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•Hinz v Berry –Recognised Psychiatric Illness
- PTSD
- Pathological Grief Disorder
- Clinical Depression
- Less serious mental conditions arenot actionable such as:Worry, ordinary grief, sorrow,emotional distress
Held: The defendant’s appeal on liability succeeded. It was difficult, if not impossible, to recover damages for ‘illness which was the effect of shock caused by fright’. Such injury was regarded as being too remote a head of damages in an action for negligence. There would be evidential difficulty in deciding upon the causes of psychiatric symptoms.
“Damages arising from mere sudden terror unaccompanied by any actual physical injury but occasioning a nervous or mental shock cannot … be considered a consequence which … would flow from the negligence of the gatekeeper.”
duty of care - psychiatric harm - background
Held: An action could lie in negligence for nervous shock arising from a reasonable fear for one’s own immediate safety.
“If impact be not necessary, and if, as must be assumed here, the fear is proved to have naturally and directly produced physical effects, so that the ill results of the negligence which caused the fear are as measurable in damages as the same results would be if they arose from an actual impact, why should not an action for those damages lie just as well as it lies where there has been an actual impact ? It is not, however, to be taken that in my view every nervous shock occasioned by negligence and producing physical injury to the sufferer gives a cause of action. There is, I am inclined to think, at least one limitation. The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself.” NBdon’tneed a recognised illness where the shock results in physical injury
Issue Could people outside the zone of immediate physical danger be owed a duty of care? Held Yes, recovery allowed. The husband was entitled to recover for the shock inflicted on her due to the reasonable fear of the immediate injury to her child from the runaway lorry.
Reasoning People outside the zone of danger could recover for mental injury (we’d now call these people secondary victims) for fear for her children’s lives For recovery to succeed, the claimant must have seen the event first hand first hand, not had the event communicated by others in any way
FACTS One of M's children was killed and her husband and other two children were severely injured in a road accident. The incident was reported to M while she was at her home, some two miles from the scene. At the hospital M saw the extent of the injuries to her family and heard of the death of her daughter, as a result of which she suffered severe and persisting nervous shock, for which she claimed damages.
HELD Held, that the test of liability for nervous shock is the ordinary test of reasonable foreseeability. If it was reasonably foreseeable that M would suffer nervous shock, even though nowhere near the scene of the accident, she was entitled to recover. In considering the question of reasonable foreseeability there are no legal limitations of time, space, distance, nature of injuries, or the relationship of victim to plaintiff, although these are all factors to be considered.
duty of care - psychiatric harm - current duty of care test: the primary / secondaryvictim distinction
Held: The appeals were dismissed.
Lord Oliver set out the distinction between primary and secondary victims. A primary victim one involved mediately or immediately as a participant and a secondary victim one who is no more than a passive and unwilling witness of injury to others. The claimants were all classed as secondary victims since they were not in the physical zone of danger.
For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria:
1. A close tie of love and affection to a primary victim
2. Witness the event with their own unaided senses
3. Proximity to the event or its immediate aftermath
4. The psychiatric injury must be caused by a shocking event
Lord Ackner: "'Shock', in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system."
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - causation - remoteness - multiple causes - foreseeability - primary victim
HELD D must take his victim as he finds him. The test in all cases was the same, namely whether D could reasonably foresee that his conduct would expose the C to risk of personal injury, whether physical or psychiatric.
C was not required to prove that nervous shock was reasonably foreseeable by D. It was irrelevant that D could not have foreseen that the claimant had an "eggshell personality". Psychiatric illness could be suffered as a consequence of an accident although not demonstrably attributable directly to the physical injury of the claimant.
Per Lord Lloyd: Using Alcock, identified claimant in this case as a primary victim. In the case of secondary victims, the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude and it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability. Primary victims are not subject to restrictions in place for secondary victims.
C won.
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - causation - remoteness - multiple causes - foreseeability - position of rescuers
HELD D owed officers under him a duty analogous to that of an employer to care for the safety of employees and to take reasonable steps to protect them from physical harm, but there was no extension of that duty to protect from psychiatric injury where there was no breach of the duty to protect from physical injury. It was not possible to classify C as primary victims, since none of them were at any time exposed to personal danger nor reasonably believed themselves to be so. Recognition of C's claims would significantly widen the established categories of cases for which damages could be recovered for pure psychiatric harm and to allow the claims would not fit easily with the decision in Alcock v Chief Constable of South Yorkshire [1992] to deny compensation to bereaved relatives of victims of the disaster who had not witnessed events at first hand or acted as rescuers. C lost
This case is often explained on the grounds of policy, in that it would be repugnant to allow the police officers to recover where relatives had been denied compensation.
Held: The claim failed on policy grounds. Whilst the claimant was a secondary victim and met the criteria set out by Lord Oliver in Alcock v Chief Constable of South Yorkshire, a primary victim does not owe a duty of care to a third party in circumstances where his self-inflicted injuries caused that third party psychiatric injury.
Cazalet J: “where a family member suffers psychiatric harm as a result of the self-inflicted injuries of another family member, the psychiatric illness in itself may well have an adverse effect upon family relationships which the law should be astute not to exacerbate by allowing litigation between those family members. In my judgment, to permit a cause of action for purely psychiatric injury in these circumstances would be potentially productive of acute family strife.”
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - proof of damage - problems with the primary / secondary victimdistinction
CoA: Wrong to aggregate the claims, C not liable. C not liable for psychiatric injury caused by fear of catching disease
HoL: wrong to aggregate, C not liable. C not liable to G.
ISSUES
Is there an actionable negligence claim where non-actionable claims are aggregated?
i. A non-actionable injury does not become actionable even if the anxiety causes a recognised psychiatric illness such as clinical depression. (Hoffmann LJ)
ii. Whether an injury is sufficiently serious to found a claim for compensation or too trivial to justify a remedy is a question of degree. The question then is how trivial must a claim be (Hoffmann LJ).
iii. Symptomless bodily changes with no foreseeable consequences, the risk of a disease which is not consequent upon those changes and anxiety about that risk are not, individually or collectively, damage giving rise to a cause of action. (Hoffmann LJ)
iv. The test of whether it is foreseeable that the employee of reasonable fortitude would suffer psychiatric injury depends upon the statistical evidence coupled with the test of a reasonable man as to whether the proven chain of cause and effect is reasonably foreseeable (Hoffmann LJ)
v. The answers to a test of foreseeability will vary according to, first, the precise description of what should have been foreseen and, secondly, the degree of probability which makes it foreseeable (Hoffmann LJ)
vi. It is not right to say that the law does not concern itself with matters of small moment or which are trivial in amount. (Hope LJ)
vii. Damages are given for injuries that cause harm, not for injuries that are harmless. Pleural plaques are a form of injury. But they are not harmful. (Hope LJ)
viii. Page v Smith does not apply for the psychiatric injury claim because G did not undergo a stressful situation and the causal chain between inhalation of asbestos and psychiatric injury much longer than the causal chain in Page v Smith. (Hope LJ)
ix. The aggregation theory fails not because the three elements, plaques, risk and anxiety, are in aggregation too trivial, but because none can sustain a tort action. (Scott LJ)
Last WordNought plus nought plus nought equals nought. It is not like an accumulation of scratches (Scott LJ)
HELD The appeals would be dismissed. Thedevelopment of pleural plaques, whether or not associated with the risk offuture disease and anxiety about the future, was not an actionable injury. Thesame was true even if the anxiety caused a recognised psychiatric illness suchas clinical depression.A claim in tort based on negligence wasincomplete without proof of damage. In principle, neither the risk of futureinjury nor anxiety at the prospect of future injury was actionable. They couldnot, therefore, be relied upon to create a cause of action which would nototherwise exist.
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