Chapter Psychiatric Injury

Note to students: The questions on this topic have been divided into essay and problem
questions. Questions are from May/June only.

Essay Questions

2017 May/June

The recovery of damages for nervous shock is governed by many factors including policy
considerations.

Describe these factors and evaluate the role played by policy considerations.

2021 May/June

Describe the rules governing nervous shock and assess the fairness of these rules in relation to
rescuers and bystanders.

2017 May/June Answer Outline:

Psychiatric injury affects the mind rather than the body and traditionally there has been
reluctance on the part of the courts to allow claimants to recover for it. This stemmed from the
fact that the symptoms of an injury that affects the mind could easily be imitated. In Victoria
Railway Commissioners v Coultas a claim for psychiatric harm was refused because there was
insufficient understanding of the harm and no evidence of actual physical injury. Moreover it
was felt that allowing such a claim to succeed would open up a wide range of imaginary claims.

Even though such claims are allowed now the courts have decided that there should be limits
on claims and the concept of duty of care is one way to impose those limits. The psychiatric
harm must be of a type that is medically recognized such as clinical depression or PTSD. It does
not include ordinary human emotions such as grief or being upset. In Hinz v Berry the claimant
was able to claim for morbid depression but by contrast in Reilly v Merseyside Regional Health
Authority the symptoms in question were not recognized psychiatric harm.

Where both ordinary human emotion and psychiatric illness are present the court takes the
approach used in Vernon v Bosely where the claimant was allowed to recover as an abnormal
degree of grief could lead to psychiatric harm.

Another limitation is that the harm must come from a single shocking event. In Sion v
Hampstead Health Authoritya claimant could not recover after having watched his son die
slowly as a 14 day period could not be classified as a single shocking event. That being said
however, in North Glamorgan NHS Trust v Walters the claimant recovered as the Court of
Appeal stated that a horrifying event could be made up of a series of events. It is also possible
to suffer psychiatric harm due to having witnessed damage to property as in Attia v British Gas.

The law recognizes two categories of victims: a primary victim is a person present at the scene
of the incident who is either harmed or at risk of being harmed. A secondary victim is someone
who is a witness to the injury caused to others but is not put in danger of physical injury to
himself.

With regard to primary victims, the duty to care to them was first recognized in Dulieu v White
where the claimant feared for her own safety and suffered a miscarriage. The thin skull rule
applies to primary victims as illustrated by the case of Page v Smith where the claimant was
successfully able to claim for the recurrence of a psychiatric injury after being involved in a car
accident where he was not physically hurt.

Primary victims also include individuals at risk of being harmed but there must be some basis
for the fear. In McFarlane v Wilkinson the court said that the fear must be reasonable given the
nature of the risk and the claimant’s situation. The claimant in this case was not allowed to
recover because the boat he was in was clearly in no danger of being affected by the fire on the
oil rig.

Secondary victims suffer harm as a result of either having seen or heard the event itself or its
immediate aftermath. This was established in Hambrook v Stokes but it is important that the
harm suffered must be reasonably foreseeable in a person of ordinary fortitude or composure.
The claimant in Bourhill v Young was not allowed to recover as her injuries were not
foreseeable.

White v Chief Constable of South Yorkshire stated that the same set of rules would apply to the
different categories of secondary victims and these rules have been developed in the two key
cases of Mcloughlin v O’Brian and Alcock v Chief Constable of South Yorkshire.

In Mcloughlin v O’ Brian the claimant was not with her family at the time of their accident but
was told about it immediately afterwards and she saw her family in the state they were in right
after the accident. She was able to claim for psychiatric injury as she had witnessed the
immediate aftermath of the accident. The decision referred to policy based factors like the
claimant’s relationship to the primary victims, her proximity to the accident and the shock
induced by what she saw that needed to be taken into account. It was this second approach
that was further explained in Alcock. There were two groups of people that wanted to sue the
police for psychiatric harm as a result of the Hillborough stadium disaster: relatives and friends
of those who were injured or killed and police officers who were on duty at the ground. The
latter category was dealt with in White.
The claimant’s legal advisers argued that the test was that of reasonable foreseeability but the
court stated that the giving of damages should be strictly controlled and Lord Oliver set out four
control mechanisms to restrict claims: it must be shown that the harm was reasonably
foreseeable, the nature and cause of the psychiatric injury, that there must be a close tie of love
and affection to the primary victims, there should be proximity in time and space to the
accident and the secondary victim witnesses the accident or its immediate aftermath with their
unaided senses.

These controls were policy driven and reasons were given for why psychiatric harm was being
treated as a special area of the law. To begin with identifying categories of psychiatric harm is
based on complex expert evidence. Moreover there is the risk that the possibility of awarding
compensation prevents the claimant’s condition from improving. The third reason is the
floodgates argument which is that broadening the law would widen the scope of potential
claimants and lastly potential defendants would be exposed to a risk of liability that would be
disproportionate to the negligent action.

Under this test the secondary victim will have to prove that the psychiatric damage amounts to
a recognized psychiatric illness brought on by a sudden and unexpected shock caused by a
horrifying event which has already been discussed above.

Secondly the claimant will have to prove that they fall within a class of people that the law
allows to claim compensation. With regard to relatives and friend, the House of Lords
emphasized that the claimant would not only have to prove that the type of relationship was
close but also that the relationship was as a matter of fact close.

With regard to proximity the claimant has to show that he was close to the shocking event both
in time and place meaning that they must either be present at the scene of the accident or its
immediate aftermath. Following McLoughlin immediate aftermath is considered two hours and
in Taylor v Novo the Court of Appeal held that the law could not be extended to allow damages
from an event three weeks after the accident. Moreover seeing it on tv or hearing about it
would not be enough; the claimant must directly witness the event or its aftermath. In Tan v
East London and City Health Authority being informed of a still birth over the phone prevented
the claim from succeeding.

As has been discussed, this area of the law is policy driven particularly with regard to the flood
gates argument. This was a concern as far back as Victoria Railway Commissioners where the
claim was rejected on account of symptoms being capable of being mimicked. To prevent this
courts have ensured that the claimant must prove that the harm is a recognized medical
condition.
Secondary victims are not treated very favourably for fear of opening the floodgates. Moreover
there is also the issue of distributive justice. Most claims for compensation are paid by
insurance companies who then distribute their losses onto other policy holders.

Both Parliament and the courts have considered possible reform in this area. In 1998 the Law
Commission report found the law dealing with secondary victims to be too restrictive. It was felt
that there should be a close tie between the primary and secondary victim but that more
should not be required. The Commission also considered that proximity and sudden shock
should also be removed but to date there has been no sign of these changes coming about.

Problem Questions

2015 May/June

Nadia works with Jamal delivering groceries by van for a local supermarket. At the end of one
day, after their final delivery, Jamal is in a hurry to return the van. He overtakes a vehicle on a
corner and collides with an oncoming car. Jamal suffers cuts and bruises but Nadia has multiple
injuries and loses a lot of blood.

Mary sees the accident and calls an ambulance. She helps Jamal from the van and stays with
Nadia until the ambulance arrives. Mary is deeply traumatised by the event.

Lynn, Nadia’s mother, is informed of the accident by telephone and arrives at the hospital as
Nadia is brought in. Nadia does eventually recover from her injuries, but Lynn cannot return to
work for six months after the incident as she suffers from anxiety and is unable to sleep.

Advise Nadia, Mary and Lynn as to the likely success of any actions in negligence arising from
this incident.

2018 May/June

Pierre, a self-employed taxi driver, was driving through Barchester town centre when he
suddenly lost consciousness. His taxi hit another car and caused serious injury to the driver,
Marie.

Pierre had an undiagnosed heart condition, which had caused the loss of consciousness. He had
been experiencing minor chest pains for a few weeks but did not consult a doctor as he was
worried about losing his taxi licence.

Yves witnessed the entire incident from his office across the road and is claiming that this has
resulted in the recurrence of depression which he had experienced many years before.

Advise Pierre as to his potential liability to Marie and Yves.

2020 May/June

Charles takes his 10‑year‑old son, Harry, to Thrillseekers theme park. The park has recently
opened a new ride and advertises it as the biggest of its kind and restricted to riders aged 12
and over.

When they are getting on the ride, the operator, William, asks Harry’s age. Charles says that
Harry is 12 years old. William allows them on the ride but does not check that the safety
harnesses have been secured once they are seated.

During the ride, Harry’s harness suddenly opens and he is thrown to the ground. He sustains
serious injuries. Jane, a nurse, also visiting the park, rushes to assist and treats Harry until the
ambulance arrives. Charles calls his wife, Fiona, as he accompanies Harry in the ambulance,
telling her that their son is badly injured. Fiona arrives just as Harry is brought in to the hospital.

Jane is severely traumatised by the incident and is unable to work. Harry has to be treated in
hospital for several months and Fiona has been diagnosed with depression.

Advise the parties as to their rights and responsibilities in negligence.

2022 May/June

Jim is late for work and driving at speed when his car collides with a taxi, driven by Shannon.
She is not wearing a seatbelt and is seriously injured. Jim is trapped in his car. Emma is a
self-employed hairdresser. Although Emma does not witness the accident, it happens outside
her shop. She calls the emergency services and stays with Jim until they arrive. She is very
distressed as the injuries of both Shannon and Jim appear to be life threatening. Shannon and
Jim are taken to hospital and following treatment both make a full recovery. Since the incident,
Emma has been unable to work due to anxiety and stress. She eventually has no choice but to
close her business. Advise the parties as to their rights, responsibilities and remedies in relation
to negligence.

2015 May/June Answer Outline

This question requires a discussion of the rules relating to negligence along with assessing
whether there would be liability in nervous shock.

As far as negligence is concerned, this is a tort that allows a claim where a defendant has
breached a legal duty to take care and as a result of that breach damage or injury has been
caused. The three essential elements of negligence are establishing there is a duty of care,
establishing that the duty has been breached and damage has been caused as a result of it.
As far as the first element is concerned, a duty of care is established where the three stage test
laid down by the House of Lords in Caparo v Dickman is satisfied which is: it was reasonably
forseeable that the defendant’s failure to take care could cause damage to the claimant, that
there is a relationship of proximity between the parties and that it is fair, just and reasonable
that a duty is recognized.

As far as reasonable foreseeability is concerned, the defendant must have foreseen some
damage to the claimant at the time of the careless act. The test for foreseeability is based on
what a reasonable person foresaw and not what the defendant foresaw. This is evident on the
facts as Jamal is driving carelessly and harm to both the driver and the passenger is foreseeable.
Proximity can also be established between the two because they are both travelling in the same
vehicle which is being driven by Jamal. As far as the third element is concerned, the court will
take into account wider issues such as policy considerations when deciding the fairness of
imposing a duty on the defendant. On the facts there seems no reason not to impose a duty on
Jamal vis vis Nadia and therefore it can be assumed that a duty of care will be established.

The second element of the tort of negligence is that of breach of duty. This element is
concerned with the standard of care that the defendant has to meet and whether the activity of
the defendant has fallen below it. On the facts Jamal is driving the van carelessly and is not
meeting the standards of a reasonable car driver. In Nettleship v Weston the court held that the
learner driver had to meet the standard of an average competent driver and if she did not do so
she had breached the standard of care required. On the facts it can be assumed that Jamal has
breached the standard of a reasonable, competent driver.

Thirdly Nadia would be able to show that the injuries she has sustained are a result of the
accident caused by Jamal’s carelessness. She will be able to show on the facts that it is Jamal’s
breach of duty that caused the harm. Moreover the damage is reasonably foreseeable and not
remote.

As far as Mary and Lynn are concerned, the law relating to psychiatric injury must be discussed
in order to assess whether their claims would be successful or not. Psychiatric injury is an injury
that affects the mind rather than the body and the harm must be of a type that is medically
recognized. It will not include ordinary human emotions such as grief or being upset. The law of
psychiatric injury recognizes two categories of victim: a primary victim is a person present at the
scene of the incident that is either harmed or at risk of being harmed. A secondary victim is
someone who is a witness to the injury caused to others but is not put in danger of physical
injury to himself.

As far as both Mary and Lynn are concerned they can be classified as secondary victims as both
of them are neither involved in the accident nor were they at risk of any injury. The rules for
secondary victims have been developed in the two key cases of Mcloughlin v O’Brian and Alcock
v Chief Constable of South Yorkshire. Lord Oliver in Alcock set out four control mechanisms to
restrict claims: it must be shown that the harm was reasonably foreseeable, the nature and
cause of the psychiatric injury, that there must be a close tie of love and affection to the primary
victims, there should be proximity in time and space to the accident and the secondary victim
witnesses the accident or its immediate aftermath with their unaided senses.

As far as Mary is concerned, it is possible to argue that her trauma is reasonably foreseeable as
she was present at the scene of the accident and witnessed it. In addition to foreseeability she
must also show that the psychiatric injury is not only a medically recognized illness but also that
it was the result of suffering a sudden and unexpected shock caused by a horrifying accident. It
is arguable whether being traumatized would fall within the definition of a medically
recognizable illness or whether it is a human emotion in response to having witnessed
something disturbing. Moreover the accident and the degree of injuries sustained do not lend
itself to the assumption that the accident was serious enough to be considered a horrifying
incident. Mary will also have to show that she falls within a class of persons allowed by law to
claim compensation for psychiatric injury. On the facts Mary calls an ambulance, helps Jamal
from the van and stays with Nadia till the ambulance arrives. She could argue that she falls
within the category of rescuers as she was present at the scene of the accident.

Under Chadwick v British Railway Board rescuers enjoyed a special status on the grounds of
public policy that allowed them to recover. This changed in White v Chief Constable of South
Yorkshire and it was stated that rescuers were not to be considered a special category and were
to be subjected to the normal rules on secondary victims stated in Alcock. This would have the
effect of defeating Mary’s claim as she does not have a pre-existing close relationship with the
victims of the accident. As far as proximity is concerned, Mary is close to the incident in both
time and place and has witnessed the accident through unaided senses as she is present at the
scene of the accident.

Taking into account the rules that have been discussed and applied to Mary’s case it appears
that in all likelihood she will not be able to claim as a secondary victim.

As far as Lynn is concerned, she is informed of the accident over the phone but arrives at the
hospital as Nadia is being brought it, presumably in the same state of the accident. Lynn is also a
secondary victim who claim will be judged against the rules laid down in McLoughlin and
Alcock. In Mcloughlin v O’ Brian the claimant was not with her family at the time of their
accident but was told about it immediately afterwards and she saw her family in the state they
were in right after the accident. She was able to claim for psychiatric injury as she had
witnessed the immediate aftermath of the accident. The decision referred to policy based
factors like the claimant’s relationship to the primary victims, her proximity to the accident and
the shock induced by what she saw that needed to be taken into account. In Lynn’s case she is
Nadia’s mother and so falls within the category of claimants that can recover. She can be
considered proximate to the accident as she witnesses its immediate aftermath and it is
reasonably foreseeable that she would be shocked by what she sees. This can also be seen in
the case of Galli-Atkinson v Seghal where the court stated that the mother’s visit to the morgue
two hours after the accident could be considered as being within the immediate aftermath
because it was part of a sequence of events that began with her being told about her daughter
being dead.

On the facts therefore it can be argued that it is possible for Lynn to recover for psychiatric
injury.