General Negligence - Duty of Care - Psychiatric Damage

Not a separate tort - type of loss claimed for in negligence

Problem category within duty of care - test must always be applied, using precedents for guidance

Only an issue where there is no personal injury

Can also be referred to as...

Nervous shock

Psychiatric injury

Psychiatric harm

Psychiatric illness

Structure

Loss must be recognised

Identify type of victim

Identify appropriate test to establish duty

Discuss remaining elements of negligence - breach, causation, remoteness, defences

What type of losses can be claimed for?

Dulieu v White (1902)

Hinz v Berry (1970)

Reilly v Merseyside HA (1995)

Primary or secondary?

Alcock v Chief Constable of South Yorkshire (1991) - established that primary victim suffers nervous shock as a result of reasonable fear for their own safety - objective test - involved in traumatic event in question and within foreseeable range of physical injury though they only suffer psychiatric harm

Chadwick v British Railways Board (1967)

Cullin v London Fire Service (1999) - fire fighter witnessed two colleagues trapped inside burning building - rescue attempt failed - defendant argued that case mirrored White but failed

McFarlane v EE Caledonia (1994)

White v Chief Constable of South Yorkshire (1999)

Caparo test - Page v Smith (1996)

  1. Is personal injury foreseeable?
  1. Proximity
  1. Fair, just and reasonable

Johnstone v NEI International (2007) - not overruled

Test for secondary victims

Restrictions laid down in McLoughlin v O'Brian (1983) - adopted in Alcock v Chief Constable of South Yorkshire

  1. Was psychiatric damage foreseeable?
  1. Proximity of relationship between victim and claimant
  1. Proximity in time and space
  1. Loss caused by sudden shock
  1. Fair, just and reasonable to impose duty

Bourhill v Young (1943) - consider what claimant ought to have foreseen as a reasonable person - trauma witnessed such as to be likely to cause psychiatric injury to person of reasonable fortitude - "customary phlegm"

Pre-existing condition

Brice v Brown (1984) - "normal fortitude"

Page v Smith

Alcock v Chief Constable of South Yorkshire - the closer the relationship, the more likely a duty will exist and that court will recognise class of person claiming

McLoughlin v O'Brian - available to claimants who witness immediate aftermath of event

Galli-Atkinson v Seghal (2013) - uninterrupted sequence of events

Alcock v Chief Constable of South Yorkshire - failed because did not see claimant until nine hours later, when identifying bodies

Taylor v A Novo (UK) Ltd (2013) - had death occurred at time of original accident, when claimant wasn't present, would not have been able to recover - quoted Lord Steyn in White "thus far and no further" in relation to extention of this area of law

Berisha v Stone Superstore (2014)

Alcock v Chief Constable of South Yorkshire - "a reaction to the immediate and horrifying impact" and "a sudden assault on the nervous system" rather than gradual realisation

Sion v Hampstead HA (1994)

North Glamorgan NHS Trust v Walters (2002) - drawn-out and "seamless" shock - drawn out but each separate event held to have immediate impact

Taylor v A Novo (UK) Ltd

W v Essex (2000)

Floodgates

Crushing liability

Danger of fraudulent claim

Evidentiary difficulties and complexity of claims

Litigation disincentive to rehabilitation

Need for consistency and certainty

Should be left to parliament

McLoughlin v O'Brian

Alcock v Chief Constable of South Yorkshire

McLoughlin v O'Brian, Lord Bridge

Dulieu v White - Kennedy J relied on in McLoughlin v O'Brian

White v Chief Constable of South Yorkshire, Lord Steyn

White v Chief Constable of South Yorkshire

McLoughlin v O'Brian, Lord Scarman

White v Chief Constable of South Yorkshire, Lord Syen

Should take into account

  1. Year that relevant cases were decided
  1. Overlap between foreseeability, proximity and fair, just and reasonableness
  1. Reason that the control factors have been introduced for secondary victims
  1. Balance between limiting liability and providing remedy for deserving claimant

Dulieu v White - early example of primary victim - defendant negligently crashed coach and horses through wall of her pub - suffered nervous shock and later a miscarriage because reasonably feared would be harmed in the collision

Secondary victim suffers nervous shock due to fear for someone else's safety, normally a close relatively - witnesses traumatic event, but not involved

Page v Smith - recent example of primary victim - in car crash caused by victim's negligence - worsened his ME

McLoughlin v O'Brian - secondary victim - suffered psychiatric injury as result of concern for her family from witnessing a shocking event

Problem categories

Bystanders and rescuers - neither have any special status - still must be classified as primary or secondary victim

Primary

Chadwick v British Railways Board

Primary - helped rescue victims from horrific rail crash - carriage could have fallen on him at any time

Wigg v British Railways Board (1986) - tried to rescue someone trapped under a train - was in danger

Police officers on duty during Hillsborough - claimed as employees and professional rescuers - did not automatically convert them from secondary to primary victims - easy to establish duty of care if primary

Court applied Alcock and Page and Smith and considered Chadwick

Court used obiter remarks of Lord Goff in White - could be argued that the claimant, in his rescue attempt was either exposed to danger or reasonably believes he was - primary victim

Aboard rescue vessel after oil rig disaster - safe distance - not in reasonable fear for own safety - also rejected claim as rescuer as this is reserved for those actively involved, not bystanders

Secondary

McFarlane v EE Caledonia

Cullin

White

Psychatric harm suffered must be medically recognised #

Liability will not arise for fear, distress or mental grief - Reilly v Merseyside HA (1995) - normal human emotion following unpleasant experience

Medical definition

Depression - Lord Denning in Hinz v Berry (1970)

Positive psyhiatric illness - Lord Bridge in McLoughlin v O'Brian and Lord Oliver in Alcock

Physical illness sustained agter event and resulting from nervous shock may also form subject of a claim

Heart attack

Miscarriage - Bourhill v Young

Must establish that psychiatric and physical injury are both "material" - Mazhar Hussain v Chief Constable of West Mercia (2008)

New conditions constantly being recognised

PTSD - Frost v Chief Constable of South Yorkshire (1999)

ME - Page v Smith

Grief or bereavement, where pathological grief syndrome goes beyond what is classified as normal human emotion - Vernon v Bosley (1997)

Page v Smith - if physical injury is foreseeable, no need to foresee psychiatric damage too - if in fear of physical safety, follows that would reasonably suffer psychiatric harm

Primary victim always present so will be geographical proximity

Eggshell personality - same as thin skull - liable for all damages - Page v Smith

Once established, eggshell personality rule is applicable - if kind of injury foreseeable, full extent complensation even if exacerbated by predisposition to mental illness - Page v Smith #

  1. Manner of perception - sudden shock perceived by one's own senses unaided (strong link with proximity in time and space)

Quality of relationship proven by strength of bonds of love and affection, not particular blood or martial tie - must be proven though can be rebuttably presumed with parents, children, spouses or between siblings - not for grandparents/children or siblings

Most successful cases include parent/child or spouse relationship

McLoughlin

Hambrook v Stokes - witnessed runaway lorry heading down hill towards children

Rare cases where stranger may be able to claim, if particularly horrific - yet in Alcock and McFarlane were horrific and didn't succeed

McFarlane v EE Caledonia Ltd - denied

Can't claim if actual victim for whose safety they feared was the defendant - Greatorex v Greatorex (2000)

W v Essex County Council (2000) - Lord Slynn - has to be assessed in particular factual situation - recognised need for flexibility when dealing with new situations not covered by precedent

McLoughlin -Lord Wilberforce - shock must come through seeing or hearing of the event or immediate aftermath and condition arising as direct reaction - not valid where told by third party as this would dilute aftermath

Alcock - "the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind" - some only heard of Hillsborough through radio etc.

Possibility of liability mentioned in circumstances of live broadcast show accident so horrific that there could be no survivors