Psychiatric Injury

Front 1

Notable difficulties with claims

Back 1

Claims have risks of:

Disproportionate liability, floodgates of litigation, prolonged compensation and great complexity.

Classes of victims were identified, proximity is considered and it must be a recognized medical illness.

Front 2

Lord Steyn in White v Chief Constable of South Yorkshire (1999)

Back 2

“The law on recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify.”

Front 3

Recognised mental illness.

Back 3

e.g Reilly v Merseyside HA: insomenia and claustrophobia are not classed as psychiatric illnesses - consisting of fears, not injurious to normal life.

Grief and trauma can contribute to the worsening of medical condition: Vernon v Bosley

Front 4

Old law: “Kennedy Test”

Immediate fear for personal safety

Back 4

Dulieu v White (1901)

Horse and van crashed through a window near where the claimant was washing dishes. Her claim succeeded.

Extended to fear for others: Dooley v Cammell Lard & Co. feared for co-workers safety witnessing a load fall.

Front 5

Other considered tests:

Back 5

Area of Shock: Bourhill v Young

Claimant heard the accident and later witnessed the blood. But had not actually seen the accident herself - not in range of danger. Claim failed.

Outside Area of Impact: Kings v Phillips (1953) - A mother (C) witnessed a taxi back into a child 70 yards away. D did not foresee. Claim failed

Front 6

Fear for property: claimable

Back 6

Attia v British Gas (1987)

Defendant’s negligent in installing heating system, causing Claimant’s home to burn down. She suffered shock after witnessing the roaring blaze.

Front 7

Today: The Scope of Liability

Alcock v Chief Constable of South Yorkshire (1992)

Back 7

Police negligently allowed a mass of people to crowd into a stadium during a football game. 95 people were reportedly suffered crush injuries, some even dying. HoL had rejected all sorts of claims and laid down factors to accepting such claims.

Front 8

A distinction of victims: Secondary Victims

Back 8

HoL in Alcock laid down “control mechanisms” to combat the flood of litigation:

a. secondary victim to perceive the event with “unaided senses” (not through TVs or word of mouth)

b. shock must be “sudden” not “gradual”

c. if caused by witnessing injury or death to another, a close of tie of love and affection must be proven to that person.

d. reasonable foreseeable for someone of “normal fortitude” would suffer psychiatric injury from the shocking event.

Front 9

Distinction of Victims:

Primary Victim

Back 9

White v CC of South Yorkshire: those who have suffered physical injury including psychiatric

or, put in actual danger of physical injury and/or reasonably believes they are in such danger.

Front 10

Cases of Primary Victims:

1. Dulieu v White

Back 10

2. MacFarlane v EE Caledonia - witnessed the Piper Oil Rig disaster - belief of being in danger was found unreasonable.

3. Simmons v British Steel

Employer’s negligence caused injury. C suffered depressive illness - causing changed personality.

Front 11

For Primary Victims:

Foreseeability of psychiatric injury is irrelevant

Back 11

Simmons v British Steel (2004)

Employer’s negligence caused injury to C’s foot. Depressive illness and personality changed owed to C’s anger at D’s attitude rather than the actual accident.

Held: he was a primary victim. D’s lack of foreseeability was irrelevant.

Front 12

Page v Smith (Primary Victims)

Back 12

Need not actually suffer physical injury

Susceptibility to suffering psychiatric injury is irrelevant (unlike secondary victims)

Lloyd LJ - no reason to distinguish between the two types of damage. Especially if a direct result of D’s negligence.

Front 13

Secondary Victims: stringency

Back 13

Reasonable foreseeability - Page v Smith, McLoughin v O’Brian and Alcock

Proximity - close ties of love and affection / time and space

Sudden shock - not gradual

Front 14

Secondary Victims:

Proximity - close ties in love and affection

Back 14

Lloyd LJ - Alcock:

Ties must be such that psychiatry shock is reasonably expected from the relationship.

Some categories of familial ties are recognized - thus a presumption of love and affection arises (is rebuttable)

Distant friends and family must provide evidence of close ties.

Front 15

Proximity:

Closeness in time and space or immediately aftermarh

Back 15

Taylor v Somerset HA (1993)

C went to hospital to see husband’s body - was in disbelief after D (hospital) told C about husband’s death. She suffered shock when she say the body.

No sufficient proximity - not immediate aftermath. No violent evidence

Front 16

Immediate aftermath:

McLoughin v O’Brian

Back 16

An hour after a horrific accident involving her husband and two children, C was informed. One son died. C suffered shock upon seeing her husband and child in the hospital.

Held: It was immediate aftermath considering their bodies were not yet cleaned.

Front 17

Secondary victim:

Sudden and not gradual

Back 17

Walters v North Glamorgan NHS Trust

Over 36 hours, since C’s son’s epileptic fit to dying in her own arms, was held to be a “single horrifying event” - “sudden” is not construed literally.

Sion v Hampstead HA

Witnessing son die over the period of 2 weeks was not sudden - but an example of gradual. Enough time for C to come to accept

Front 18

Issues with rescuers:

Back 18

Chadwick v British Railway Board

Rescuer was treated as a primary victim for being involved in the accident. Claimant’s small stature allowed him to crawl between the wreck and administer injections. Later suffered depressive illness.

Front 19

Chadwick ruling criticized:

Back 19

Alcock and White cases, Police allegedly suffered PTSD when helping with the Hillsborough Incident. Held, police should have developed a tolerance in practice + unfair to those who’s relatives died (why should police claim while relatives could not?)

Front 20

Chadwick ruling criticized:

Back 20

Alcock and White cases, Police allegedly suffered PTSD when helping with the Hillsborough Incident. Held, police should have developed a tolerance in practice + unfair to those who’s relatives died (why should police claim while relatives could not?)

Front 21

Rescuers only primary victims if they actually exposed to the dangers.

Back 21

No reason to have rescuers treated with special rules

Front 22

Tan v East London and City Health Authority

Back 22

The requirement of “perception” would if the claimant only knew of the shocking event after being told by a thirdparty.

Claim failed.