It is well established that physical injury can give rise to a claim in tort, but what about psychiatric injury? The courts found it difficult to accept that psychiatric injury could constitute a head damage for which the tort of negligence would provide compensation, where it was caused by harm or threat of harm to a person other than a plaintiff.
What Is Psychiatric Injury?
Psychiatric injury has traditionally been known by courts as nervous shock which then has brought much confusion in the area of law by being completely misleading. This term implies that claimants can seek damages because they are shocked as the result of the defendant’s negligence, upset, or frightened. In order to claim for nervous shock, the claimants have to prove that they have suffered from a genuine illness or injury. In some situations the illness or injury may be a physical, brought as a result of mental shock. For example in Bourhill v Young, a woman had a miscarriage as a result of shock caused by witnessing a terrible road accident. If the shock has not caused a physical illness or injury, the claimant must prove that it caused a positive psychiatric illness as described in McLoughlin v O’Brian. Some examples of these include, clinical depression, personality changes and post traumatic stress disorder, which mostly occurs in reaction to the violent or unexpected death of a close person. However this does not include people who are simply upset by a shock no matter how bad it is, they have to recognize psychiatric illness and medical evidence will be needed to prove that. Therefore claimants who can prove such injury can only claim in negligence if they can be able to establish that they are owed a duty of care by the defendant in regarding the psychiatric illness, and the defendant’s negligence caused the injury. The case law then has developed a set of rules covering different situations of a claimant depending on their relationship with the event that caused the shock. These categories have varied at different stages of the law, however since the most recent case of Alcock v Chief Constable of South Yorkshire as well as White v Chief Constable of South Yorkshire there are now three categories:
- Those who are physically injured in the event caused by the defendant and psychiatrically injured as a result of it (primary victims)
- Those who are put in danger of physical harm but actually only suffer psychiatric injury (primary victims), and
- Those who are NOT put in danger of physical injury but only suffer psychiatric injury as a result of witnessing such injury to others (secondary victims)
A primary victim is one who suffers psychiatric injury after being directly in an accident and is either himself physically injured or put in a fear of injury. An accident victim who suffers physical injury due to the negligence of another person can recover damage not only for the physical injuries but also for the psychiatric injury. The case of White v Chief Constable of South Yorkshire confirms that if a person negligently puts another to a risk of injury, then they will be liable for any damage. This was established by the leading case of Dulieu v White & Sons where the defendant negligently drove his van into the premises, the victim feared for her safety, although she was not actually struck, she was frightened and suffered miscarriage as a result. The defendant was regarded liable even though there was no physical impact as he could have foreseen that the claimant would have suffered such shock. Therefore we can see that the issue of foreseeability has been taken into account regarding the primary victims, where if psychiatric injury is foreseeable in such a situation then the claimant can claim and be compensated.
The leading case of primary victims who are exposed to injury, but not actually physically hurt, is the case of Page v Smith where the victim was involved in an accident but was not injured, however he later suffered a serious illness called myalgic encephalomyelitis. Before the accident, this illness was in remission but after the accident the symptoms began to occur and he claimed it was caused by the shock of the accident. It was held in such a case there was duty of care and it was not necessary that the psychiatric injury itself was foreseeable because the defendant’s behavior would expose the victim to a risk of physical injury. This approach was followed in Simmons v British Steel plc where the claimant was physically injured in a workplace accident. He developed a severe skin condition as a result of shock and anger that happened to him. He had to take a lot of time off work, which then led him to develop a depressive illness. It was decided that the defendants were liable for his skin condition and depression that he suffered. It did not matter that the type of injuries was not foreseeable or that the victim who was more psychologically healthy might not have been affected in this way, as they had exposed him to a foreseeable risk of physical injury.
Although the claimant can claim for psychiatric illness caused by fears for their own safety even though no physical injury occurred, there has to be some basis for the fears. In McFarlane v Wilkinson, it was held that the fear has to be reasonable given the nature of the risk as well as the claimant’s situation. However what is unclear is whether the claimant can be considered as a primary victim if they were not actually in physical danger but had reasonable grounds for thinking that they might be. The two leading judgments in the case of White v Chief Constable of South Yorkshire differ a bit in this situation: First it was discussed that the claimant must have objectively exposed himself to danger or reasonably believed that he was doing so; on the other hand it was referred to primary victims being in the position of foreseeable physical injury. Obviously in many cases the reasonable belief that the claimant was in danger arises from the fact that they actually were.
Moreover in CJD Group B Claimants v The Medical Research Council it was suggested that there might be a group which could not be considered as primary victims in an actual sense but nevertheless should be treated the same way. Claimants in this case had growth problem as children and were treated with injections of growth hormone which later was discovered to have contaminated with virus which causes a fatal brain condition (Creutzfeldt – Jakob disease referred to as CJD) and they were regarded to be at risk of developing CJD. The claimants then had to live with fear of knowing that they might develop the disease and some of them suffered psychiatric injury as a result. The defendants were held liable as they had been negligent in allowing the injections to continue even after the risk of contamination was suspected. The claimants also claimed they were owed a duty of care as primary victims regarding psychiatric injury. However they were not considered to be primary victims in a real sense because the psychiatric injury was not actually initiated by the physical act of the injections, but by the fact that they might be at risk of developing CJD. Their claim was allowed although basing on the relationship of proximity between the parties that the psychiatric injuries were foreseeable, therefore no reason to exclude them from compensation.
A secondary victim is the one who suffers psychiatric injury as a result of witnessing or being informed about an accident which involves another. It is a bit difficult to begin with when the plaintiff himself is neither physically injured nor threatened with injury but can suffer psychological illness and claim for compensation. Among them there are groups of people who suffered psychiatric injury as a result of witnessing the death or injury of friends, relatives or work colleagues; those whose psychiatric injury has been caused by them bringing about death or injury to others where the ultimate cause was someone else’s negligence; and those who have suffered psychiatric injury as a result of acting as rescuers, both those who have voluntarily given assistance to others in danger, and those who have done so as a result of their jobs for example police officers.
Up until the case of White v Chief Constable of South Yorkshire, each of these groups were treated differently but after the above said case, they are all subject to the same rules developed in McLoughlin v O’Brian as well as Alcock v Chief Constable of Yorkshire which is that secondary victims could only claim for psychiatric injury in very limited circumstances. In McLoughlin v O’Brian, the claimant was not with her family when they were involved in an accident. One of her daughter was killed and her husband and two other children were injured badly. The claimant then rushed to the hospital when she was told about the accident and when she saw her family she then suffered psychiatric injury as a result, including clinical depression and personality changes. When she made a claim it was allowed although only witnesses who were present at the scene of a shocking incident were allowed to recover the psychiatric injury. The decision is a bit confusing though, however it was still suggested that the sole issue is still reasonable foresight, and she can claim because her psychiatric injury was foreseeable. The other judges though looked at it in another way and what they suggested seemed to be found in favor. The issue was that, psychiatric injury did not have to be reasonably foreseeable as itself it is not enough to create a duty of care towards the secondary victims. Secondary victims will have to satisfy a series of other requirements including their relationship with the primary victims of the shocking incident and their position with regard to the accident.
Alcock v Chief Constable of Yorkshire involved 10 appellants who suffered psychiatric injury as a result of a disaster in 1989 at Hillsborough Stadium, in which as a result of the admitted negligent defendants, 95 people were crushed to death, and over 400 people were physically injured. None of the appellants had suffered any physical injury, or being in any danger. In fact most of them were not at the ground though they saw part of the events on television. There was a need for the law to place some limitation beyond reasonable foreseeability and medical proof of causation. Due to that, Alcock’s case gave specific groups of people who could claim because between them there were those who had a special relationship with the dead or injured, and positions in relation to the incident (includes parents, grandparents, brothers, fiancés and friends) who either were at the stadium and witnessed the tragedy, seen it on television or being told the news by the third party. Having the claimants made claims concerning them suffering psychiatric injury due to that, the courts had to look at it in a different point of view since it was generally the policy of the common law not to compensate third parties. However there were some exceptions which were made. In order to recover psychiatric harm, it is necessary to consider the following;
First, the secondary victim must prove that psychiatric injury was a reasonable foreseeable consequence of the defendant’s negligence, and once that has been proven, three further tests have to be taken into account including, the nature and the cause of the psychiatric injury; the class of person into which the claimant falls in terms of their relationship to the primary victim(s) and the claimant’s proximity to the shocking incident in terms of time and place.
The Nature Of The Psychiatric Injury
A claimant must prove that their psychiatric damage amounts to a recognized psychiatric illness. Moreover the psychiatric damage must have been caused by the claimant suffering a sudden and unexpected shock caused by a horrifying event. This excludes those who suffer psychiatric illness as a result of suffering form loss of their beloved ones, or the stress of having to look after a disabled relative injured by negligence of another. In Sion v Hampstead Health Authority, the claimant developed a stress related psychiatric illness due to watching his sun slowly die in intensive care as a result of negligent medical treatment. As his psychiatric illness was not caused by a sudden shock, then he could not recover damage for it. However in contrast with the case of North Glamorgan NHS Trust v Walters where the claimant was a mother of a baby boy who died after receiving negligent treatment for which the defendants were responsible. The mother was asked to consider switching off the life support machine because the boy was regarded to have severe brain damage and was in a coma. She and her husband agreed to it and as a result of the events, she suffered a psychiatric illness. The courts said that the horrifying event could be made up of series of events, that is witnessing his son chocking and coughing blood, hearing news that her son was brain damaged after being told that he was not, and watching him dying. Each had their own immediate impact and could be differed from cases where psychiatric illness was caused by realizing that the child was dying. Therefore as long as a sudden shock is at least partly responsible for the claimant’s psychiatric illness, one can be able to claim for damage.
A Class Of Person
If a secondary victim can prove they suffered psychiatric illness due to a sudden shock caused by the defendant’s negligence, then they will also have to prove that they fall within a class of people which the law allows them to claim for compensation for such injuries. The key cases have focused on three possible classes of people
- Rescuers at the scene of accidents;
- Employees of the party causing the accident; and
- Unwitting Agents
These are people who suffer psychiatric injury as a result of helping the primary victims of a shocking incident. In the case of Chadwick v British Railways Board the claimant spent 12 hours helping victims of terrible train disaster which occurred near his home and over 90 people were killed. Due to the experience he suffered psychiatric illness and it was successful. Rescuers are not to be considered as a special category of secondary victims, but have to be subject to the normal rules on secondary victims. There is no pre-existing close relationship between them and the primary victims. However this does not much apply to special officers who act as rescuers since it is already their job, but rather voluntary rescuers can claim as secondary victims if at all they have not suffered any physical injuries but psychiatric illness as a result.
Employers are regarded to owe a duty of care towards employees to ensure that they are safe at work. Before the case of White, it was established that an employee had a right to recover for psychiatric illness caused by witnessing or fearing injury to fellow workers as a result of an employer’s negligence. However after the case, it was held that there was no such right. An employer’s duty to safeguard employees was not different from the duty of care owed by all people to others whom their conduct might affect. The employers’ duty to employees is an aspect of the law of negligence and its then subject to the normal rules of negligence. There is no special duty of care regarding psychiatric damage caused by employers to employees, just the normal rules. However one can claim if at all the psychiatric illness was a foreseeable consequence of the defendant’s negligence as given in the case of Dooley v Cammell Laird & Co Ltd
Although the case of White makes it clear that employees are not to be regarded as special group of psychiatric illness claimants, what remains unclear is those who witness a shocking accident caused by someone else’s negligence, and while they don’t suffer any physical injury themselves, they might be considered bystanders because some of their actions caused injury or death to others. For example in Dooley v Cammell Laird, the claimant without his fault, a load dropped into the hold of the ship being unloaded. He was able to claim for psychiatric injury caused by fearing for the safety of his colleague working below. However the case of White still doesn’t find the right to exist although up until the case of Hunter v British Coal, there seemed to be suggestions that unwitting agents may have a claim if they satisfy requirements of proximity of time and place. (How close they are to the shocking event in terms of time and place)
Conclusively, due to some areas of law being harsh and difficult under this, the Law Commission published reforms to make changes in relation to the rules for secondary victims being restrictive, requirement for a close tie between primary and secondary victims to be justified and remain, the requirement of proximity should be abolished and the requirement for psychiatric injury caused by sudden shock should be abandoned.
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