Compensation for pure psychiatric harm

“The law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify", Lord Steyn, Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 500.Discuss this statement in a critical evaluation of the common law duty of care for negligently inflicted “nervous shock".

The question of recovery for nervous shock (or psychiatric injury ) negligently caused by another has been one which has perplexed various courts in various common law jurisdictions throughout the world since it was first established in the case of Byrne v Southern and Western Railway Co. [1] . Can you recover for nervous shock? In what circumstances could people recover for nervous shock? Who could recover for nervous shock? In the course of this essay I will look at discuss the various ways in which courts in various common law jurisdictions have attempted to deal with these questions.

What is nervous shock?

Nervous shock is the onset of a psychiatric illness caused by witnessing the negligent action, or the results thereof, of another. For the purposes of succeeding in a suit it must be diagnosed as more than grief or sorrow i.e. an actual psychiatric illness. Nicholas N Chin says that the nervous shock “. . . label refers to a wide range of recognized psychiatric illnesses such as phobic anxiety, neuroses and post-traumatic stress disorder, which are more than simply grief, upset or unhappiness." [2] John Eric Erichsen described nervous shock injuries as part of a clinical pattern following railway accidents [3] . Erichsen said that many of the railway accidents lead to “severe and prolonged" nervous shock, “weariness", “cramps" and other symptoms. Lords Keith and Oliver in Alcock & Others v Chief Constable Of South Yorkshire Police [4] feel that the term nervous shock is a “misleading" one as in fact it covers a wide variety of possible claims in that area of negligence.

Can you recover for psychiatric injuries?

There exists some uncertainty as to whether the courts can accurately determine the extent of a psychiatric injury with regard to the appropriate level of recovery that could or should be awarded. This is illustrated in the 19th Century case of Lynch v Knight [5] .

“Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone" [6] 

This view was echoed in Gatzow v Buening [7] .The judges on this side of the argument say that in matters relating to psychiatric injury the monetary value of recovery would be purely based on speculation or conjecture and also that injuries could be feigned [8] . In his book [9] , Butler argues that this would be no more uncertain than the attempts by judges in other cases to try to “restore the plaintiff to the position he or she occupied prior to an accident".

Particularly in today’s world where there have been so many medical advances since the time of the Lynch decision recovery on the basis of purely psychiatric injury should really be no more difficult then recovery for a physical injury.

Ireland and England:

The Irish decision of Byrne v Southern and Western Railway Co. [10] paved the way for recovery for nervous shock. It concerned a superintendent of the telegraph office (plaintiff) at Limerick Junction railway station. The railway points were left open negligently. A train then arrived and broke through the wall of the telegraph office. The plaintiff sued for shock and the judgement of the trial court and Court of Appeal was in his favour.

This decision sparked many decisions which increasingly recognised and compensated victims of nervous shock. However it would’ve helped more claims had the case have been reported. Palles C.B said “It is a sad commentary upon our system of reporting that a decision so important and so novel has never found its way into our Law Reports". Therefore it wasn’t used in the case that came before the Privy Council of Victoria Railway Commissioners v Coultas [11] .

The issue of nervous shock was dealt with again in the Irish court in the case of Bell v Great Northern Railway Co. [12] . The judgement of the court this time was significant as they had the choice of both the Byrne and Coultas verdicts. Luckily enough for the plaintiff in this situation the decision of Coultas was that of the Privy Council, for if it had been a decision of the House of Lords then the Irish courts would have been bound by precedent to follow it. Instead they followed that of Byrne. Palles CB said “As the relation between fright and injury to the nerve and brain structures of the body is a matter which depends entirely upon scientific and medical testimony, it is impossible for any court to lay down, as a matter of law, that if negligence causes fright, and such fright, in its turn, so affects such structures as to cause injury to health, such injury cannot be a consequence which in the ordinary course of things would flow from the negligence unless such injury accompanies such negligence in point of time". Former Chief Justice Ronan Keane said in an address to NUI Galway’s Law Society [13] that Palles CB’s judgement was ahead of its time.

Dulieu v White [14] followed Byrne and Bell despite the defendant’ reliance in the case on Coultas. The plaintiff in this case was the pregnant wife of a publican. The defendants and their servant negligently drove a pair-horse van into the public-house. The plaintiff was severely shocked, was subsequently ill and then gave birth to a premature child who was born an idiot. The plaintiff sought damages and was awarded them by the court. In this case Kennedy J in his dictum said that you can only claim nervous shock if the fright is for yourself and not for a third party.

The Privy Council’s decision in Coultas was overly harsh on the plaintiff. It appears that this was done so as to prevent floodgates from opening in the case of a false claim. Not only does this wrongly victimise the worthy plaintiffs out there but it also has a very negative view of the legal system as a whole almost implying that if such a case came about the legal system wouldn’t be able to identify it. It can be argued that this view is affirmed in the decisions of the courts in both Bell and Dulieu.

In Hambrook v Stokes Bros. [15] Mrs. Hambrook, who was pregnant at the time, had just dropped her three children off at the corner by the school. As she was walking away she saw a lorry, negligently left unattended with the engine running, coming rapidly towards her. She wasn’t in personal danger but she feared for her children. A crowd gathered and rumours that a young girl with glasses had been injured. This fit the description of her daughter. She became very anxious and raced to the school to find her children. There she discovered that the girl who was injured was her daughter. She went to the hospital and found her child seriously injured. Mrs. Hambrook developed nervous shock from which she haemorrhaged. Two months later she was operated on and the dead foetus removed and several days after this she died. The plaintiff (her husband) sued for the loss of her services as manager in his restaurant. The question was could there be recovery for apprehension or fear for a third party. It was held by the majority that in certain circumstances it is unduly harsh to say that you can only recover for fear for your own safety. Two of the judges offered up scenarios where two mothers and children are on a street with a car hurtling towards them. They ask should the mother whose thought is only for herself be allowed to recover or the mother whose fear is for her child? Since this case it has been held that it is possible to recover damages for nervous shock occurring after either actual or apprehended physical injury not only to the plaintiff but also to a third party.

It is apparent from the views of the majority of the court in Hambrook that they feel that Kennedy J requirement that the fear must be for oneself would be too harsh in certain circumstances and that it shouldn’t be considered good law in every case concerning third party nervous shock. This is a much more reasonable outlook. It takes into account that there are circumstances where the nervous shock of fear for a third party should be recoverable, particularly in the situation in the analogy made by the judges.

In Hinz v Berry [16] the plaintiff was out for a drive with her husband and four children. On the way home they stopped for a picnic in a lay-by. The plaintiff crossed the road with one child to pick bluebells. A car driven by the defendant was out of control and it crashed into the van where her husband and other children were making tea. On hearing the crash the plaintiff turned around and saw the accident. Her husband was very seriously injured and died a short while after and most of the children suffered injuries. After the shock of witnessing the crash she suffered prolonged morbid depression. The Court held that she was entitled to recover damages because she had a recognisable psychiatric illness. This was in part due also to the close relationship between her and some of the parties to the crash.

This judgement allows recovery for “any recognisable psychiatric illness caused by the breach of duty of the defendant". It specifies that it must be more than just grief or sorrow in order to recover damages for nervous shock.

In Alcock v Chief Constable of South Yorkshire [17] 

The case of Page v Smith [18] 

In the Singapore case of Ngiam Kong Seng and another v Lim Chiew Hock [19] "the House of Lords drew a clear distinction between primary and secondary victims. . . Page not only brought this distinction to the fore, but also elaborated upon it in some detail. More importantly, the House of Lords held in Page that where the plaintiff was the primary victim, he or she was entitled to recovery against the defendant even when the psychiatric harm suffered was not reasonably foreseeable by the latter – provided that physical injury to the plaintiff (which he or she apprehended and which need not have actually occurred) was foreseeable and the apprehension of such physical injury resulted in the psychiatric harm."

According to Lord Lloyd in the Page case “There is no justification for regarding physical and psychiatric injury as different “kinds" of injury. Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both."

McLoughlin v O’Brian

In the Singapore case of Ngiam Kong Seng and another v Lim Chiew Hock [20] the court said “McLoughlin was a major landmark in the law relating to liability for negligence that had inflicted psychiatric harm on the victim/plaintiff. It represented a detailed (and up-to-date) analysis of the law and laid down further guidelines for the courts."

Lord Wilberforce “It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused."

Canada:

Mustapha v Culligan of Canada Ltd (2006) 84 OR (3d) 457 CA

Vanek v Great Atlantic and Pacific Co. Of Canada [1997] OJ NO 3304

Syl Apps Secure Treatment Centre v BD

Singapore:

Under Singapore law the courts are not bound by the decisions of foreign courts as they are not part of the hierarchy of courts in Singapore. Amarjeet JC in his case Pang Koi Fa v Lim Djoe Phing [21] says of this “. . .nonetheless, in respect of decisions in common law, particularly in the area of tort in general and negligence in particular, decisions of the highest court in England should be highly persuasive if not practically binding. As such, full regard must be had to the position in the law as a result of Alcock".

In this case a mother (the plaintiff) sued a neurosurgeon (the defendant) on the basis that she developed a psychiatric illness (personality change, suicide attempt and depression), after witnessing the ill-health and death of her daughter, which was negligently caused by the defendant. Prior to this case the defendant had already been found liable in negligence for the death of the plaintiff’s daughter [22] . Amarjeet JC found for the plaintiff and awarded recovery for nervous shock. Throughout his judgement, Amarjeet JC extensively analyses English judgements on nervous shock and negligence. In particular he follows Lord Wilberforce’s three proximity requirements in the McLoughlin v O’Brian [23] decision: “It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused."

A more recent Singapore case of 2008, Ngiam Kong Seng and another v Lim Chiew Hock [24] , looks at whether or not a duty of care exists, in Singapore law, for nervous shock. A man (first appellant) was involved in a motor accident. As a result he was left tetraplegic and dependant for the rest of his life on a care-giver, mainly his wife (second appellant). Initially the respondent claimed to have been a helpful bystander. Due to this the second appellant grew fond of him. Subsequently she discovered that the respondent was involved in the accident and developed depression and suicidal tendencies due to the betrayal. The judges in this case endorsed in part the decision in Pang Koi Fa v Lim Djoe Phing in so far as it follows the McLoughlin v O’Brian decision. However instead of using solely the three proximity requirements set out by Lord Wilberforce [25] , the court incorporates with them a two stage test set out in a Singapore case, Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [26] , which are proximity and policy considerations. The court in this case rejects the claim from Page [27] that primary victims don’t have to prove that the psychiatric injury was reasonably foreseeable, as long as some physical damages were reasonably foreseen.

The Court in the Ngiam Kong Seng case said that there was a lack of case law in the area of psychiatric injury. This explains their reliance on foreign case law, in particular English case law on the matter. The Singapore courts allow recovery for nervous shock. For recovery under Singapore law primary victims must prove that psychiatric injury was reasonably foreseeable. Secondary victims may also recover for nervous shock but they must fulfil the proximity requirements from Alcock [28] .

South Africa:

Pham v Lawson (1997) 68 SASR 124

Barnard v Santam Bpk (1999) SA 202

New Zealand:

Queenstown Lakes District Council v Palmer [199] 1 NZLR 549 CA

Brickwell v Attorney General [2000] 1 ERNZ 529

J and P Van Soest And Others v Residual Health Managment Unit and K Ramstead [2000] 1 NZLR 179 CA

Australia:

Gillespie v Commonwealth of Australia [1991] 104] ACTR 15

Jaensch v Coffey (1984) 155 CLR 549

Campbellstown City Council v Mackay (1989) 15 NSWLR 501

Coates v Government Insurance Office of NSW (1995) 36 NSWLR 1

Reeve v Brisbane City Council [1995] 2 Qd R 661

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 33