Psychiatric Illness Lecture

How does Tort Treat Psychiatric Illness?

In a similar manner to the way tort law treats economic loss, claims in tort for negligently caused psychiatric illness have their own set of rules which must be followed before a valid claim can be made. However, whilst it is relatively straightforward to see why economic losses should be controlled (namely, their potentially infinite nature), the contemporary reasoning behind the restriction on claims for psychiatric harm are a little less clear. Indeed, as will be revealed below, it is far easier for a claimant to make a claim for small cut on his or her arm, than it is for that same claimant to receive damages for years of psychological harm. Historically, the reasoning becomes a little clearer - it is only in recent years that psychological illness has become relatively well understood and accepted as a facet of healthcare, whereas in the past it was far more likely to be seen as a character flaw (e.g. male mental illness was ascribed to wimpiness, women were thought of as being hysterical etc.)

However, there is some obvious basis for restricting claims for psychiatric harm stemming from a negligent act. Take, for example, a particularly gruesome car accident. Physical harm will usually be restricted to the passengers in the involved vehicles, with some associated property damage. In contrast, the psychological ramifications of such an accident can be much further reaching. Those involved might be traumatised, but then so might those who are witness to the accident. At the same time, accidents tend to attract rescuers, both in an official capacity (fire, police services) and an unofficial capacity (passers-by), all of whom might be exposed to situations which take a long term toll on their mental health. Finally, the information age has brought about the ability for (at a leap) billions of individuals to witness a given event in both live and recorded forms, who themselves might be negatively affected by a witnessed event. It is thus clear that some restrictions need to be put in place in order to have a practically viable system for compensating psychiatric harm. These restrictions can be separated into two camps - firstly, there are restrictions on the nature of the psychiatric harms which can be claimed for. Secondly, whilst the elements of negligence (duty, breach, causation, remoteness) are the same for claim involving psychiatric harm, there are certain principles governing the exact forms that they take.

General Rule One: Psychiatric Injuries Must Be Medically Recognised

Not all psychiatric harms are recognised by the law equally. Instead, as a means of separating legitimate and illegitimate claims the law states that psychiatric injury must manifest in a medically recognised condition. In the past, legitimate claims were based around the idea of ‘nervous shock’, although nowadays you are more likely to find references to post-traumatic stress disorder (PTSD) and various other specifically defined mental illnesses.

Post-Traumatic Stress Disorder

This can be seen in Leach v Chief Constable of Gloucestershire Constabulary[1999] 1 WLR 1421. The claimant was working as an unpaid volunteer when, without warning as to the nature of his crimes, she agreed to act as an appropriate adult for serial killer Fred West during the investigation of his crimes. As a result she suffered PTSD (and a stroke). Due to their failure to provide proper support to the claimant, it was held that the defendant had failed in its duty to support her, and the claim succeeded.

Pathological Grief

As per Vernon v Bosley (No. 1) [1997] 1 All ER 577, pathological grief (read: really serious grief) constitutes a medically recognised condition in tort law. The claimant was called to a car accident in which his daughters died, and suffered from PTSD-like symptoms. The defendant argued that these symptoms were simply a matter of simple grief, and thus not actionable. The court disagreed - the claimant’s symptoms were beyond that which might be expected of usual grief.

Personality Disorder

As seen in Chadwick v British Railways Board[1967] 1 WLR 912, the claimant lived nearby to the site of a serious train crash (with 90 fatalities). He attended as an untrained rescuer, and due to the traumatic nature of the events he had witnessed, developed a number of personality disorders (namely, acute neurosis and anxiety) resulting in 6 months of treatment as a psychiatric inpatient.

Trauma-Induced Miscarriage

Although not strictly a psychiatric injury (rather, a physical harm occasioned by psychiatric trauma), there are a number of cases in which traumatic events have been linked to miscarriages. This can be seen in Bourhill v Young[1943] AC 92. The claimant, who was pregnant at the time, went into shock after witnessing the death of the defendant, who was riding his motorcycle carelessly. She subsequently brought a case against the defendant’s estate. It should be noted that the case failed - there was insufficient proximity between the defendant and the claimant, although it still stands as an example of miscarriage as a medically recognised injury for the purposes of tort.

Unrecognised Psychiatric Harms

As a general rule, sadness, grief or general distress are not covered - they are held to be expected parts of everyday life. The distinction between actionable grief and anxiety and non-actionable grief and anxiety can be seen in two cases.

Case in Focus: Hinz v Berry [1970] 2 QB 40
The defendant lost control of his vehicle at speed, crashing into a stationery car and killing the claimant’s husband and badly injuring her children. The courts made a distinction between the morbid depression that the claimant suffered and ordinary inactionable grief:

"In English law no damages are awarded for grief or sorrow caused by a person's death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant."
- Lord Denning MR, at 41.

A similar rationale can be seen in Rothwell v Chemical and Insulating Co [2007] UKHL 39. The claimants sued their employer when they discovered that they had developed pleural plaques in their lungs - an indication that they had been exposed to dangerous levels of asbestos. The courts rejected their claims for the anxiety caused by the knowledge that they might later develop a more serious disorder, because the anxiety had not manifested itself in any diagnosed state. Notably, there was one claimant who did develop a mental illness as a result of this anxiety, and so surpassed this hurdle, but the claim failed for lack of foreseeability.

Exam Consideration: You are unlikely to have a working knowledge of all mental health conditions, and so it will usually be up to you to work out whether the injury constitutes a recognised condition. If you’re lucky, it will be obvious (e.g. the claimant will be described precisely as having PTSD or depression.)

If general symptoms are offered up, then ask whether the symptoms described affect the claimant’s behaviour on a long-term basis (e.g. sleepless disorders, anxiety). If so, then they will roughly fit into the PTSD or pathological grief criteria. If symptoms are short-term, then they are more likely to fit into the general, non-actionable mental distress category.

If outside of an exam setting, a list of generally recognised conditions can be found online, in the Diagnostic and Statistical Manual of Mental Disorders (usually abbreviated as DSM-5).

General Rule Two: Psychiatric Injuries Must be Caused by a Sudden Event

As a means of controlling the claims made under the heading of psychiatric injury, the courts have also stipulated that such injury must now be caused by a sudden event. This means that cases involving ‘slow burn’ illness (such as long term exposure to a harmful influence) are unlikely to be recoverable under this heading of damages.

Case in Focus: Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310

The case arose as a result of the 1998 Hillsborough Disaster. In short: various police failings meant that a large crowd of football supporters were allowed into a crowded, fenced-in terrace at a Hillsborough football stadium. In turn, this led to a severe crowd crush incident in which 95 people were killed. This was witnessed by a large number of individuals - both in-person and via TV broadcasts of the disaster as it occurred. In reference to the types of claims which are recognised by tort, Lord Ackner said the following:

"Shock in this context involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It does not include psychiatric illness caused by the accumulation over a period of time of more gradual attacks of the nervous system."
- Lord Ackner, at para. 400E

Thus, in order for a psychiatric injury to be recognised as actionable in tort, it must be caused by the claimant suddenly seeing something distressing. In addition to this key principle, this case also provides an outline of the primary and secondary victim classes (discussed below.) It also provides a key example of the potentially wide-reaching effects of a negligent act in when public media is involved.

The idea of ‘suddenness’ should not be taken to mean ‘immediate’. This can be seen in Walters v North Glamorgan NHS Trust[2002] EWCA Civ 1792 - the claimant’s 10-month-old son suffered negligently caused liver failure, and died over the next 36 hours. Although the event itself was relatively protracted, this was held to be sufficiently immediate.

Duty of Care and Psychiatric Harm

Assuming the above rules have been followed, the next step is establishing a duty of care between claimant and defendant. As per Alcock (facts immediately above), this duty of care is based on three elements - foreseeability, proximity, and nature of ‘shock’. It is important to note at this point the distinction the law makes between the duty a defendant has towards primary victims and the duty a defendant has towards secondary victims.

Case in Focus: Page v Smith [1996] AC 155

The defendant negligently failed to give way when moving from a side road onto a main road. This resulted in a collision with the claimant’s car. Whilst the claimant was physically unharmed by the accident, it caused him to suffer from myalgic encephalomyelitis (ME) (also known as Chronic Fatigue Syndrome) - a psychiatric injury which he had previously had, but which was in remission before the accident. The key issue was whether this harm was foreseeable or not.

The court held that that two classes of claimants exist with regard to psychiatric injury - primary and secondary. With the former class including those directly involved in an accident or incident (for example, those in the car for traffic accidents), and the latter including those who witness the accident or incident. It was held that for primary victims, foreseeability of a physical injury is sufficient to allow a primary victim to claim for a psychiatric injury. So, in a traffic accident such as this one, if it is held to be reasonably foreseeable that turning onto a main road unexpectedly would cause physical harm, then this is regarded as being sufficient to establish foreseeability of psychiatric harm.

The Scope of Primary Victims

Whilst, broadly, the primary victim category is relatively straight forward to understand, there have been two specific groups of people that the law has historically placed in the primary category.

The first of these groups are rescuers - those who attend the scene of an accident. Whilst these were included in the primary category in Alcock, the law has since been modified so that rescuers are only considered primary victims when they are either objectively exposed to danger or they hold a reasonable belief that they are in danger. The source for this principle can be found in White and Others v Chief Constable of the South Yorkshire Police[1999] 2 AC 455. Like Alcock, this case also revolved around the events of the Hillsborough disaster, but involved various members of the police claiming for psychiatric injury as rescuers attending the disaster. The court rejected the idea that they were primary victims of the event, stating that in order to fit into this category they must be exposed (or reasonably believe themselves to be exposed) to danger. This was not the case for the police, and so the claim failed. It was also notably pointed out that there were already statutory schemes in place aimed at helping police exposed to particular traumatic events.

To better understand the primary victim principle, consider the following example. A negligently caused explosion on an oil-rig results in a fire. There are three ways someone can become a primary victim of such an event. Firstly, those hurt by the explosion will be primary victims - they are physically harmed by the negligence (and this is foreseeable). Thus, following Page they will be able to claim for psychiatric injury.

Secondly, there are those who come to the aid of the oil-rig workers after seeing the explosion. Assuming that those rescuers are place into physical risk by the fire, they can be considered to be in the ‘danger-zone’, and are therefore primary victims, who can claim for psychiatric injury, as per White.

Thirdly and finally, some of those who attend might not factually be exposed to the dangers of the fire, but might believe themselves to be - for instance, they might rush in to help others, believe themselves to be at risk, when in actual fact the fire has been contained. As long as the rescuer’s belief that they are in the danger-zone is reasonable, then they will be able to claim for psychiatric injury as a primary victim, again, as per White.

The second group of people is those who believed themselves to have caused the death or injury of another were included in this category. Note: such people are now regarded as secondary victims, although for a short while they were seen as primary victims.

This can be seen in Dooley v Cammell Laird[1971] 1 Lloyd’s Rep 271 - the claimant was a dockside crane operator working for the defendant. Whilst loading a ship with heavy materials, the cable on the defendant’s crane snapped (it emerged that the cable provided was too weak for the job). The load dropped suddenly into the hold of the ship. This meant that the claimant could not see if he had killed anyone or not. Believing, temporarily, that he had killed somebody (or a number of people), the claimant suffered acute shock, aggravating a pre-existing psychological condition. This was held to be a valid claim - the claimant had a reasonable belief that he had killed someone.

This was later refined so that the claimant had to be present when death or injury occurred. So, in Hunter v British Coal[1998] 2 All ER 97, an operator of mining vehicle hit a water hydrant whilst driving through a poorly lit, overly narrow section of mine. He attempted to close the hydrant with the help of a colleague. He left temporarily to get a hose to drain the pooling water. The hydrant then exploded, killing his colleague. He ran to turn off the water, and was told 10 minutes later that his colleague was dead. He believed that he was responsible for killing his colleague (because he drove into the hydrant.) As a result, he became ill with serious depression. In legal terms, however, the accident was held to be caused by the defendant, who had a responsibility to properly maintain the mine, so as to avoid such accidents. However, the claimant’s case failed - he was not present when the death (or injury) actually occurred, and only found out about it 10 minutes later.

Exam Consideration: Remember, unless exposed to danger (as per White), those who are caused to believe themselves to have killed someone are now considered to be secondary, rather than primary victims. Nonetheless, in discussing the development of the law it is important to know how the category of primary victims has changed over the past few decades.

Secondary Victims

In order for a claimant to have a viable claim as a secondary victim, they must satisfy a number of criteria. Firstly, there must be a close emotional link between the traumatic event and the claimant’s psychiatric injury. In other worlds, the courts largely require that the secondary victim be closely related in some way to a primary victim. Alcock once again illustrates this point: although ten of the claimants involved were relatives of primary victims of the incident, it was held that the police had no duty to them, because they were not spouses or parents of primary victims. Regardless of this ruling, it should be emphasised that the rule is that there must be a close emotional link, not that the secondary victim must be a husband or parent of a primary victim. Rather, whilst cases involving spouses and parents have a rebuttable presumption towards there being a sufficiently close relationship, other relationships can satisfy this criterion. It should also be noted that this rule becomes proportionally more relaxed in relation to the seriousness of the harm to the primary victim.

Indeed, it was mooted in McFarlane v EE Caledonia Ltd[1995] 2 All ER 1, that should the situation be sufficiently grievous a bystander might be able to claim - although it should also be acknowledged that the claim was rejected in this case. So, a less serious incident affecting the primary victim requires a closer relationship before a claim can be made, and vice versa.

Exam Consideration: Because of the relative vagueness of the ‘close relationship’ category, it can often crop up in problem questions as a means of testing your ability to argue coherently in situations without clear cut rules. This might take the form of either an estranged parental or spousal relationship (in other words: you need to rebut the presumption), or a different family tie which is described in the text as being extremely close, such as siblings or fiancées (in this situation, you’ll need to argue for the closeness of the relationship.)

Secondly, the secondary victim must be both close in terms of ‘spatial and temporal proximity’ (translation: same time, same place.) In other words, there must be at least a rough correlation between the harm done to the primary victim and the secondary victim’s experience of the harm. As seen in McLoughlin v O’Brian[1983] 1 AC 410, this extends a relatively long time after the instigating event. The claimant’s husband and children were involved in a serious traffic accident. The claimant only found out about the accident two hours later, and she was immediately taken to the hospital to see her family. She then learned that her youngest daughter had been killed, and saw the injuries of her husband and children, who were still covered in oil and mud. The claimant sued the defendant for psychiatric injury. Her claim succeeded - the claimant came upon the immediate aftermath of the incident, and this was held to be sufficiently close in space and time.

Thirdly, the secondary victim must see or hear the immediate aftermath of the instigating event. The importance of such a rule can be seen in Alcock - a huge number of people saw the events over TV (remember, the disaster took place during a football broadcast, and then via live news.) It should be noted that the rule is not that seeing a primary victim die or get injured on a TV broadcast makes a claim invalid. Instead, the logic in Alcock was that it was impossible to identify individual primary victims from the broadcast, and so whilst viewers might know a close relation was in that particular stand of the stadium, they could not directly see the harm done to them. Indeed, Lord Acker notes that it is possible for a secondary victim to have a valid claim upon seeing a primary victim over television:

"Although the television pictures certainly gave rise to feelings of the deepest anxiety and distress, in the circumstances of this case the simultaneous television broadcasts of what occurred cannot be equated with the "sight or hearing of the event or its immediate aftermath." Accordingly shocks sustained by reason of these broadcasts cannot found a claim. […] Many other such situations could be imagined where the impact of the simultaneous television pictures would be as great, if not greater, than the actual sight of the accident.”
- Lord Acker, at 921.

These three criteria combined provide the basis for a claim as a secondary victim. As can be seen, none of these criteria are particularly strict. Because of this, it is often helpful to think of each of them as existing along a spectrum, in combination with the seriousness of the involved incident, so a relationship spectrum, a proximity spectrum, and a perception spectrum. A case which ‘scores high’ on these three, and involves a serious harm is likely to be a valid claim - so a wife who sees her husband die in front of her, with her own eyes is likely to have a valid claim. Conversely, a distant third cousin, who finds out about a primary victim’s bruise days later when they see it happen on television, is not likely to have a claim.

Exam Consideration: A useful memory aid for the elements of secondary victims’ claims is to create your own fictional situation (such as those immediately above) as a means of bringing all of the elements together.

Other Legal Principles

There are a few other principles which apply in cases of psychiatric injury.

Foreseeability

When dealing with secondary victims, it must be reasonably foreseeable that a psychiatric injury might occur to someone in the given circumstances. So, to reiterate, when dealing with primary victims the standard is foreseeable physical or psychiatric injury, whilst when with secondary victims the standard is just foreseeable psychiatric injury.

The ‘Egg-shell Skull’ Rule

Secondly, the ‘egg-shell skull’ (as often seen in criminal law) applies to psychiatric injury. In essence, this means that a claimant’s particular psychiatric injury does not need to be foreseeable - the mere fact that some psychiatric harm is foreseeable is enough to satisfy the criteria. This rule can be seen in Brice v Brown[1984] 1 All ER 997 - the claimant was particularly susceptible to mental illness due to a pre-existing condition. As a result of a car crash, she became neurotically obsessed with her daughter’s safety. She sued for psychiatric injury and lost - it was not foreseeable that a person of reasonable fortitude would acquire a psychiatric injury from an accident of the nature involved in the case. However, had some psychiatric injury been foreseeable, then the defendant would have been held accountable for the full extent of the claimant’s condition - not just that which could be reasonable foreseen.

Primary Victim as Defendant

Secondary victims cannot recover when the defendant is also the primary victim. In other words, if an individual negligently causes themselves a horrible injury, a secondary victim cannot sue for psychiatric injury, as per Greatorex v Greatorex[2000] 4 All ER 769.

Damage to Property

Although the case law regarding secondary victims focuses on seeing other people get hurt, there is precedent to suggest that seeing property destroyed can be sufficient to establish a case for psychiatric injury. This can be seen in Attia v British Gas[1988] QB 304 - the claimant returned home one day to see her house fiercely aflame, as a result of negligence by the defendant. It was held to be foreseeable that such a sight would cause psychiatric injury, and so damages were recoverable.

Injurious News

Finally, there is precedent to suggest that negligently presenting shocking news to someone that can meet the standard for actionable psychiatric injury. In Allin v City and Hackney Health Authority [1996] 7 Med LR 167, the claimant was told, inaccurately, that her baby was dead. It was held that the defendant had a duty to avoid such false disclosures, and so a case for psychiatric injury was found to exist.


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