- Situation where D has caused C only psychiatric injury- it’s a free standing damage. Question- can the C claim for such an injury and if so what are the limits to such a claim?
- Last 140 years there’s been a wide spectrum of opinions on this. Some say such injury is like physical injury and some are sceptical and say that you shouldn’t allow such claims.
- Why it isn’t immediately obvious that C should be able to claim for purely psychiatric injury:
- Veracity- of C’s injury, C could lie- it’s not as obvious as a broken leg, how do you examine the mind?
- Numbers- the number of potential C’s that can suffer as a result of an incident e.g. if a lot of people witness an accident can they all equally claim, what if the event was televised- there’s no easy limitation.
Victorian Railway Commissioners v Coultas 1888
- Facts: D railway gatekeeper at a level crossing negligently opens a gate for a couple’s car to pass through and a train comes, barely missing the car, no physical injury suffered. However wife fainted and suffered severe psychiatric illness.
- Privy Council: no we won’t allow her claim; it would open a wide field for imaginary claims. They said they couldn’t find an authority to support finding such injury.
- Solution for veracity: courts said we will only allow claims where the C has suffered a medically recognized psychiatric illness. g. using a doctor as an expert witness.
- Cases which have been allowed: PTSD, miscarriage induced by shock, M.E, pathological gambling disorder.
White v Chief Constable of South Yorkshire Police 1999
- Police officers claiming for PTSD as a result of attending the Hillsborough disaster. It’s not enough to claim for mere grief or normal shock. C must establish they have suffered from a recognised psychiatric illness, not merely grief, distress, anxiety or shock in the ordinary sense of the word.
Victorian Railway Commission v Coultas 1888
- Harsh approach, decision highly criticized at the time. Courts took a less stringent approach in Dulieu
Dulieu v White & Sons 1901
- First successful claim for psychiatric injury. C pregnant behind bar in husband’s pub, D negligently drove horse cart into the bar, C wasn’t physically injured but she feared for her own safety and suffered shock which led to her giving birth prematurely and the child suffered developmental problems.
- Justice Kennedy: was willing to allow claim because there was a reasonable fear of personal injury to oneself. C believed herself to be in danger, so she could claim. This was known as the Kennedy limitation.
Hambrook v Stokes Bros 1925
- Facts: D’s employee negligently left lorry at the top of a hill running without pulling the brakes. Lorry came down the hill. C walking with her kids and she had just turned the corner, kids were at the spot where the lorry was coming down towards. She didn’t personally suffer injury from D’s negligence but she suffered psychiatric injury and eventually died.
- Atkin LJ: the law would be discreditable of it allowed a mother to claim in Dulieu but not in this case. = fear for close relatives e.g. children- will allow you to claim for psychiatric injury
- This case so Dulieu as too restrictive and subsequently created a duty. However didn’t clearly set out when this situation would arise/ a duty would be seen by the courts- this left a lot of questions unanswered
Bourhill v Young 1943
- Facts: fishwife got off tram and heard a collision about 50 feet away. D cyclist was cycling negligently and crashed into a car, after D’s body was removed fishwife went and investigated and saw the bloody aftermath, suffered psychiatric injury and gave birth to a stillborn child.
- Court: she was being nosy, invoked the situation which caused injury. The harm following from the D crash wasn’t reasonably foreseeable. You need to be in the area of potential danger. Note the courts didn’t say you need to be in the area of impact.
- This case wider than Hambrook, expensive view towards psychiatric injury and its ambiguous.
- Started to limit the scope. With the increase of knowledge in psychiatric injury, one would’ve thought the courts would also see psychiatric injury as a foreseeable outcome due to a wider range of situations and the bounds of liability would be extended accordingly.
- Courts have sought to limit scope by using concept of foreseeability in an artificially restricted way by making existence of duty of care depend upon the satisfaction of various requirements of proximity also.
McLoughlin v O’Brian 1983
- Facts: C at home, her husband and 3 kids involved in a car crash, one of the kids died. News of the crash reached the C one hour later, she rushes to the hospital; she sees scenes which were distressing in the extreme. Her family cut and bruised, dirty and oily and some of them unconscious in a very bad state, she suffers PTSD as a result. Wanted to claim against negligent D driver. C succeeds, majority say seeing her family in that state was proximate enough in terms of time and space.
- Wilberforce: foreseeability isn’t enough; we need some limitations because by its very nature, shock is capable of affecting wide range of people.
- Proximity of relationship- this needs to exist between C who has suffered psychiatric injury and the V of D’s negligence. This precludes ordinary bystanders, the closer the tie the more likely C will be able to claim. (on this point affirms Bourhill v Young, fishwife had no close ties to the V)
- Proximity to the accident: C must be close to the accident in terms of time AND space. This is the aftermath doctrine, not necessary to see or hear the event immediately, aftermath of incident can count. This isn’t satisfied when communicated by 3rd party as this isn’t proximate enough.
- Wilberforce left open question of whether someone watching on TV would be able to claim. It’s also the first of the four cases in which HoL develop modern approach to nervous shock claims. Raises more questions than answers, are the court taking a restrictive or expansive approach to liability for psychiatric illness?
Distinction between primary and secondary victims
- Law commission describes the distinction as more of a hindrance than a help, and noted there was confusing inconsistency as to how the line should be drawn.
Victims categorized into:
- Primary victims are those involved ‘mediately or immediately’ in the accident (definition developed in White)
- Secondary victim are the rest i.e. bystanders and witnesses etc.
Alcock v Chief Constable of South Yorkshire 1992
- Facts: too many people let into football match negligently, barriers collapsed, 96 died, 766 injured. One person’s negligence caused injury and death. Football match televised. This was a test case to see if people watching at the time could claim for psychiatric injury. In this case 10 people who were relatives/ friends of C’s brought case against police, it was presumed they all had PTSD. HoL had to enunciate what the principles were.
- Lord Oliver drew distinction between primary and secondary victims- Primary= being involved mediately/immediately as a participant in the accident incl rescuers. Secondary v’s= passive and unwilling witnesses. There is a strict test for secondary victims they need to fulfil proximity requirements, whereas primary v’s can. Relationship not tied to any specific type of relationship, but all ten cases didn’t fulfil proximity of relationship. C must have close ties of love and affection to the Vs.
- Clear from case psychiatric injury to be dealt with restrictively. HoL laid down a number of specific proximity requirements that need to be satisfied in cases where psychiatric illness results from witnessing a traumatic event.
- Proximity of relationship
- C must establish there was a close tie of love and affection. HoL approach narrow e.g. first instance judge thought all relationships within the nuclear family including sibling involved such ties but HoL said the quality of such relationships differs widely so we won’t automatically presume that to be true. This requirement also seems to close the door on claims by mere bystanders.
- Lord Ackner and Keith recognized that there might be situations where a bystander might be able to claim because the scene witnessed was particularly horrific. Begs the question, if Hillsborough wasn’t horrific, what is horrific enough?
- Proximity in time and space
- C need not be at the scene of the accident at the time it occurs. Mcloughlin established that the aftermath of the accident extended not only temporally forward from the accident but also spatially away from the accident scene to the hospital to which Vs were taken. However should liability for psychiatric harm depend on a race between the C and the ambulance?
- Galli-Atkinson v Seghal 2003– C’s daughter killed by a car which dangerously mounted the curb. C saw police cordon then taken to mortuary to identify badly disfigured body. Court ruled this constituted an uninterrupted sequence of events, but how was this different from the families who travelled to Hillsborough to identify bodies but weren’t entitled to claim on the aftermath doctrine?
- Proximity of perception
Described by some as the requirements of nearness, dearness and hearness
- C must suffer psychiatric injury as a result of directly seeing or hearing the accident or its immediate aftermath. There can be no liability where C is merely told by 3rd How much perception of the accident must C have?- difficult and unresolved question left by the courts. Hambrook suggests that a reasonable fear for the life or safety of a loved one is sufficient in such a case. Shock need only be a cause not necessarily the sole cause of the C’s psychiatric condition- Vernon v Bosley. Though in awarding damages courts should adjust accordingly to reflect contribution of each party to the resulting injury.
- Guy v Atkinson– counted as immediate aftermath as far as mother was concerned it was one traumatic event- the mother didn’t accept that the daughter was dead, she was in denial as the court said. Clever way of the courts loosening the Alcock requirement there has to be a shock.
- Walters v North Glamorgan– what can count as shock?
- Facts: C mother of a baby who had to go to hospital due to some health problems, mom stays with baby overnight and wakes up to find baby having a fit. Medical staff decided to drive baby to London which is 7 hours away, in an ambulance with parents following in their own car. Baby seen by specialist staff, baby suffered severe brain injury and wasn’t going to have quality of life if it survived so parents decided to switch off machine. Claim was against North Glamorgan for failing to realize baby needed treatment immediately. Problem for secondary v, you need a shock, events here happened over 36 hour period.
- CoA: for something to be a shock it doesn’t need to occur at one specific moment in time, doesn’t have to be one dramatic event. Here mom experienced events one after the other- a sequence of factors can count as shock.
- Ask yourself: how did the C experience the events? Alters the law/legal doctrine dramatically.
- Sian v Hampstead Health: son died as a result of negligent treatment by the hospital- C fails because it’s said he didn’t suffer from shock (an earlier shock)- strict implementation of Alcock criteria. Recent CoA show how law has changed.
Primary victims: developments
Generally: Page v Smith 1996
- Criticized and overruled as not good law. Criticism by commentators- Greaves, asbestos case distinguished Page. Counsel didn’t challenge decision in Page and didn’t overrule it.
- Facts: D driving negligently and turned into C’s car which caused moderate car crash in which C wasn’t physically injured. However C had a pre-disposition of ME and developed chronic fatigue syndrome.
- Duty: don’t cause physical injury to primary victims.
- *Question to be asked: could the D have foreseen that the C would suffer physical personal harm, not psychiatric injury. Yes= liable even if C only ends up suffering from psychiatric illness. Also doesn’t matter if C has special sensitivities- thin skull rule= take victims as you find them.
- Is the C in the zone of foreseeable physical danger?
- Primary v only has to prove any foreseeable injury
- Held: for primary Vs all they need to demonstrate is that some harm physical or psychiatric was foreseeable.
- For secondary Vs,
- Firstly psychiatric injury has to be foreseeable; the D can assume that the person is of reasonable phlegm.
- Secondly, the proximity of relationship- burden of proof on C, but it can be presumed e.g. parent/child, engaged couples etc.
- Thirdly, directness of perception- you have to see it directly, closeness in time and space.
- For secondary Vs,
Lord Goff dissenting: the decision in page v smith ‘constituted a remarkable departure from… generally accepted principles’. In particular, ‘it dethroned foreseeability of psychiatric injury from its central position as the unifying feature of this branch of law’ by making a distinction between primary and secondary victims .The case was the first where the C wasn’t a witness or third party but an actually victim of the accident
Three criticisms of Page v Smith:
- No previous support for any such approach
- Approach inconsistent
- Majority in the case misunderstood the thin skull rule; the maxim only applies where liability has been established. The criticism is therefore that Lord Lloyd appears to have taken an exceptional rule relating to compensation and treated it as being of general application, thereby creating a wider principle of liability.
- Relates to the test of remoteness of damage – is the kind of harm reasonably foreseeable – if the extent of the harm isn’t foreseeable but the harm was-You are liable for the extent as long as the harm was foreseeable
- Psychiatric illness and physical damage are two type of different harm- in Page v Smith one type of harm was foreseeable but the harm was different
- Defining type of harms so broadly.
Corr v IBC 2008: confirmed thin skull rules.
Rescuers: White v Chief Constable of Yorkshire 1999
- Relates to rescuers. C’s were police rescuers at the scene helping primary Vs, they suffer psychiatric injury. Rescuers are generally secondary Vs, unless a rescuer has a personal objective exposure to danger or reasonably believes they were, they would be classed as primary V i.e. if they were in the zone of danger, if not=no liability.
- If we allow all rescuers to claim then curious bystanders who come and help in some way would be able to claim as rescuers but bereaved relatives wouldn’t be able to claim= doesn’t make sense. = generally rescuers are 2nd
Unwitting agents of misfortune: Dooley v Cammell Laird 1951; Hunter v British Coal 1998
- People who think they’re responsible for the accident but they’re not. Regarded as part of the people who are regarded as primary Vs. As a result of White v Chief, unwitting agents of misfortune are no longer to be regarded as primary Vs unless they’re in the zone one of danger.
- W v Essex: Lord Slynn said that the category of primary Vs not closed; in this case the parents who had suffered the illness had found out that the child they had fostered sexually abused their own children.
- So if a novel case comes before the court they will look at it. Slynn- the categorisation of those claiming to be included as primary or secondary Vs isn’t as I read the cases finally closed. It’s a concept still to be developed in different factual situations
- Unwitting agents are in the middle of current state of law, are they primary Vs or not, in light of W v Essex, answer not so clear.
- g. Re Organ Retention Group 2005– parents of deceased children whose organs were retained after post-mortem examination without their knowledge or consent, treated as primary Vs.
- Relevant question of duty of care wasn’t owed to the children a they had died, duty of care was owed to the parents, they were primary Vs of Ds negligence and could therefore claim. Courts are strongly driven by policy they don’t admit it but they should.
D as primary victim? Greatorex v Greatorex 2000
- What happens if D self-harms? Drunk driver trapped in car, D’s father was the C, he was a fireman who attended the scene and suffered long-term PTSD and subsequently sued his son. D primary v of his own negligence in a way = C cant succeed. Firstly it would be significant limitation of Ds freedom of action- autonomy. Secondly allowing C to claim would cause family strife. Is this case of general application or is it only justified in this case because it was family member v family member?
- A D who imperils or injures themselves owes no duty of care to those suffering psychiatric injury as a result.
Must the harm be caused by fear?
Secondary victims: criteria
The Alcock criteria:
- Proximity of relationship (dearness)
- Proximity in time and space (nearness)
Taylor v A Novo 2013: accident at work, woman involved from accident recovering pretty well then she died suddenly from deep vein thrombosis. Daughter witnessed mom’s death and suffers PTSD, claims against mom’s employers. CoA says she can’t claim because the relevant incident was the accident itself, she wasn’t near enough in terms of time and space.
- Perception by own sight or hearing, not third party reports (hear-ness)
- Hear from 3rd party= don’t satisfy proximity. Watching live broadcasts could claim if there were specific injuries, courts left it open, cited Nolan LJ example- there would be exceptional situation where this was allowed e.g. a hot air balloon carrying children, being filmed live and due to ds negligence it bursts into flames on live tv and parents suffer psychiatric injury- claim should be allowed.
- In cases about stress at work, why can’t the D raise the point about the C deciding to continue in the role/and or the C was partly careless in partaking in consistently
- To break a chain of causation: there has to be a deliberate voluntary act/choice- I doubt someone suffering psychiatric injury won’t be able to exercise that properly- Corr v IBC case- man gets injured at work and develops depression as a result and commits suicide- HoL: you need to have a deliberate voluntary act to break the chain of causation, someone acting under the influence of the depression brought about by the D’s negligence can’t be said to be acting voluntarily
- Contributory negligence: comes about where the C has been careless partly- it’s a partial defence for D. or C by continuing to exacerbate situation by not trying to reduce further damage.
- Difficult to show that a person’s decision to continue working was contributory negligent. What might be more problematic for a C is if the C has been ill, had time of and then come back to the job- Walker v Northumberland or Barber
Hatton v Sutherland 2002
- Employer not required to prevent psychiatric injury, duty is to stop foreseeable psychiatric injury from being caused. Ask whether for the particular employee it was foreseeable they would suffer psychiatric injury from the employment. (Treat each employee as individual don’t judge on standard of other employees). Test isn’t reasonable employee but that particular employee , would they suffer psychiatric injury, taking that into account the type of work they’re doing. Employer is allowed to assume employee is a reasonable employee unless they have a special job or they’re a particular employee. Employers allowed to take employee at face value.
- Hale LJ: All employers have a duty to take reasonable care for the safety of their employees: to see that reasonable car is taken to provide them with a safe place to work
- However where psychiatric harm is suffered, the law distinguishes between primary and secondary victims. The employer’s duty is owed to each individual employee
- Single test she suggests: whether a harmful reaction to the pressures of the workplace were a reasonably foreseeable result in the individual employee concerned. So there must be an injury to health which is attributable to stress at work.
- The indications must be plain enough that any reasonable employer would realise they have to do something about it. Once an employer is aware or made aware then they have a duty to take particular steps
Barber v Somerset County Council 2004
- Facts: C a teacher hired by local authority, due to restructuring of school, C told if he wanted to retain his salary he would have to work and take on more duties. As a result worked 61-70 hrs per week including evenings and weekends. He declared he was overstressed and depressed. Went to GP and got three weeks off for being depressed, when he came back went to see member of senior management team but was given no assistance or sympathy. He eventually developed psychiatric injury and couldn’t go back to work.
- HoL: from the first moment C contacted senior management to tell them he couldn’t work a duty of care arose. From then on they were on notice that C needed help and wasn’t doing well, just because school was in financial difficulties doesn’t mean they could leave C as he was. Something more should’ve been done= D school liable.
Daw v Intel 2007
- Facts: C worked for Intel for 30 years. Reorganization happened= C in new role with increased workload. She was stressed out, made 14 verbal and written representations to the manager that it just wasn’t working out. Problem was there were insufficient resources to get work done so she had to work 10x as hard. She suffers psychiatric injury, sues Intel. Defence D brought- we have counselling service and medical assistance open for all employees.
- CoA: says no, employers can’t rely on provision of counselling service to get away with it, doesn’t automatically discharge duty of care. C’s problem couldn’t just be solved with counselling Ds should’ve also reduced her work load and this wasn’t done.
Hartman v South Essex Mental and Community Care NHS 2005
- Facts: C prison healthcare officer, job involved dealing with traumatic prisoners, suicide attempts etc. one incident, inmate committed suicide, as a result C officer suffers psychiatric injury.
- HoL: D liable, nothing to do with C showing signs/developing signs of psychiatric injury, the D knows and foresees that by very nature of the work undertaken C could suffer injury, no system to deal with this provided.
- Two factors relevant: if employee shows signs of not being able to handle stress, and if the job is likely to cause injury then employers should be alert.
- Hartman case includes several cases- Hartman itself talks broadly the interesting case is of police officer Melville:
- Appeal where prison officer finds prisoner who has committed suicide and has to cut them down. Suffers psychiatric injury. Can’t claim as secondary V, that would be problematic to fulfil criteria of nearness. Instead this well advised C emphasises shortcomings of psychiatric support that had been offered to him after the event and the training given to him before the events.
- Held: Home Office owed him duty of care on this basis, not that they ought to have stopped him from seeing the sight BUT that they should’ve offered him better psychiatric counselling help afterwards.
- *In hindsight: in White, C’s might’ve been better off claiming for the lack of psychological support after the event. This circumvents the Alcock criteria.
Butchart v Home Office 2006
- Facts: C prisoner who was psychiatrically vulnerable is put in a cell with another vulnerable inmate prone to suicide and who succeeds in doing so. C prisoner says the HO should’ve known he was vulnerable and by putting him with vulnerable inmate HO should be liable.
- CoA: agrees, due to relationship of the C and prison authorities, they should’ve known or ought to have known C was vulnerable and had duty to reduce injury to C and by placing him with suicidal inmate= breach of duty.
Other special relationships
Leach v Chief Constable of Gloucestershire 1999
- Facts: C acted as appropriate adult during a questioning of notorious serial killer. She was an unpaid volunteer, she wasn’t told about the crimes killer had committed beforehand nor was she provided with special training for dealing with mentally unhinged serial killers. She attended 40 police interviews and accompanied killer to scenes of the crimes and at times was left alone with the killer. She suffers PTSD as a result and then a stroke.
- CoA: D clearly liable, D had assumed responsibility for C’s wellbeing and therefore she could make a claim.
Law Commission Report 249, Liablity for Psychiatric Injury 1998
- Food for thought suggestions
- READ THIS PAPER
- It’s an area of common law which can and should develop, and think it shouldn’t be taken over by statutory provisions, they think common law has dealt with and continues to deal with it well
- Proposed test of proximity and time and space, not a very good test because it’s uncertain as it’s a question of degree. Instead we should look at relationship and how close it is. And they should introduce a list of relationships which would qualify
- C’s shouldn’t be limited to the case of sudden shock- there’s no reason why C can’t claim for psychiatric injury that develops after the incident
- Are these really tests, mere guidelines, do they help or are they just tools for courts to impose their policy visions. Is this area of law certain enough?
- Psychiatric injury presents the courts with specific problem- we don’t want too many people to claim we want the C’s to be legitimate and deserving C’s. Does the law draw the line at an appropriate point should it do more or less?
- Imposition of all three Alcock requirements are too restrictive
Law in this area is unsatisfactory and in a dreadful mess, a long list of anomalies
- HoL taking pusillanimous approach to the problems they themselves have created
- Only parliament could take the radical uncontroversial approach of reforming the corner the courts have backed themselves into
- Mullany and Handford– psychiatric injury arguably deserves more protection because an injured individual is far more difficult to nurse back than an injured body, and is arguably more debilitating and disruptive to a person’s life.