Law of Tort - Mental Injury

1. Hinz v Berry

   Annotations:

   • Mrs Hinz witnesses her husband being killed in a crash, becomes morbidly depressed. Her claim succeeds because she establishes actual psychiatric injury rather than grief or sorrow

1. Hicks v Chief Constable of South Yorkshire

   Annotations:

   • Sisters crushed in the Hilsborough incident. Parents brought a claim against the defendants seeking damages in respect of the fear and terror that the sisters would have suffered prior to death. Claim failed, fear is not sufficient.  “It is perfectly clear law that fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded." Lord Bridge
2. Reilly & Anor v Merseyside Regional Health Authority

   Annotations:

   • Old couple get claustrophobia in lift.  Get damages, health authority appeals. Appeal successful. There must be a recognised psychiatric condition to give rise to damages. Physical symptoms of fear and panic such as sweating and breathing difficulties was not sufficient .

1. Primary victims are those who are involved 'mediately or immediately as a participant' Per Lord Oliver
   1. Later restricted to those in the zone of physical danger
      1. Page v Smith
         1. No need for primary victims to prove that psychiatric injury was foreseeable, just has to be proof of foreseeable physical harm
      2. White v Chief Constable of South Yorkshire

         Annotations:

         • This case involved claims for psychiatric injury from police officers who were on duty that day . Their claims differ from those in Alcock, in that they based their claims on the grounds that as employees, the defendant owed them a duty of care not to cause them psychiatric injury as a result of negligence, alternatively they claim as rescuers, which they argued promoted them to primary victims as oppose to secondary victims.
      3. An objective approach is taken as to whether the claimant is in the zone of physical danger
         1. McFarlane v EE Caledonia
   2. A primary victim does not owe a duty of care to a secondary victim in relation to self-inflicted harm
      1. Greatorex v Greatorex

         Annotations:

         • the claimant Christopher Greatorex, John’s father, a leading fire officer, arrived on the scene. Christopher attended to his son and then suffered long term severe post-traumatic stress disorder as a result of the incident. The claimant brought an action against his son for the psychiatric injury caused by his negligence. Held: The claim failed on policy grounds. Whilst the claimant was a secondary victim and met the criteria set out by Lord Oliver in Alcock v Chief Constable of South Yorkshire, 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.

1. Must demonstrate:
   1. A close tie of love and affection
      1. Witness the event with their own unaided senses
         1. Proximity to the event itself or its immediate aftermath
            1. Psychiatric injury must be a result of a shocking event
               1. Lord Ackner in Alcock v Chief Constable of South Yorkshire stated: "'Shock", in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system."
                  1. This excludes those who suffer psychiatric injury as a result of the long term process of providing care for a loved one who has suffered severe injuries due to the defendant's negligence
                     1. Sion v Hampstead Health Authority

                        Annotations:

                        • Sion brought an action against the hospital alleging their negligent treatment of his son caused him to suffer psychiatric injury. The hospital applied to have the claim struck out as disclosing no cause of action. Brooke J found for the hospital and the claimant appealed. Held: The appeal was dismissed. Staughton LJ:“In my opinion there is no trace in that report of "shock" as defined by Lord Ackner, no sudden appreciation by sight or sound of a horrifying event. On the contrary, the report describes a process continuing for some time, from first arrival at the hospital to the appreciation of medical negligence after the inquest. In particular, the son's death when it occurred was not surprising but expected.” 
                     2. W v Essex County Council

                        Annotations:

                        • Issue of family who when adopting specified they did not want a child who may have been a sexual abuser. Given one anyway. He then sexually abused their other children, The trial judge struck out the parents claim but refused to strike out the claim in respect of the children. The Court of Appeal held no duty was owed since the parents were secondary victims and did not satisfy the criteria set out in Alcock v Chief Constable. The claimants appealed to the House of Lords. Held:The appeal was allowed. The House of Lords refused to strike out the claims. Lord Slynn stated the law regarding psychiatric injury was still developing and the categories of primary victims are not closed. It was arguable that the claimants may be primary victims based on a feeling of responsibility in unwittingly bringing the abuser in to the house. Furthermore the concept of the ’immediate aftermath of the incident’ has to be assessed on the particular factual situation. Therefore the issues should go to trial.
            2. In Alcock, the relatives that had visited the make shift mortuary to identify loved ones, were held not to come within the immediate aftermath of the event
            3. Taylorson v Shieldness Produce Ltd

               Annotations:

               • Issue of boys who were killed by food delivery fan at school They remained at his bedside for the duration of his life. They brought an action against the defendant for the psychiatric injury they suffered as a consequence of witnessing the events. Appeal dismissed. The claimants although in attendance at the hospital when he arrived, saw little of their son until several hours later when he had been stabilised. The psychiatric injury suffered, according to medical evidence, grew out of a whole sequence of events extending over an appreciable period of time and could not be attributed to one shocking event.
            4. Lord Wilberforce in McLoughlin v O'Brian establishes aftermath doctrine
               1. What constitutes immediate aftermath is decided on the particular facts of the case:
         2. Seeing the events on television or hearing them on the radiowill not suffice
      2. 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

1. Chadwick v British Railways Board

   Annotations:

   • Mr Chadwick worked many hours through the night crawling beneath the wreckage bringing aid and comfort to the trapped victims. As a result of what he had witnesses he suffered acute anxiety neurosis and received treatment as an inpatient for 6 months. Held:His estate was entitled to recover. The defendant owed Mr Chadwick  a duty of care since it was reasonably foreseeable that somebody might try to rescue the passengers and suffer injury in the process. Waller J quoted Cardozo J in Wagner v  International  Railway Company 232 NY Rep 176, 180 (1921): “Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effect within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer.”
2. However this position was changed in White v Chief Constable of South Yorkshire. Rescuers are now to be given no favourable treatment. Neither are employees

Annotations:

• The claimant was a crane operator working for Camell Laird. He was loading material from the quay onto a ship when the rope snapped which was carrying the load. The load dropped in to the hold of the ship where the claimant knew workers were situated. The claimant could not see into the hold and where the workers were standing. In fact nobody was injured. However, the claimant suffered shock at the thought that workers could have been injured due to his actions. The shock aggravated his pre-existing neurasthenia and he was unable to return to work as a crane driver. Held: He was entitled to recover damages for the psychiatric injury. The defendant had provided too weak a rope for the task and the claimant’s psychiatric injury was a foreseeable consequence of their failure.