Tort - Negligent Infliction Of Psychiatric Damage

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Introduction

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Psychiatric damage = an injury to one’s mental state; not a scientifically accurate term, but better than “nervous shock”.

Psychiatric damage consequential to a physical personal injury is readily recoverable, and unproblematic.

Mental suffering from grief upon the death of a family member due to tortious conduct is recoverable under CLA 1961. Actions in this area are derivative; no tort is necessarily committed against the relative, and yet they can claim.

Psychiatric damage unaccompanied by physical injury to the person may also be the subject of a negligence action involving a duty of care between the Pl (causer of damage) and Def (victim of psychiatric damage).

The damage here may be physical (e.g. heart attack) or purely psychological (e.g. post-traumatic stress disorder, depression).

For such cases, specialised principles have been developed; the focus of debate has been the duty of care.

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Judicial reluctance

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Non-consequential psychiatric damage was initially treated with caution by the courts, for three reasons:

i. the possibility of false claims;

ii. the difficulty in assessing the level of damage;

iii. floodgates.

Developments in medical science mean that the first two grounds have dissipated significantly and are now on a par with those issues across the field of all torts.

By contrast, there is still a fear of an undue level of litigation; this focus the main corpus of case law in this area.

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‘Fright’

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Early case law showed that liability would attach where the plaintiff was put in fear of physical injury but not actually injured – and suffered through the operation of “fright”.

Consequence: where fear of physical injury induces either

(a) physical damage – deterioration of health, or
(b) mental damage the Pl’s suffering qualifies as injury in the legal sense.

Quill points out that this is unproblematic, because Byrne involves physical damage anyway, and Bell involves a mental injury to somebody within the scope of duty.

The real difficulty comes where somebody unlikely to ever be physically affected by the negligent actions of the Def – e.g. witnesses to an accident, rescuers, medical personnel, friends and family. This is the focus of the law’s development.

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Byrne v. Southern & Western Railway (1884)

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Def’s train negligently collided with the Pl’s house; no physical injury but the mental impact led to deterioration in health; Court found for the Pl.

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Bell v. Great Northern Railway (1890)

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Pl was a passenger in a carriage which detached and slid backward down a hill; lack of physical injury, but mental injury; Court found for the Pl.

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Initial extension of the doctrine

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Hambrook v. Stokes (1925): extended the doctrine to parents fearing for the safety of their children, provided they perceived (i.e. saw) the injury or near misses with their own unaided senses.

Dooley v. Cammell Laird (1951): extended the doctrine to bystanders of an accident, provided it was sufficiently serious, and provided the Def could reasonably foresee the shock.

Various cases then extended the doctrine to relatives and rescuers who witnessed the aftermath of a serious accident.

These developments led the courts to two difficult questions:

i. How far removed must a sighting be to no longer constitue “immediate aftermath”?

ii. Who is a reasonably foreseeable witness? Siblings, friends, strangers?

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Hambrook v. Stokes (1925)

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Extended the doctrine to parents fearing for the safety of their children, provided they perceived (i.e. saw) the injury or near misses with their own unaided senses.

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Dooley v. Cammell Laird (1951)

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Extended the doctrine to bystanders of an accident, provided it was sufficiently serious, and provided the Def could reasonably foresee the shock.

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English case law

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In addressing these two questions, the critical issue is whether the normal test for negligence should apply, or whether pyschiatric damage involves other considerations.

Initially, Bridge L.J.’s approach in McLoughlin -v- O'Brien (1983) was dominant, with various cases being won by the Pl where he could draw a chain of causation from physical injury to psychiatric injury, and show reasonable foreseeability at every stage of the chain. In all of these cases, the Pls were outside the scope of the immediate aftermath, but nonetheless succeeded.

Subsequently, however, Wilberforce L.J.’s approach became dominant. The turning point was the case of Alcock -v- Chief Constable for South Yorkshire (1992), towards a more restrictive, category based approach.

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McLoughlin v. O’Brian (1983)

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Def’s negligent driving physically injured a father and daughter; the wife came to hospital shortly afterward and suffered severe psychological injuries.

HL held unanimously for the Pl, but there was disagreement as to the basis:

(a) Bridge L.J. held that general negligence principles sufficed in such cases, looking at issues such as the degree of relationship to the victims and circumstances surrounding the Pl’s perception of the incident;

(b) Wilberforce L.J. held that this area needed specific rules as to matters such as relationship of degree and perception of the incident.

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The Kelly Criteria - Aftermath cases: close personal relationship

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 The case leaves the position of rescuers unclear; just because they are not mentioned does not mean that they will not be able to claim under this principle – a more precise definition of “close personal relationship” is needed.

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The Kelly Criteria - No public policy limits on recovery

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 The English decision of Greatorex v. Greatorex (2000) would not satisfy the sixth principle, because Cazalet J. refused the Pl’s claim for damages from his Def son (who had injured himself in a car accident, the scene of which the father then attended qua fire officer) on the basis of policy concerns: recovery would interfere with the son’s right of self-determination. This has been heavily criticised because the incident was an accident, not an intentional expression of the son’s autonomy.

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The law post-Kelly

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 Fletcher v. Commissioners of Public Works (2003) is crucial, because the SC held that different categories of cases (outside of aftermath cases) are not necessarily governed by the Kelly principles.

NB: in Fletcher, both HC and SC accepted proximity (employer-employee relationship), and foreseeability, and clearly reject the claim on policy grounds. The SC suggests that policy should be the tool in constraining this class of liability.

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Curran v. Cadbury (2000)

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Pl suffered psychiatric illness based on unfounded beliefs that she had seriously injured a colleague because of a negligently-installed system of work whereby she could turn on a machine while a maintenance worker was inside; she recovered damages.

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Fletcher v. Commissioners of Public Works (2003)

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Asbestos exposure.Pl feared the development of serious illness due his employer’s negligence; SC found the fear irrational, because the Pl had received medical advice to the contrary.

The SC held that different categories of cases (outside of aftermath cases) are not necessarily governed by the Kelly principles.

SC denied recovery; the implication was that a reasonable fear of illness would have given rise to recovery.

NB: in Fletcher, both HC and SC accepted proximity (employer-employee relationship), and foreseeability, and clearly reject the claim on policy grounds. The SC suggests that policy should be the tool in constraining this class of liability.

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McHugh v. Minister for Defence (2000)

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Pl soldier was traumatised by a training incident and sights during service in Lebanon; his superiors were not found negligent in exposing him to these, but the law was extended to the extent that they were found negligent for failing to refer to the Pl for medical assistance once it became clear that he was unwell.

Where Geoghegan J. held that the Kelly principles were developed in the case of a “secondary victim”, and not applicable in the present case.

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Annetts v. Australian Stations (2002)

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Australian authority, rejects "shock doctrine": the Pls’ 16-year-old son went to work at a remote cattle station; they were assured he would be well supervised; he went missing in December 1986 and his vehicle was found, followed later that day by his body, in April 1987; the boy had died from dehydration, exhaustion and hypothermia. Despite the lack of sudden shock in this fact scenario, the HC found for the Pls.

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Alcock v. Chief Constable of South Yorkshire (1992)

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The case arose as a result of the Hillsborough disaster, where 96 people died and several hundred were injured in an overcrowded stadium.

Opting for Wilberforce L.J.’s approach of specific rules for this area of negligence, the HL set out the following rules:

(a) spousal and parent-child relationships give rise to a rebuttable presumption of close tie sufficient to bring the Pl into the scope of duty;

(b) other family members and friends have to adduce evidence of a close tie of love and affection;

(c) means of perception have to be directly of the event or its immediate aftermath – third party communication is insufficient and media broadcasts are insufficient unless they depict the suffering of a recognisable individual;

(d) identification at a more 8 hours later is insufficiently proximate;

(e) there had to be a “shock”, and not a gradual onset of mental damage.

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White v. Chief Constable of South Yorkshire (1999)

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This decision further refines English law. There are two categories of victims of nervous shock:

(a) Primary – those who are or perceive that they are in the area of actual danger, and those who because of the Def’s negligence believe themselves to have been involved in the death or injury of a person. The duty to these people is based on reasonable foreseeability of psychiatric injury.

(b) Secondary – non-participants, i.e. witnesses with no fear for their own safety and those who come in the aftermath. The duty to these people is reasonably foreseeability of psychiatric injury and proximity, using the Alcock criteria.

NB: Rescuers were held not to form a discrete category; they are treated like any other party.

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W v. Essex County Conucil (1999)

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Pl = parents whose child had been abused by a foster child placed with them by the council sought relief; the Council argued that they did not have a cause of action.

HL founds for plaintiff, holding that the categories of primary and secondary victims set out in White were not closed.

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Kelly v. Hennessy (1995)

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Facts: Pl was informed by telephone of injuries to her husband and daughters; she went into shock and became ill; this continued during the journey to the hospital and when she witnessed the victims.

Decision: halfway house approach – shifted the focus toward proximity but rejected the specific policy constraints of English jurisprudence. Denham J. moved away from her HC position in Mullaly, focusing on proximity rather than foreseeability to establish the necessary degree of relationship. Hamilton C.J. set out six principles to ascertain whether a Pl comes within the scope of the duty of care:

i. Pl must suffer recognised psychiatric illness;
ii. illness must arise by way of “shock”;
iii. foreseeability as to psychiatric injury (foreseeable personal injury insufficient);
iv. illness must result from the perception of actual injury, or a risk of injury to oneself or another;
v. if harm results from perception of the aftermath, there must be a close personal relationship;
vi. there are no public policy limits provided these conditions are fulfilled

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Mullaly v. Bus Éireann (1992)

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Similar facts to McLoughlin – a woman had to go to two separate hospitals to find her husband and children, who had been victims of a bus crash; in one hospital, the administration was overwhelmed by the accident and she herself had to search through many victims to find her son.

HC found for the Pl. Denham J. applied the Bridge test, looking at the reasonable foreseeability of each link in the causational chain.

Denham J. also considered much evidence as to the actual damage complained of, and set out 5 criteria for proving post-traumatic stress:

(i) exposure to trauma outside of the range of usual human experience;
(ii) re-experiencing the trauma through memories/nightmares/flashbacks;
(iii) avoidance of stimuli related to the trauma, numbing of responsiveness, amnesia, dimished interest, estrangement from others;
(iv) sleep disturbance, anger outbursts, concentration difficulties etc.;
(v) duration of the disturbance = at least one month.

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The Kelly Criteria - General

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Kelly was an aftermath case, yet five of the six principles are not related specifically to aftermath cases; this suggests that the other five are generally applicable to cases of psychiatric damage.

Note that this notion has been seriously weakened by Fletcher v. Commissioners of Public Works (2003), where Geoghegan J. held that the Kelly principles were developed in the case of a “secondary victim”, and not applicable in the present case.

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The Kelly Criteria - Recognised psychiatric illness

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This is not a new principle, and is universally accepted. Denham J. in Mullally provides guidance here.

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The Kelly Criteria - “Shock”

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This requirement appears to exclude recovery in cases where continuing sense of loss or the psychological wearing down of a spouse occur.

The shock requirement has been rejected in a number of UK and South African decisions.

Australia also dispensed with this requirement in Annetts v. Australian Stations (2002): the Pls’ 16-year-old son went to work at a remote cattle station; they were assured he would be well supervised; he went missing in December 1986 and his vehicle was found, followed later that day by his body, in April 1987; the boy had died from dehydration, exhaustion and hypothermia. Despite the lack of sudden shock in this fact scenario, the HC found for the Pls.

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The Kelly Criteria - Psychiatric injury foreseeable

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 The Def needs to reasonably foresee that a person of normal psychiatric fortitude will undergo mental damage upon seeing the fruits of his negligence.
 This depends heavily on the factual circumstances; the case law involving aftermath has always involved seriously distressing images, which would pass this test.

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The Kelly Criteria - Perception of personal injury or of the risk thereof

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 Hamilton C.J.’s judgment does not set exact criteria for “perception”, but in Kelly, both HC and SC focused on the fact that the Pl had witnessed the scene at the hospital.
This suggests that merely being informed of an incident does not suffice.