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)
- Is personal injury foreseeable?
- Proximity
- 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
- Was psychiatric damage foreseeable?
- Proximity of relationship between victim and claimant
- Proximity in time and space
- Loss caused by sudden shock
- 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
- Year that relevant cases were decided
- Overlap between foreseeability, proximity and fair, just and reasonableness
- Reason that the control factors have been introduced for secondary victims
- 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 #
- 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