Psychiatric Harm – Development of the Law in the United Kingdom.
Psychiatric harm concerns damage to the mind rather than the body. Traditionally lawyers have referred to this type of harm as nervous shock, but the courts have indicated that they prefer the expression psychiatric harm in the case of Attia v British Gas PLC 1987. Historically, psychiatric harm was given very little attention in the law due to a lack of understanding of how the mind works, which means it has developed very slowly. To claim psychiatric injury a claimant must establish harm over and above ordinary grief and distress, and be suffering from an identifiable and recognised medical condition. Failing to meet these criterion will mean a claimant cannot claim they have suffered psychiatric injury.
This area of law has created several issues. The first of which is the issue of distinguishing a genuine claim from a fictitious one, which is because the damage is not always quantifiable or obvious. In an ordinary claim of negligence the damage is usually observable from by the eye or diagnosable through established medical testing. Another issue is a floodgates argument – Ordinary damage is limited to those within the range of impact, whereas psychiatric damage was potentially limitless. Although, the court has since put restrictions onto this.
There are several controlling mechanisms to claiming psychiatric injury. The first is that there is a requirement for a medically diagnosed psychiatric condition – mere grief, distress or anger is not enough to claim, as in Hinz v Berry 1970. The reason for this is that grief, sorrow, deprivation and the necessity of caring for loved ones who have suffered injury is a part of life, which we must accept per Lord Oliver in Alcock v Chief Constable of South Yorkshire 1991. Damages will only be awarded where there is a recognised psychiatric injury.
There must also be a sudden event or its immediate aftermath. Prolonged exposure to something which results in psychiatric injury cannot be claimed for under psychiatric injury because it is not nervous shock. The case of Sion v Hampstead Health Authority 1994 highlights this point as a father watched his son dye for two weeks. His claim was not immediate or the immediate aftermath, which meant he could not claim for psychiatric injury.
Initially the common law denied liability for psychiatric injury until the early twentieth century. In 1901 a claim by a barmaid for psychiatric injury was successful after a servant drove a horse and carriage through a pub window in Dulieu v White & Sons. The claimant was entitled to recover as the shock was due to the fear for her own safety. Shock suffered for the fear of another would not be compensated in this case. Dulieu is an example of the earliest case of a primary victim.
In Hambrook v Stokes Bros 1925 a mother feared for the lives of her children after seeing a lorry hurtle towards her children, she did not actually see the lorry hit her children, but believed that it had. This case allowed to claim for witnessing harm to others, but also imposed a restriction on witnessing harm to another, which was that the shock should occur as a result of what the claimant witnessed with her own unaided senses.
This is the first reported case in England where a secondary victim has been successful in recovering damages. Two factors became important in determining whether a person owes a duty to not cause psychiatric harm; The first was closeness of the claimant to the accident and whether the defendant knew of the claimants presence. The second was the relationship between the person suffering the psychiatric damage and the person in danger, it became apparent that close family ties would be sufficient.
The law accommodated relationships outside of familial ties. In cases where fellow employees were in danger the courts held that a duty will be owed, as in Dooley v Cammell Liard & Co Ltd 1951. Relationships between a rescuer and victims gave rise to a duty to the rescuer because rescuing invited danger, as in Chadwick v British Railways Board 1967.
The law now deals with cases in one of two ways – A person will either claim as a primary or secondary victim. Primary Victim was a term introduced by Lord Oliver in Alcock v Chief Constable for the South Yorkshire Police. A primary victim is someone who is directly involved in the accident, and well within the range of foreseeable physical injury. A secondary Victim is someone who can be described as a bystander or spectator. These definitions are as Lord Lloyd defined in Page v Smith 1995.
The distinction between primary and secondary victims can be best seen by looking at Page v Smith 1995. The House of Lords held that in primary victim cases the duty of care was established by the reasonable foreseeability of physical damage to the claimant. Essentially there is no distinction between psychiatric damage and physical damage. The control mechanism required to be used by Secondary victims are also not applicable because of the claimants physical proximity. A claimant will be capable of recovering the full extent of their injuries if there is foreseeability of physical harm.This is subject to a narrow interpretation, especially with being put in fear of injury, which is discussed in Rothwell v Chemical Insulation Co
However, there may well be cases which question whether the claimant was within the area of physical damage. The case of McFarlane v EE Caledonia Ltd 1994 best illustrates this point. This case was about McFarlane witnessing an oil rig exploding several times before being evacuated, he claimed for psychiatric harm. The Court of Appeal rejected his claim because he was not in the actual area of danger on the oil rig. There was no physical injury sustained, and no foreseeability of harm.
Secondary Victims are described as bystanders, this is evidenced by the case of Bourhill v Young. In this case a pregnant woman was getting off a tram when she heard a motorcycle collide with a car. She did not see this happen, but it happened where she had just dropped her children. The claimant saw blood at the scene and she said this caused the stillbirth of her child. The court held that her injuries were not foreseeable and that members of the public are expected to have some fortitude. She was also not in any foreseeable danger. From Bourhill onwards, the foreseeability of secondary victims became to be assessed in terms of time, space and geography, causation and the relationship to the victim.
The importance of the secondary victim assessment were stressed in the case of McLoughin v O’Brien. In this case a mother arrived at a hospital where she found them untreated and learned of one child’s death. She claimed for psychiatric injury and the House of Lords held that she was a secondary victim owing to her relationship to the victims, and she had proximity because she witnessed the immediate aftermath.
The leading case on secondary victims comes from Alcock v Chief Constable of South Yorkshire Police. This case expanded on the foreseeability criteria from Bourhill and McLoughlin and held unanimously that none of the plaintiffs in the case could claim. This case provided the three Alcock criteria for foreseeability, which is essential to determine whether a duty of care is owed to a secondary victim:
- A sufficiently close relationship of love and affection with the primary victim.
- Proximity to the accident or its immediate aftermath, which is sufficiently close in time and space
- Sudden appreciation of sight or sound of a horrifying event which violently agitated the mind.
The status of a rescuer is something that is unclear at law because of two conflicting cases. In Chadwick v British Railways 1967 because the rescuer put themselves into immediate danger they were considered as primary victims. However, in the case of White v Chief Constable of South Yorkshire Police rescuers were not primary victims. The House of Lords applied the Alcock test, which they failed as they had no close ties of love and affection to the victims. One of the reasons this was done was because Alcock did not allow relatives to claim for psychiatric injury, so it could not allow police officer to claim.
The law commission report 1998 suggested that the development of Primary victim cases was left to the court to decide. However, the report makes several suggestions regarding secondary victim cases and imposing legislation. The legislation would aim to remove the requirement of sudden shock, which will allow gradual psychiatric injury to be claimed, the second and third requirements of Alcock would be removed, but the close connection of love and affection would remain. These proposals have not been acted on, but could still be crucial to the development of the law of Psychiatric injury.