Psychiatric Injury

Psychiatric Injury

1. 1. Primary Victims

   • Someone who is exposed to the risk of physical injury and therefore fears for their own safety, as a result of being directly affected by the negligent act. They suffer no physical injury but suffer a psychiatric injury as a result.
     • Dulieu v White
       • The claimant was pregnant and behind the bar in her husband’s public house. A horse and cart crashed into the pub. The claimant was not physically injured but feared for her safety and suffered shock. She gave birth prematurely nine days later and the child suffered developmental problems.
     • 1. Primary victim doesn't need to prove that the psychiatric injury was foreseeable, just that some form of personal injury was foreseeable.
       • Page v Smith
         • The claimant suffered from ME but had made a recovery over time. He was involved in a car collision in which his ME was triggered, leaving it permanent.
           • Provided some kind of personal injury was foreseeable it did not matter whether the injury was physical or psychiatric. The fact that an ordinary person would not have suffered the injury incurred by the claimant was irrelevant as the defendant must take his victim as he finds him, Applying the thin skull rule
             • HOWEVER
               • 3. Victim must be of normal fortitude
                 • Brice v Brown
                   • Claimant had severe hysteric personality disorders from birth and was therefore not of normal fortitude. A claim for nervous shock is not actionable unless the plaintiff incurs psychiatric damage which is caused by the tortfeasor as part of a breach of a duty owed by him to the plaintiff. Only then must the defendant bound to take the victim as he finds him.
     • 2. The claimant must be within the 'zone of physical danger'. This is tested objectively
       • McFarlane v Wilkinson
         • A fire broke out in an oil rig resulting in the death of 164 workers. The claimant was on a vessel and on approach of some 50 meters away, claimed he had feared for his safety and had witnessed men in distress jumping into the sea.
           • Held that the claimant was not within sufficient proximity of the zone of danger to have constituted a Primary Victim
       • Claimants may not be 'Primary Victims' in the normal sense talked about but if the Psychiatric Injury was foreseeable due to their relationship of proximity and no public policy implications, they may be regarded as Primary Victims
         • CJD Group v Medical Research Council
           • They were to live with fear of developing a disease from an injection. They were not Primary Victims as the fear was not initial from the injection but rather developed on suspicion of disease causing brain damage
       • 2. Suffiecently proximate to the events or it's immediate aftermath

2. The law adopts a restrictive approach in awarding damages for negligently inflicted psychiatric injury. In addition to the Caparo test for imposing a duty of care, the courts have laid down several obstacles which must be satisfied by claimants in order to establish liability for negligently inflicted psychiatric injury.

   • Since White v Chief Constable of South Yorkshire 3 categories were established from the events of the Hillsborough disaster regarding victims of personal injury.
     • There must be an actual psychiatric injury that is recognised by medical practice
     • 1. Those Physically injured and suffered a psychiatric injury
     • 2. Primary Victims to PI
     • 3. Secondary Victims to PI
   • For a claim to be successful in Psychiatric Injury, you must prove that it was a result of the defendants negligence:
     • 1. There was a Duty of Care
       • 2. A breach of that duty, i.e. the defendant's actions or omissions in the circumstances fell below what would be expected from a reasonable person in the circumstances.
         • 3. That breach caused the victim to have a nervous shock (PI)
           • 4. The Psychiatric Injury wasn't too remote a consequence of the breach

3. 2. Secondary Victims

   • Secondary Victims are those persons who are not physically injured and not at risk of harm, however they witness the events and feared harm to others
     • EXAMPLES
       • Witnessed death of relatives or work colleague
       • Unwillingly caused injury due to act of 3rd party
       • Professionals, Police, Ambulance, Rescuers
     • Secondary Victims WERE previously tested against he 'Aftermath Test' established in Mcloughlin v O'Brain (OLD LAW)
       • McLoughlin v O'Brian
         • The claimant suffered psychiatric illness after witnessing the aftermath of a car accident her children and husband were a part of. Upon hearing the news she rushed to the hospital in time to still see them in pain, covered in blood, and waiting for medical attention.
           • 3. Rescuers
             • The old law regarding rescuers is found in:
               • Chadwick v British Railways Board
                 • Waller J said: ‘The community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress to be regarded as extraordinary. There is an infinite variety of creatures, all with varying susceptibilities.’
             • CURRENT LAW ON RESCUERS
               • Rescuers are now encouraged by the eyes of the law to help when a situation occurs which help is needed
                 • White v Chief Constable of South Yorkshire Police
                   • 3 policeman st the scene of the Hills borough Disaster were required to move a number of dead bodies and attempt to resuscitate the unconscious.
                   • The claimants argued 3 points:
                     • 1. That Page v Smith does not give a difference between Physical & Psychiatric Injury. That they are both personal damage and should not be treated differently
                       • This assumption was rebutted as it was held there was a difference as a matter of public policy, the courts feared a floodgate of litigation
                     • 2. That their employee had a duty to protect them
                       • Held that there was no special duty that must be added other than those fair, just and reasonable to impose by the ordinary laws of tort.
                         • Walker v Northumberland County Council
                           • The stress of workload made the victim have a mental breakdown. Was promised that the workload would reduce, however after his return after 3 months the workers made no adjustments to reduce the workload after knowledge of his condition, held to be a primary victim
                     • 3. That they were rescuers and deserved to be applied differently
                       • This point fails on policy issues as seen in:
                         • Greatorex v Greatorex
                           • Mr. Greatorex had been drinking with a friend and allowed his friend to drive his car. They ended up crashing where Greatorex suffered serious head injuries, unconscious and trapped in the car.
                             • His father of the fire service had to remove him from the car, and suffered a long term severe post traumatic stress disorder . He brought a claim against his son
                               • It was held that: The claim failed on policy grounds. Whilst the claimant was a secondary victim and met the criteria set out in Alcock , a primary victim does not owe a duty of care to a third party in circumstances where his self-inflicted injuries caused that third party psychiatric injury.
       • Aswel as the PI being foreseeable, a secondary victim must satisfy 3 other requirements:
         • 1. Class of persons
           • 2. Physical proximity to accident
             • 3. Witnessed with own unaided senses
     • After the aftermath of the Hilborough disaster, it lead to a floodgate of PI litigants. The aftermath test was widely criticised and the test established in case of Alcock v Chef Constable of South Yorkshire Police affirmed the test in McLoughlin but took a narrower approach making successful claims for secondary victims much more stringent
       • Alcock v Chief Constable of South Yorkshire Police
         • Sixteen claims were brought against the defendant for nervous shock resulting in psychiatric injury. At trial ten of the claims were successful. Some had seen the events unfold on the television, some had heard about the events in other ways. Some had identified bodies at the makeshift mortuary.
         • The Alcock Test (LORD OLIVER)
           • 2. A close tie of love and affection to the primary victim
             • This will be presumed in parent and child and between spouses but must be proved in other relationships. In particular siblings are not normally considered to have a close tie of love and affection.
               • A number of cases failed in Alcock as their were not sufficiently close to the victim
           • 3. Witnessed the event with their own unaided senses
           • 4. Suffiecently proximate to the events or it's immediate aftermath
             • Taylorson v Shieldness
               • Boy ran over by van, father went to hospital where he was advised not to see his son in ICU unit. Saw anyway, and stayed by bedside days later as he was unrecognisable. The claim for PI failed assay little of son till hours after the event occured
           • 5. The psychiatric injury was reasonably foreseeable from the shocking event
             • Must be SUDDEN
               • Sion v Hampstead H.A
                 • Watched son die over 14 days from medical failure. There was no sudden shock as a result of sons slow death
           • 1. Suffered a recognised medical condition