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19 Cards in this Set
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Duty of Care V - Exceptional Duty of Care Scenarios: Psychiatric Harm
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ActionableDamage
•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 |
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Victoria RailwayCommissioners v Coultas (1888) duty of care - psychiatric harm - background
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FACTS The appellant’s gatekeeper had negligently invited the plaintiffs to cross a railway line as a train approached. There was no collision, but the plaintiff sought damages for physical and mental injuries from shock.
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.” |
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Dulieu v White [1901]
duty of care - psychiatric harm - background |
FACTS The claimant was pregnant and behind the bar in her husband’s public house. A horse and cart crashed into the pub. The claimant was not physically injured but feared for her safety and suffered shock. She gave birth prematurely nine days later and the child suffered developmental problems.
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 |
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Hambrook v Stokes [1925]
duty of care - psychiatric harm - background |
FACTS A mother allowed her children to walk by themselves, a little way in front of her. The defendant’s employee negligently secured a lorry, therefore it rolled down a hill to the corner where the children were walking. She feared that her children may have been injured, and coupled with a bystander telling her a child had been injured, she suffered mental 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 |
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McLoughlin v O’Brian [1983]
duty of care - psychiatric harm - background |
The House of Lords extended liability for nervous shock to all cases where it was reasonably foreseeable that the plaintiff would suffer such injury, irrespective of any limitations of time and space.
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. |
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Alcock v ChiefConstable of South Yorkshire [1992]
duty of care - psychiatric harm - current duty of care test: the primary / secondaryvictim distinction |
FACTS This case arose from the disaster that occurred at Hillsborough football stadium in Sheffield in the FA cup semi-final match between Liverpool and Nottingham Forest in 1989. South Yorkshire Police had been responsible for crowd control at the football match and had been negligent in directing an excessively large number of spectators to one end of the stadium which resulted in the fatal crush in which 95 people were killed and over 400 were physically injured. The scenes were broadcast live on television and were also repeated on news broadcasts. Sixteen claims were brought against the defendant for nervous shock resulting in psychiatric injury. At trial ten of the claims were successful. The defendant appealed against the findings in nine and the unsuccessful claimants appealed. The Court of Appeal found for the defendants in all of the claims. Ten appeals were made to the House of Lords. These included claims made by brothers, sisters, parents, a grand-parent and a fiancé. Two of the claimants had been at the ground but in a different area. Some had seen the events unfold on the television, some had heard about the events in other ways such as seeing it on television. Some had identified bodies at the makeshift mortuary.
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." |
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Page v Smith [1996]
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - causation - remoteness - multiple causes - foreseeability - primary victim |
FACTS D's car collided with C's car. C was physically unhurt but the accident caused him to suffer onset of myalgic encephalomyetis (ME) from which he had suffered for 20 years but which was then in remission. ME became chronic and permanent and he was unable to return to employment.
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. |
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White v Chief Constable of South Yorkshire [1999]
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - causation - remoteness - multiple causes - foreseeability - position of rescuers |
FACTS D the Chief Constable and employer of 4 officers, C who had all suffered post traumatic stress disorder as a result of their involvement in the aftermath of the Hillsborough Football Stadium disaster. D admitted that the disaster had been caused by police negligence. Whilst Alcock, involved claims by relatives, this case involved claims for psychiatric injury from police officers who were on duty that day . Their claims differ from those in Alcock, in that they based their claims on the grounds that as employees, the defendant owed them a duty of care not to cause them psychiatric injury as a result of negligence, alternatively they claim as rescuers, which they argued promoted them to primary victims as oppose to secondary victims.
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. |
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Greatorex v Greatorex[2000]
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - causation - remoteness - multiple causes - foreseeability - position of rescuers |
FACTS John Greatorex had been drinking with his friend Haydon Pope. John then, with Haydon’s permission, drove Haydon’s car, and Haydon was a passenger. John drove the car recklessly and was involved in a head on collision with another vehicle. Haydon was uninjured but John suffered a serious head injury and was unconscious trapped in his car for about an hour. The emergency services were called and the claimant Christopher Greatorex, John’s father, a leading fire officer, arrived on the scene. Christopher attended to his son and then suffered long term severe post-traumatic stress disorder as a result of the incident. The claimant brought an action against his son for the psychiatric injury caused by his negligence.
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.” |
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Rothwell v Chemical& Insulating Co [2007]
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - proof of damage - problems with the primary / secondary victimdistinction |
FACTS R and others alleged that C had negligently exposed them to asbestos dust with the foreseeable consequences that they had developed pleural plaques, were at risk of developing one or more long-term asbestos-related diseases, and now suffered anxiety at that prospect.G also added a claim for damages for depression caused by his development of pleural plaguesNone of the claims could on their own establish a cause of actionHC: the 3 claims put together, there was cause of action, C liable
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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W v Essex CountyCouncil [2001]
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - problems withthe primary / secondary victim distinction |
FACTS D, the council placed a known sex offender with foster parents C. C’s children were abused. C made it clear that they were anxious not to put their children at risk by having a known sex abuser in their home, the social worker and D knew that and also knew that the boy placed had already committed an act or acts of sex abuse. The risk was obvious and the abuse happened.
Held: It was plainly arguable that there was a duty of care owed to the parents and a breach of that duty by the defendants. C won. The categorisation of those claiming to be included as either primary or secondary victims was not conclusive. It depended on the facts of each case and there was insufficient information at this stage to rule that these circumstances were outside the range of psychiatric injury currently recognised by the law. The pleadings indicated that the injury was more than "acute grief" but a detailed investigation of the facts was required to ascertain whether the necessary temporal and spatial limitations were satisfied. Lord Slynn stated the law regarding psychiatric injury was still developing and the categories of primary victims are not closed. It was arguable that the claimants may be primary victims based on a feeling of responsibility in unwittingly bringing the abuser in to the house. Furthermore the concept of the ’immediate aftermath of the incident’ has to be assessed on the particular factual situation. Therefore the issues should go to trial. |
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Farrell v Avon HealthAuthority [2001]
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - problems with the primary / secondary victim distinction |
FACTS D (maternity hospital) wrongly told C his baby had died, C suffered psychiatric harm. C & E went on holiday together and had sexual intercourse once. There was no romance and the two went their separate ways. The baby was born prematurely C was very excited and immediately went to see the baby. He was told that the baby had died. The dead baby was brought to him whom he then handled. After about 20 minutes, the nurses returned and took the baby away, saying that his baby was still alive and that there had been a mistake. C, who had problems with alcoholism and drug abuse, developed post traumatic stress disorder.
Held: The claimant was a primary victim and could recover for psychiatric injury although he had neither sustained nor was it reasonably foreseeable that he would sustain any physical injury. It was foreseeable that there was a real risk of him suffering a recognised psychiatric disorder as a result of the incident. A claimant would clearly be a primary victim if he was physically involved in the incident itself so it was sufficient for the claimant to show that the defendant ought to have had psychiatric injury in its contemplation. If the foreseeability test was then fulfilled the defendant had to take the claimant as it found him. It followed that the test to be applied was whether the defendant ought reasonably to have foreseen that its conduct would expose the claimant to the risk of a recognised psychiatric disorder on the basis of facts known to the defendant at the relevant time, that risk being a real risk not merely a possibility. C was awarded £10,000. |
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Hatton v Sutherland [2002]
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - problems with the primary / secondary victim distinction |
A local authority was in breach of its duty to its employee to take reasonable care to avoid injuring his health where it had become aware that his difficulties at work were having an adverse effect on his mental health, but had taken no steps to help him.
Held, allowing the appeal (Lord Scott dissenting), that the issue of the breach of the local authority's duty of care to B was borderline. The trial judge, who saw and heard the witnesses, had concluded that the local authority had been in breach and there was insufficient reason for the Court of Appeal to set aside that finding. The test was whether the local authority had fallen below the standard properly to be expected of a reasonable and prudent employer taking positive steps for the safety of his workers in the light of what he knew or ought to have known. HALE LJ: "Allof this points to there being a single test: whether a harmful reaction to thepressures of the workplace is reasonably foreseeable in the individual employeeconcerned. Such a reaction will have two components: (1) an injury to health;which (2) is attributable to stress at work . The answer to the foreseeabilityquestion will therefore depend upon the inter-relationship between theparticular characteristics of the employee concerned and the particular demandswhich the employer casts upon him." |
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Barber v Somerset CC [2004] duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - problems with the primary / secondary victim distinction - overworked schoolteacher – duty owed when problem known or should have been known
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FACTS D the council which employed C a 52 year old schoolteacher as head of mathematics in a comprehensive school. He worked long hours about which he complained of ‘work overload’. Following a period of sickness because he was ‘overstressed/depression’ he suffered a mental breakdown at school.
Held: The school owed C a duty of care, and their breach of that caused the claimant’s nervous breakdown. The employer’s duty to take some action arose when the claimant saw separately each member of the school’s senior management team. It continued so long as nothing was done to help the claimant. The senior management team should have made inquiries about his problems and seen what they could have done to ease them, instead of brushing him off unsympathetically or sympathising but simply telling him to prioritise his work. Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] applied. C won For the purpose of deciding whether an employer should have taken positive steps to safeguard an employee against psychiatric or physical injury or illness arising from stress at work, the threshold question was whether the kind of harm to the particular employee was reasonably foreseeable and not whether psychiatric injury was foreseeable in a person of ordinary fortitude. The employer was entitled to assume, unless he was made aware of a particular problem or vulnerability, that an employee could cope with the normal pressures of his job. |
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Hartman v South EssexMental Health & Community Care Trust [2005]
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - problems with the primary / secondary victim distinction |
“ …what was said in Hatton was not intended to cover all the infinitely variable facts that are likely to arise in stress at work cases. The general principles are to be found in Hatton but we emphasise they need care in their application to the particular facts under consideration.”
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Daw v Intel Corporation [2007]
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - problems with the primary / secondary victim distinction |
An employer had been negligent in failing to take steps to obviate the risk of an employee, who complained of being overworked and stressed, from suffering a breakdown. The damages for future loss of earnings had been assessed appropriately.
HELD The judge had been fully entitled to hold that D's stress and ill-health had been caused by a failure of management and that the injury had been foreseeable enough by early March 2001 to require immediate action. The essential background to her claim was that she had occupied an important administrative position in a very large organisation for many years. She was loyal and regarded by C as of the highest calibre, with a capacity for hard work. She had wished to remain in her employment with C and she had had prospects of promotion. She did not readily complain about volume of work, or take time off, or tackle her problems other than by consulting those who could do something about them. In the context of her frequent complaints of overwork and conflicting pressures upon her, the judge had been entitled to find that urgent action was required immediately from March 2001. On the facts, D had been persuaded to stay in her job by unfulfilled assurances that assistance would be provided, and the fact that she did not give up her job when the stresses grew did not eliminate the duty of care owed to her. |
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Butchart v Home Office [2006]
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - problems with the primary / secondary victim distinction |
Where the Home Office knew or ought to have known that a remand prisoner was vulnerable to psychiatric harm, the duty of care which was owed to that prisoner by the Home Office included a duty to take reasonable steps to minimise the risk of psychiatric harm.
“In the present case there is no doubt that the defendant owed a duty of care to those in its custody.… the defendant knew or ought to have known that the claimant was a prisoner vulnerable to psychiatric harm. In those circumstances it seems to me to be inevitable that the duty of care which the defendant owed to the claimant included a duty to take reasonable steps to minimise the risk of psychiatric harm.” FACTS B claimed that he had been, to the knowledge of the prison authorities, for whom the Home Office was responsible, psychiatrically vulnerable in that he had been in a depressed and unstable condition, threatening self harm and at one time suicidal. He alleged that, despite such knowledge, the authorities had placed him in a cell with another remand prisoner known to be a suicide risk who did in fact commit suicide. He claimed to have suffered psychiatric harm as a result of being placed in the same cell as that prisoner, witnessing his suicide, being blamed by a prison officer for the suicide and subsequently being placed in a cell with another suicidal prisoner. |
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Corr v IBC Vehicles [2008]
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - problems with the primary / secondary victim distinction |
In the circumstances loss attributable to the death by suicide of her late husband was recoverable by his dependent widow under the Fatal Accidents Act 1976 s.1 in an action against his former employer, and her claim was not barred by principles of causation, remoteness and foreseeability.
FACTS The claimant’s husband had committed suicide. She sought damages for financial loss from his former employers under the 1976 Act. He had suffered a severe and debilitating injury working for them leading to his depression and suicide 6 after the accident. The employers said that these damages were too remote. |
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Attia v British Gas [1988]
duty of care - psychiatric harm - current duty of care test: the primary / secondary victim distinction - problems with the primary / secondary victim distinction |
There is no reason in principle why damages for nervous shock should not be recovered after witnessing property damage. Per curiam: Questions of far-reaching principle such as recoverability of damages on grounds of public policy are not suitable to be determined as preliminary issues on assumed facts.
FACTS A engaged B G Co to install central heating in her home and returned to find the loft on fire. The house and contents were extensively damaged, and the property claim was settled, but A also claimed for nervous shock. A preliminary issue arose as to whether a claim lay for nervous shock caused by witnessing property damage, rather than personal injury. The decision in Attia came before that of Alcock v Chief Constable of South Yorkshire, where close relatives and witnesses of large scale physical harm were barred from recovery for subsequent psychiatric harm. It therefore remains to be seen – though it seems unlikely – whether in light of this decision, this principle would be reaffirmed. |
