a test case in that the specific claimants were chosen because between them they represented a range of relationships to the dead and injured, and positions in relation to the incident at the ground, which were held by around 150 other people who claimed to have suffered psychiatric injury as a result of the tragedy. They included parents, grandparents, brothers, brother-in-law, fiancées, and friends of the dead and injured, who had either been at the stadium when the disaster occurred and witnessed it at first hand, been told the news by a third party, or had to identify someone in the temporary mortuary at the ground.
The claimants argued that the test for whether they were owed a duty of care was simply whether their psychiatric injuries were reasonably foreseeable, as Lord Bridge had suggested in McLoughlin. The House of Lords took a different view, pointing out that while it was clear that death and injuries in traumatic accidents commonly caused suffering that went beyond the immediate victims, it was generally the policy of the common law not to compensate third parties. They held that although some exceptions could be made, they should be subject to much stricter requirements than those that applied to primary victims.
The starting point, they said, was that a secondary victim must prove that psychiatric injury to secondary victims was a reasonably foreseeable consequence of the defendant’s negligence. White confirms earlier cases in stating that this will only be established where a bystander of reasonable fortitude would be likely to suffer psychiatric injury, if the claimant only suffers psychiatric because they are unusually susceptible to shock, reasonable foreseeability is not proved.
However, it was pointed out that this rule should not be confused with the “eggshell skull” situation seen, for example, in Page V. Smith, where as a result of psychiatric injury the damage is more serious than might be expected. So long as a bystander of normal fortitude would be likely to suffer psychiatric injury, it does not matter that psychiatric injury is made more serious by some characteristic personal to the claimant, but if the psychiatric injury would not have occurred at all to someone without the claimant’s particular susceptibility, there is no claim.
Once reasonable foreseeability is established, there are three further tests that the courts must consider:
- The nature and cause of the psychiatric injury.
- The class of person into which the claimant falls, in terms of their relationship to the primary victims.
- The claimant’s proximity to the shocking incident, in terms of both time and place.
NOTE: claimants who suffers psychiatric injury as a result of witnessing shocking incident, but are not physically injured or at risk of physical injury, are owed a duty of care only if their psychiatric injury is caused by a sudden shock, they have a sufficiently close emotional tie to the primary victims, and they were sufficiently close in space and time to the shocking incident.
The Nature And Cause of The Psychiatric Injury
Like primary victims, secondary victims must prove that their psychiatric damage amounts to a recognized illness. They are also subject to an additional requirement, that the psychiatric damage must have been caused by the claimant suffering a sudden and unexpected shock caused by a “horrifying event”. This excludes, for example, cases in which people suffer psychiatric illness as a result of the grief of bereavement, or the stress and demands of having to look after a disabled relative injured by the negligence of another.
In the case of Sion V. Hampstead Health Authority, the claimant had developed a stress-related psychiatric illness as a result of watching his son slowly die in intensive care as a result of negligence medical treatment. It was held that as the father’s psychiatric illness had not been caused by a sudden shock, he could not recover damages for it.
A contrasting case is North Glamorgan NHS Trust V. Walters; here the claimant was the mother of a baby boy who died after receiving negligence treatment for which the defendants were responsible. The little boy, Elliot was ill in hospital and his mother was with him. Unknown to her at the time, the hospital had misdiagnosed his illness. She woke up to find him choking and coughing blood, and was told by the doctors that he was having a fit, but that he was very unlikely to have suffered any serious damage. Later the day, he was transferred to another hospital, where she was told – correctly-that he had in fact suffered severe brain damage and was in a coma, she was asked to consider switching off his life support machine. She and her husband agreed to this on the following day.
The event caused her to suffer a psychiatric illness, but the hospital argued that they were not liable for this as a it was not caused by a sudden shock, but by a sequence of events that took place over 36 hours.
The Court of Appeal disagreed: it said that the horrifying event referred to in Alcock’s case could be made up of a series of events, in this case, witnessing the fit, hearing the news that her son was brain-damaged after being told that he was not, and then watching him die. Each had their own immediate impact, and could be distinguished from cases where psychiatric injury was caused by a gradual realization that a child was dying.
The court has held that shock can be the result not just of injury or death to a loved one but also of damage to property. In the case of Attia V. British Gas, British gas was installing central heating into the claimant’s house. She had spent many years decorating and improving her home and she was very attached to it.
When she returned home in the afternoon she found her house on fire. It took the fire brigade four hours to get the blaze under control, by which time her house was seriously damaged. The fire was caused by the negligence of the defendant’s employees.
British Gas accepted their liability for the damage to the house but the claimant also sought damages for the nervous shock she had suffered as a result. The Court of Appeal accepted that she could make a claim for nervous shock resulting from the incident.
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