bits of law

TORT | Negligence

Psychiatric Damage:
Liability
Revision Note | Degree

14 MAY 2013

Introduction
• claimant's (C) who suffer psychiatric damage (nervous shock) can claim in Negligence, rules refined to take
account of special nature of damage
• personal injury damages may include pain & suffering (covers mental) if flows from original physical injury
• psychiatric damage rules apply where there is no physical injury

General restrictions
• psychiatric damage limited by 2 requirements: harm suffered is medically recognised condition & it is sudden
not gradual damage
• restrictions aim: help determine genuine claims, prevent opening floodgates & limit possible liability for
defendants (D)

Medically recognised condition

• psychiatric damage must be based on C suffering medically recognised condition, induced by shock

ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 AC 310

• Lord Ackner: '.. the law gives no damages if the psychiatric injury was not induced by
shock. Psychiatric illnesses caused in other ways,such as from the experience of having
to cope with the deprivation consequent upon the death of a loved one, attracts no
damages...'

CHADWICK V BRITISH TRANSPORT COMMISSION [1967] 2 ALL ER 945

• recognised medical condition: personality disorder

• Waller J: '.. There is an infinite variety of creatures, all with varying susceptibilities...'

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 LEACH V CHIEF CONSTABLE OF GLOUCESTERSHIRE CONSTABULARY [1999] 1 ALL
ER 215

• medically recognised condition: post traumatic distress disorder (PTSD)

KRALJ V MCGRATH [1986] 1 ALL ER 54

FACTS:

• medically recognised condition: pathological grief but normal grief is not

VERNON V BOSLEY (NO 1) [1997] 1 ALL R 577

• medically recognised condition: distress

HICKS V CHIEF CONSTABLE OF THE SOUTH YORKSHIRE POLICE [1992] 2 ALL ER 65

• not medically recognised condition: fear, it is a normal emotion

Sudden event
• psychiatric damage must be brought on by sudden event
• insufficient: even if foreseeable C, under strain, may gradually suffer psychiatric harm

ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 AC 310

• Lord Ackner: '... 'Shock', in the context of this cause of action, involves the sudden
appreciation by sight or sound of a horrifying sight or sound or 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
• D must owe C duty of care
• duty of care: difficult to prove in cases of psychiatric damage, only duty if C a reasonably foreseeable victim
• Cs who suffer psychiatric damage (medically recognised condition suddenly induced by shock) categorised
as primary or secondary victims
• classification in relation to their proximity to incident, with different criteria applied to determine if duty owed

Duty of care: primary victims

• leading case on primary victims is House of Lords decision involving pure psychiatric damage

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 PAGE V SMITH [1996] AC 155

FACTS:

• plaintiff (P) involved in minor car accident, caused by D's negligence

• P suffered no physical injuries, but since accident P unable to work due to chronic & permanent
ME (P previously suffered from mild, sporadic ME)

ISSUE:

• was a duty of care owed?

HELD:

• duty of care owed: P was primary victim because he was involved in the accident
• Lord Lloyd: '.. A primary victim is someone was in the actual area of danger or reasonably
believed he was in danger. A secondary victim is someone who witnesses injury to
another or fears for the safety of another...'
• primary victims: owed duty of care in relation to pure psychiatric damage, if risk of physical injury
was foreseeable (risk of psychiatric harm does not need to be foreseeable)
• Lord Lloyd: '.. In an age when medical knowledge is expanding fast, and psychiatric
knowledge with it, it would not be sensible to commit the law to a distinction between
physical and psychiatric injury, which may already seem somewhat artificial, and may
soon be altogether outmoded. Nothing will be gained by treating them as different 'kinds'
of personal injury, so as to require the application of different tests in law...'

• earlier case shows same underlying principles

DULIEU V WHITE & SONS [1901] 2 KB 669

FACTS:

• Ds negligently drove horse drawn cart into a pub & P, pregnant barmaid, suffered shock leading
to a miscarriage

ISSUE:

• was a duty of care owed?

HELD:

• duty of care owed: was foreseeable that Ds' negligence would cause P reasonably fear for her
own safety & shock induced, recognised physical condition

• D owes primary victim duty of care not to cause pure psychiatric damage, if risk of physical injury was
foreseeable

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Duty of care: secondary victims
• secondary victim: less closely involved in incident than primary victim, therefore test for establishing duty of
care more stringent
• secondary victim must have suffered medically recognised condition as result of sudden shock
• additional requirements: leading case, relates to Hillsborough disaster (large number of football supporters
were killed & injured in incident caused by negligence of police officers who allowed overcrowding in the
stands)

ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 AC 310

FACTS:

• Ps were relatives of victims of Hillsborough disaster

• Ps were secondary victims who suffered pure psychiatric harm (it was assumed Ps could show
they suffered PTSD)
• some Ps were spectators at football ground & others witnessed events on television
• Ds (police force) admitted negligence allowing overcrowding but denied owing duty of care to
spectators in relation to pure psychiatric harm

ISSUE:

• was a duty of care owed?

HELD:

• no duty of care: Ps could not recover damages for psychiatric harm

• House of Lords: test to impose duty of care to secondary victims:
foreseeability of psychiatric harm: reasonably foreseeable a person of normal fortitude in P's
position would suffer psychiatric illness
proximity of relationship: P must have close relationship of love & affection with person
endangered by D's negligence
proximity in time and space: P must be present at incident or immediate aftermath
proximity of perception: P must see or hear incident or immediate aftermath, with his own
senses

• requirements narrow D's liability towards secondary victims

Secondary victims: foreseeability of psychiatric harm

• foreseeability of psychiatric harm determined by objective test: is it reasonably foreseeable that person of
normal fortitude in C's position would suffer psychiatric harm?

Secondary victims: proximity of relationship

• secondary victim must have close relationship of love & affection with immediate victim
• rebuttable presumption there is close ties if: parent, child, spouse & C may argue in other relationships
sufficient closeness
• House of Lords suggested relationship of bystander may be sufficient

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 ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 AC 310

• Lord Ackner: '.. [for example] a petrol tanker careering out of control into a school in
session and bursting into flames. I would not be prepared to rule out a potential claim by a
passer-by so shocked by the scene as to suffer psychiatric illness...'

• however later case seems to suggest bystander not sufficiently proximate relationship

MCFARLANE V EE CALEDONIA LTD [1994] 2 ALL ER 1

• Stuart-Smith LJ: '.. In my judgment both as a matter of principle and policy the Court
should not extend the duty to those who are mere bystanders or witnesses of horrific
events unless there is a sufficient degree of proximity, which requires both nearness in
time and place and a close relationship of love and affection between plaintiff and victim...'

Secondary victims: proximity in time and space and perception

• secondary victim must be present at incident or immediate aftermath & see or hear it with his own senses
• proximity of time & space established in earlier case & approved in Alcock

MCLOUGHLIN V O'BRIAN [1982] 2 ALL ER 298

FACTS:

• P suffered psychiatric harm after her husband & children involved in serious car accident, caused
by D's negligence
• P informed by friend who witnessed crash & P arrived at hospital 1hr after crash & found family
receiving medical attention

ISSUE:

• was there sufficient proximity in time & space?

HELD:

• there was sufficient proximity in time & space: P saw her family in immediate aftermath, within 1hr
& victims still in same condition (covered in mud, oil & blood

ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 AC 310

FACTS:

• P identified his brother-in-law in mortuary 8hrs after incident, victim's body was badly bruised

ISSUE:

• was there sufficient proximity in time & space?

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 HELD:

• insufficient proximity in time & space: not immediate aftermath

• secondary victim not present at incident must experience immediate aftermath, immediacy determined case
by case

GALLI-ATKINSON V SEGHAL [2003] EWCA CIV 697

FACTS:

• C identified her daughter's body in mortuary, approximately 2hrs after she was killed in car
accident

ISSUE:

• was there sufficient proximity in time & space?

HELD:

• sufficient proximity in time & space: C suffered psychiatric damage after experiencing immediate
aftermath of accident

• proximity of time & space linked to C's proximity of perception

MCLOUGHLIN V O'BRIAN [1982] 2 ALL ER 298

• Lord Wilberforce: '.. The shock must come through sight or hearing of the event or of its
immediate aftermath...'

• whether watching live television coverage can amount to sufficient proximity of perception

ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 AC 310

FACTS:

• some Ps watched live broadcast of incident on television

ISSUE:

• was proximity of perception satisfied by watching incident on television?

HELD:

• Ps not have proximity of perception: broadcast did not include suffering of identifiable individuals
(broadcasting ethics code prevented)
• Ps watching footage not equivalent to seeing & hearing event or its immediate aftermath

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 • Lord Ackner: '.. the simultaneous television broadcasts of what occurred cannot be
equated with the 'sight or hearing of the event or its immediate aftermath'. Accordingly
shocks sustained by reason of these broadcasts cannot found a claim... simultaneous
broadcasts of a disaster cannot in all cases be ruled out as providing the equivalent of the
actual sight or hearing of the event or its immediate aftermath...'

Duty of care: rescuers

• rescuers may suffer psychiatric damage after helping at accident caused by negligence
• primary victims: if endangered themselves

CHADWICK V BRITISH TRANSPORT COMMISSION [1967] 2 ALL ER 945

FACTS:

• P suffered psychiatric damage after helping at train crash, caused by D's negligence
• P crawled under debris & gave injections to wounded

ISSUE:

• was a duty of care owed?

HELD:

• duty of care owed: P placed himself in danger as a rescuer

MCFARLANE V EE CALEDONIA LTD [1994] 2 ALL ER 1

FACTS:

• oil rig exploded, due to D's negligence, killing over 100 workers
• P off duty & resting on ship 100 metres away, survivors from incident transferred to same ship
• P suffered psychiatric damage

ISSUE:

• was a duty of care owed?

HELD:

• no duty of care: P bystander not rescuer

WHITE V CHIEF CONSTABLE OF THE SOUTH YORKSHIRE POLICE [1999] 2 AC 455

FACTS:

• Ps, police officers, suffered psychiatric damage due to experiences rescuing victims of
Hillsborough disaster

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 ISSUE:

• were police officers primary or secondary victims?

HELD:

• House of Lords: Ps were not primary victims: not within range of foreseeable physical injury &
psychiatric harm result of witnessing immediate aftermath
• rescuer only primary victim if in danger of physical injury or reasonably believes that he is
• no duty of care owed to Ps on basis that D was employer
• reversed Court of Appeal decision in Frost v Chief Constable of South Yorkshire [1997] 1 All
ER 540, which found Ps were primary victims as rescuers

Breach of duty and causation

• C must also show D was in breach of duty of care & breach caused damage
• remoteness of damage can raise some issues (especially egg shell rule)
• primary victim: can rely on egg shell rule, as in Page v Smith [1996]
• secondary victim: must show psychiatric damage was objectively, reasonably foreseeable (person of normal
fortitude in C's position would suffer psychiatric damage), if test satisfied duty of care established & C may
then rely on egg shell rule if suffers psychiatric damage greater than would be expected

Misconceptions
• C that wrongly believes, due to D's negligence, he caused death or injury to another person, is primary victim

DOOLEY V CAMMELL LAIRD & CO [1951] 1 LLOYD'S REP 271

FACTS:

• P crane driver employed by D & crane broke due to D's negligence

• P suffered psychiatric damage as he wrongly believed fellow workers had been injured due to his
own error

ISSUE:

• was the damage recoverable?

HELD:

• recoverable: psychiatric damage reasonably foreseeable consequence of D's negligence

HUNTER V BRITISH COAL [1998] 2 ALL ER 97

• Court of Appeal: only Ps present at scene may claim in relation to misconception

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Witness to destruction of property
• C may make claim for psychiatric damage after witnessing destruction of property

ATTIA V BRITISH GAS PLC [1988] QB 304

FACTS:

• P suffered psychiatric damage after witnessing her house burning down, due to D's negligence
• P did not fear for safety of herself or others

ISSUE:

• can destruction of property give rise to claim for psychiatric damage?

HELD:

• P may succeed if D has duty of care not to damage the property

• Lord Justice Woolf: no distinction between physical & psychiatric injury
• however decided before Alcock

Development of the law

• The Law Commission reviewed psychiatric damage after Hillsborough disaster cases
• report recommends imposing statutory duty of care in relation to psychiatric damage to co-exist with common
law, but not yet translated into legislative provision

LIABILITY FOR PSYCHIATRIC ILLNESS (LAW COM NO 249 1998)

• (11): statutory duty of care owed if P suffers reasonably foreseeable recognisable psychiatric
illness as result of death, injury or imperilment of person who has close tie of love & affection,
regardless of closeness in time & space to accident or aftermath
• (14): fixed list of relationships with close tie of love & affection: spouse, parent, child, sibling,
cohabitant of at least 2 yrs
• (7): recognisable psychiatric illness not have to be induced by shock

• Law Commission's statutory duty would mean:

Alcock test of proximity of time & space not applicable
Alcock test of proximity of relationship applicable but statutory list of those who automatically qualify
Cs suffer psychiatric damage due to prolonged trauma not excluded, as no sudden shock principle
• area of law which likely to develop further, especially as understanding of psychiatric damage progresses

This article can be found online at www.bitsoflaw.org/tort/negligence/revision-note/degree/psychiatric-damage-liability where links to further

resources are available.

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