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Liability for Psychiatric Injury

--Special Duty Problem III
Dr Grace Mou
Establishing a claim of negligence

Negligence

Psychiatric Pure Economic

Duty omissions
injury Loss

Standard of Proving breach

Breach
care

Remotenes (Cause in
Causation Cause in Fact
law)

Contributory Volenti Ex turpi

defences negligence

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Introduction

• A problematic area of duties of

care

• Relevant Concepts

• The Hillsborough disaster and the

development of the law

• Different types of situations

Is it an actionable harm?
Three concepts

• Bereavement
Fatal Accident Act 1976, s1A.

• Mental distress (anxiety, worry, grief etc.)

Has to be medically recognised psychiatric harm (not mere
negative emotion)

• Pure psychiatric injury (or nervous shock, severe

psychological harm): medically recognised psychiatric
harm
c.f: Consequential mental harm recoverable under the
head of ‘pain, suffering and loss of amenity’ (non-
pecuniary damages). Attia v British Gas [1987] 3 All ER 455

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 Mental distress: Unprotected
legal interest

An unactionable damage

• Fear-of-the-future claimants
C.f Johnston v NEI International
Combustion Ltd [2007]; Rothwell v
Chemical and Insulating Co Ltd [2008]
(pleural plaques could potentially
develop cancer)

• D v East Berkshire NHS (2005)

‘The world is full of harm for which
the law furnishes no remedy’ -- Lord
Rodger.
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Primary victims vs Secondary
victims
Primary victims
• A victim whose physical safety is imperiled or one who
reasonably believes s/he was imperiled by D’s negligence

• It is a two-party situation: Victim --- Defendant

• Two forms:
A. the ‘zone-of-danger’ primary victim
B. the ‘guilt-ridden’ primary victim

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Two-party situation (zone-of-danger
victims)

A caused an accident as a result of carelessly doing X,

and B was almost injured as a result. B subsequently
developed a psychiatric illness

• Page v Smith [1996]: B will be able to sue A for his

psychiatric illness provided he can show that A owed
him a duty to take care not to do X based on the fact
that A’s doing x would result in B’s being physically
injured.

• Young v Charles Church Ltd [1997]: C was a primary

victim as he was in the area of physical danger created
by D’s negligent system of work in allowing scaffolding
to be erected near ‘live’ power-lines
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Two-party situation (the ‘guilt-ridden’ primary
victim)

W v Essex CC [2001]: C was a primary victim, who was an

unwilling participant having brought their children and G
together under the one roof and feeling responsible for
failing to recognise the seriousness of their children’s plight
more quickly.

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Secondary victims

Three-party situation
X who is killed,
injured or
imperiled (the
immediate/primary D, who
victim) injures,
imperils or
kills X

C, secondary victim who is Duty of care

a bystander to x’s here?
suffering (the claimant)

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The Secondary Victim • C is not a direct participant but
merely witnesses accident or
arrives in aftermath of accident.
• No duty of care owed to C in
principle, unless C shows
‘something more’ (e.g close and
loving relationship, immediate
aftermath, etc…).
• Principle of ‘normal fortitude’: ‘a
person of ordinary phlegm’
Bourhill v Young [1942]: Claim for
nervous shock failed: outside area
of impact and, as unknown to
motorcyclist involved in accident,
outside area of foresight of shock.

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The Hillsborough Disaster
https://www.youtube.com/watch?v=J6kAtdwNJ5s

A fatal human crush during the FA Cup semi-final between Liverpool and
Nottingham Forest at Hillsborough Stadium in Sheffield, South Yorkshire,
England, on 15 April 1989.

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Prior to Hillsborough: three exceptions

Family situation

McLoughlin v O'Brian [1983]

‘dearness, nearness and
hearness’
• a) relationship between C
and injured victims
• b) proximity of C in time
and space – “immediate
aftermath”

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Prior to Hillsborough

Employment responsibility
situation

Dooley v Cammell Laird & Co

Ltd [1951]: D had owed C a
duty to take care not to cause
the accident that had occurred
on the ground that because C
thought he was responsible for
the accident that occurred.

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Prior to Hillsborough

Rescuers

Chadwick v British Railways

Broad[1967]: D had owed C a
duty of care not to cause the
train crash on the basis that it
was reasonable that if such a
crash did occur, a rescuer like C
would suffer a psychiatric illness
as a result.

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 F.A. Cup semi-final: Liverpool v Nottingham Forest. 96 dead, 400
The Hillsborough injured
disaster https://www.youtube.com/watch?v=J6kAtdwNJ5s
It has significantly modified the pattern of the law in this area…
Hillsborough
Stadium, 15th April Two classes of cases:
1989
• Alcock v Chief Constable of South Yorkshire Police[1999]
• White (Frost) v Chief Constable of South Yorkshire Police
[1999]

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Alcock mechanisms-- secondary victims

Five Elements (you need to prove all of them!)

1. Relationship proximity (close tie of love and affection): e.g.
a marital or parental relationship
2. Physical proximity (direct perception): The secondary
victim must be personally present at the scene or
immediate aftermath
NG: the catastrophe was transmitted by a broadcast subject to the
Broadcasting Code of Ethics. Should a broadcaster fail to follow the
Code , it might itself incur liability for the psychiatric injury as a
novus actus interveniens.
3. Whether the psychiatric injury was a reasonably
foreseeable consequence of the acts or omissions
constituting the breach of duty to the primary victim
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Alcock mechanisms-- secondary victims

4. Shock-- ‘a sudden assault on the nervous system’; The

psychiatric injury must arise from a sudden and
unexpected shock to the secondary victim’s nervous
system (rather than gradual realisation over the course of
time)
oSion v Hampstead HA[1992]: if C had prepared himself for
this to happen, it does not satisfy the shock requirement.
o Walters v North Glamorgan NHS [2002]: a seamless
shock -- ‘a seamless tale with an obvious beginning and
an equally obvious end’

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Alcock mechanisms: secondary victims

5. Temporal proximity: A close temporal connection between

the event and the secondary victim’s perception of it
o Taylor v A Novo (UK) Ltd [2014] QB 150: proximity was lacking
because C was not present at the scene of the accident (when the
racking boards fell on her mother) and was not involved in its
immediate aftermath.
o Paul v Royal Wolverhampton NHS Trust; Polmear and Anor v Royal
Cornwall Hospitals NHS Trust; and Purchase v Ahmed [2022] 2 WLR
927 (SC judgment pending): clinical negligence cases; for a secondary
victim to be sufficiently proximate to claim for psychiatric injury
against the defendant whose clinical negligence caused the primary
victim injury, the horrific event cannot be a separate event removed
in time from the negligence.
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Rescuers

White (Frost) v CCSYP [1999]

• Modified the rescuer rule
• secondary victim must satisfy Alcock
mechanisms.
• Chadwick v British Railways Board
[1967] distinguished (two-party
situation, in a dangerous zone).

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 Criticism of White
‘Suppose that there was a terrible train crash
and that there were two Chadwick brothers
living nearby, both of them small and agile
window cleaners distinguished by their courage
and humanity. Mr. A. Chadwick worked on the
front half of the train, and Mr. B. Chadwick on
the rear half. It so happened that, although
there was some physical danger present in the
front half of the train, there was none in the
rare. Both worked for 12 hours or so bringing
aid and comfort to the victims. Both suffered
PTSD in consequence of the general horror of
the situation. According to the decision of the
majority, Mr. A would recover but Mr. B would
not. To make things worse, the same conclusion
must follow even if Mr. A was unaware of the
existence of the physical danger present in his
half of the train. This is surely unacceptable. ‘
(Per Lord Goff, the dissenting judgment)
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 Post Hillsborough

Employer Responsibility

Hunter v British Coal Corp [1999]:

D had not owed the C a duty of care
not to cause the accident that had
triggered his depression because the
C had not witnessed the accident
(Dooley v Cammell Laird and Co Ltd
[1951] narrowed to limit the
category of D)

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 Stress-at-work situation

No special control mechanisms applying to

claims for psychiatric illness from the
stress at work. The ordinary principles of
employer’s liability apply (Barber v
Somerset County Council [2004] )
• Reasonable foreseeability:
oD knew that C is vulnerable to stress-
induced illness
oTwo components: (a) an injury to
health (as distinct from occupational
stress) which (b) is attributable to
stress at work (as distinct from other
factors)
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Stress-at-work situation

Walker v Northumberland CC [1995]: C’s

first nervous break down made his second
breakdown reasonably foreseeable
Hatton v Sutherland [2002] (Barber v
Somerset County Council [2004] ) ‘unless he
knows of some particular problem or
vulnerability, an employer is entitled to
assume that his employee is up to the
normal pressures of the job’. The threshold
question was whether the kind of harm was
reasonably foreseeable.

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Formative assessment
exercise:

Please bring your laptop

to the lecture theatre
next week (Monday 11th
Dec 2023: 1pm BGLT)

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