Psychological/Psychiatric Harm

Psychological/Psychiatric Harm

1. "Psychiatric illness"

2. "Psychiatric injury"

   • Pure psychiatric injury = controversial
     • This is psychiatric injury not resulting from physical injury, and claimable in two situations:
       • Where someone suffers nervous shock due to being involved in an accident, or witness to an accident
       • Where someone suffers workplace stress
       • Heavily circumscribable to avoid opening the floodgates
   • Two categories of victims:
     • PRIMARY VICTIMS
       • Someone directly involved in the accident or who is within "the zone of physical danger"
       • If the person claiming damages for nervous shock is also a PRIMARY VICTIM of negligence, he can recover damages, only if he can show that the defendant could foresee the personal injury, physical or psychiatric
         • Doesn't have to prove the PSYCHIATRIC INJURY is foreseeable
           • Only needs to show SOME injury was foreseeable
             • PAGE V SMITH [1995]
               • Claimant was injured in a minor car accident caused by the defendant's negligence. He was not physically injured, but the shock caused his pre-existing CFS to significantly worsen.
               • HoL held that the defendant was LIABLE.
     • SECONDARY VICTIMS
       • Someone not directly involved in the accident (and in no physical danger) but suffers psychiatric injury as a result of what he sees/hears happening
       • Must show that the psychiatric injury itself was reasonably foreseeable to a person of "reasonable fortitude"
       • ALCOCK v CHIEF CONSTABLE OF SOUTH YORKSHIRE [1992]
         • Lord Oliver:
           • As far as "passive witnesses" of an event are concerned, five factors should be taken into account:
             • SUDDEN SHOCK
               • There must be a sudden shock as a result of a "traumatic experience" or "event" rather than a slow realisation
             • PSYCHIATRIC HARM
               • FORESEEABILITY
               • Must be reasonably foreseeable in the claimant in the circumstances. A more demanding test.
             • PROXIMITY OF RELATIONSHIP
               • PROXIMITY
               • Between claimant and primary victim.
                 • The closer the love and affection between the two, the more likely the shock was foreseeable
                   • Rebuttable presumption between parents, spouses and children
             • PHYSICAL PROXIMITY
               • Between the claimant and the accident, or it's aftermath.
                 • The claimant must be at the scene of the accident or arrive soon afterwards
             • PROXIMITY OF PERCEPTION
               • How the claimant became aware of the events.
                 • Claimant must see or hear the event, or it's immediate aftermath with HIS OWN SENSES
                   • Live broadcast not ruled out
             • These 5 factors apply in McFarlane v Caledonia Ltd [1995]
               • Claimant witnessed an explosion on the "Piper Alpha" oil rig, which he worked on, from a support ship 100 metres away.
                 • Court of Appeal dismissed claim for psychiatric damage as he was not a "rescuer" merely a bystander who was therefore unable to establish a sufficiently close enough relationship with the victims to enable his claim to succeed.

3. "Nervous shock"

4. Long been claimable in negligence when it results from direct physical injury

   • Consequential psychiatric harm

5. Historical Development

   • THE FIRST SUCCESSFUL CLAIM
     • Dulieu v White [1901]
       • A barmaid who was serving customers in a pub saw a horse and cart out of control crashing into the pub. She was pregnant at the time and the shock caused a still birth.
         • Held to be sufficient that she was reasonably in fear of her own safety (primary victim)
   • Bourhill v Young [1942]
     • Claimant was 8 months pregnant and suffered nervous shock, giving birth to a stillborn after a fatal motorcycle accident occurred 50 yards away from her. The shock was caused by hearing the crash and seeing blood on the road afterwards.
       • Motorcyclist's personal representative was not liable as she was a bystander, with no duty owned (secondary victim)
   • Chadwick v British Railways Board [1967]
     • Lewisham train crash 04/12/1957 in which 90 people died. Mr Chadwick, local window-cleaner and "small and agile man" spent 12 hours crawling amongst bodies and parts inside the claustrophobia-inducing wreckage, administering pain killing injections and comforting the injured and dying.
       • He suffered severe psychiatric injuries (primary victim). Whilst not physically harmed, he was in the danger zone
         • High Court held his widow, who pursued the case after he died, should be awarded just over £1,500, as he suffered foreseeable harm as a result of the defendant's negligence.
   • McLoughlin v O'Brian [1982]
     • Claimant was able to recover damages for nervous shock after one of her children was killed, and her husband and two others were injured in a road accident. She didn't witness the crash, only heard about it and visited her family in hospital afterwards.
       • She suffered a severe and lasting depressive illness
       • HoL held that she should be compensated because her nervous shock was a reasonable foreseeable consequence of the defendant's negligence.
         • The first case in which damages had been awarded to someone who had not physically been very close to the accident
   • Alcock V Chief constable of South Yorkshire [1992]
     • Current law on secondary victims is based
     • Hillsborough football stadium disaster, in which 96 people were crushed to death as a result of poor crowd-control measures
       • HoL refused to extend the principles from McLoughlin to relatives other than spouses, parents and children or to those who saw the accident on the television
         • HoL put in place some explicitly policy-driven requirements for a duty to arise not to carelessly cause pure psychiatric harm to accident witnesses

6. Current Law

   • Any case involving nervous shock, the claimant must establish the following:
     • The defendant owed a duty of care
     • The duty of care was breached
       • The claimant has clinically recognised psychiatric illness, worthy of compensation, and caused by defendant's negligence.

7. Claimable harm

   • Damages are not claimable for normal sorrow or grief
     • Hinz v Berry [1970]
       • The pregnant claimant and one of her children witnessed a car accident involving her husband and other children. She saw a number of her family members lying bleeding in the road and suffered from severe depression.
         • She was awarded £4,000 for nervous shock
           • Court of Appeal held that damages were only available for the clinical psychiatric damage suffered from actually witnessing the event.
             • Lord Denning:
               • Somehow or other the court has to draw a line between sorrow and grief for which damages are not recoverable; and nervous shock and psychiatric illness for which damage are recoverable.

8. Other Claimable Pure Psychiatric Harm

   • Workplace Stress
     • Negligently caused workplace stress does not need to be triggered by sudden shock. Psychiatric injury was the only kind of harm suffered by the primary victim in:
       • Walker v Northumberland County Council [1995]
         • Claimant, employed by the defendant council, suffered a nervous breakdown because of pressure of work. He returned to work after he was promised assistance, but only limited help was given and he subsequently suffered a further breakdown and had to give up work permanently.
           • Court found that although the first breakdown was not foreseeable, after it's occurrence it was clear that the claimant was at risk of mental illness and the defendant owed him a duty to find support. It had not done so, so was therefore liable.
   • The Rule in Wilkinson v Downton [1897]
     • Deliberately caused shock is always actionable.
       • The claimant successfully claimed damages for nervous shock from the defendant, who told her as a joke that her husband had been injured in an accident.