Introduction

A claimant who has suffered psychiatric damage (previously referred to as nervous shock) may make a claim in Negligence. The rules are refined to take account of the special nature of psychiatric damage, compared to personal injury or damage to property. Personal injury damages may include the head of damage for pain and suffering, including mental, if it flows from the original physical injury. Therefore the psychiatric damage rules apply where there is no physical injury.

General restrictions

A claim for psychiatric damage is limited by two requirements: that the harm suffered is a medically recognised condition and that it is sudden rather than gradual damage. These restrictions aim to: help determine genuine claims, prevent opening the floodgates and therefore limit possible liability for defendants.

Medically recognised condition

A claim for psychiatric damage must be based on the claimant suffering a 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

  Facts:

  The victim had assisted victims of the Lewisham train crash and as result developed a personality disorder, which eventually led to his own death.

  Issue:

  Is a personality disorder a recognised medical condition?

  Held:

  A personality disorder is a recognised medical condition.

  Waller J: .. The community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress to be regarded as extraordinary. There is an infinite variety of creatures, all with varying susceptibilities....

• Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 All ER 215

  Facts:

  The claimant suffered post traumatic distress disorder (PTSD) after acting as an appropriate adult during police interviews of Fred West, a notorious child murderer.

  Issue:

  Is PTSD a medically recognised condition?

  Held:

  PTSD is a medically recognised condition.

• Bourhill v Young [1942] 2 All ER 396

  Facts:

  The plaintiff suffered a miscarriage, induced by the shock of witnessing the aftermath of a traffic accident.

  Issue:

  Is a miscarriage medically recognised condition?

  Held:

  A miscarriage is a medically recognised condition.

• Kralj v McGrath [1986] 1 All ER 54

  Facts:

  The plaintiff suffered pathological grief after her child died at birth.

  Issue:

  Is pathological grief a medically recognised condition?

  Held:

  Pathological grief is a medically recognised condition. However, normal grief is not.

• Vernon v Bosley (No 1) [1997] 1 All R 577

  Facts:

  The plaintiff suffered distress after witnessing firemen trying to rescue her children from a car wreckage.

  Issue:

  Is distress a medically recognised condition?

  Held:

  Distress is not a medically recognised condition.

• Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65

  Facts:

  The victims were killed at the Hillsborough disaster. The claim was fear suffered prior to their deaths.

  Issue:

  Is fear a medically recognised condition?

  Held:

  Fear is a not medically recognised condition as it is a normal emotion.

Sudden event

The psychiatric damage must be brought on by a sudden event. Even, if it is foreseeable that the claimant, 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....

• W v Essex County Council [2001] 2 AC 592

  Facts:

  The claimants suffered psychiatric damage after being told that their foster child had sexually abused their children.

  Issue:

  Was the damage too remote?

  Held:

  The House of Lords declined to strike out the claim on the basis that the claimants had only been told about, rather than witnessed the incident or its immediate aftermath.

Therefore, all claims for psychiatric damage must be based on the claimant suffering a medically recognised psychiatric illness, or shock induced physical condition, caused by sudden shock.

Duty of care

As with all claims in Negligence it is necessary to prove that the defendant owed the claimant a duty of care . The duty of care element is the difficult to prove in cases of psychiatric damage. A duty will only be owed if the claimant is a reasonably foreseeable victim. Therefore, claimants who suffer psychiatric damage (a medically recognised condition suddenly induced by shock) are categorised as primary or secondary victims. The classification is in relation to their proximity to the incident with slightly different criteria applied to determine if a duty of care is owed.

Duty of care: primary victims

The leading case on primary victims is a House of Lords decision , looking at a case involving pure psychiatric damage.

• Page v Smith [1996] AC 155

  Facts:

  The plaintiff was involved in a minor car accident, caused by the defendant's negligence. The plaintiff suffered no physical injuries but since the accident he was unable to work due to chronic and permanent ME. The plaintiff had previously suffered from mild, sporadic ME.

  Issue:

  Was a duty of care owed?

  Held:

  A duty of care was owed. The plaintiff was a 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 are owed a duty of care in relation to pure psychiatric damage, if the risk of physical injury was foreseeable. The risk of psychiatric harm itself 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....

A case decided prior to the distinction between types of victim, shows the same underlying principles. The victim was essentially a primary victim.

• Dulieu v White & Sons [1901] 2 KB 669

  Facts:

  The defendants negligently drove a horse drawn cart into a pub. The plaintiff, a pregnant barmaid, suffered shock leading to her having a miscarriage.

  Issue:

  Was a duty of care owed?

  Held:

  A duty of care was owed. It was foreseeable that the defendants' negligence would cause the plaintiff to reasonably fear for her own safety. The plaintiff suffered a shock induced, recognised physical condition, a miscarriage.

Therefore, a defendant owes a primary victim a duty of care not to cause pure psychiatric damage, if the risk of physical injury was foreseeable.

Duty of care: secondary victims

A secondary victim is a person less closely involved in the incident than a primary victim. Therefore, the test for establishing a duty of care is more stringent. As with all victims, a secondary victim must have suffered a medically recognised condition, as a result of sudden shock.

The additional requirements for secondary victims are set out in the leading case, relating to the Hillsborough disaster. A large number of football supporters were killed and injured in the incident, which was caused by the negligence of police officers who allowed overcrowding in the stands. Many successful claims for damages were brought on behalf of those who suffered personal injuries at the football ground and primary victims who suffered pure psychiatric damage.

The requirements narrow a defendant's liability towards secondary victims.

• Secondary victims: foreseeability of psychiatric harm

  Foreseeability of psychiatric harm to a secondary victim is determined by an objective test: is it reasonably foreseeable that a person of normal fortitude in the claimant's position would suffer psychiatric harm?

• Secondary victims: proximity of relationship

  A secondary victim must have a close relationship of love and affection with the 'immediate victim' (the person endangered by the defendant's negligence). There is a presumption of such close ties if the relationship is that of a parent, child, spouse and probably finance. However, the presumption is rebuttable if the defendant can produce evidence to the contrary. Similarly, the claimant may make representations to show that a sufficiently close relationship did exist. The House of Lords suggested the relationship of a bystander may be sufficient.

  Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310

  Lord Ackner: .. While it may be very difficult to envisage a case of a stranger, who is not actively and foreseeably involved in a disaster or its aftermath, other than in the role of rescuer, suffering shock-induced psychiatric injury by the mere observation of apprehended or actual injury of a third person in circumstances that could be considered reasonably foreseeable, I see no reason in principle why he should not, if in the circumstances, a reasonably strong-nerved person would have been so shocked. In the course of argument your Lordships were given, by way of an example, that of 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, a later case seemed to suggest that a bystander would not have a 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

  A secondary victim must be present at the incident or the immediate aftermath and must see or hear it with his own senses. The need for proximity of time and space was established in an earlier case, approved in Alcock.

  McLoughlin v O'Brian [1982] 2 All ER 298

  Facts:

  The plaintiff suffered psychiatric harm after her husband and children were involved in a serious road traffic accident, caused by the defendant's negligence. The plaintiff was informed of the accident buy a friend who had witnessed the crash. The plaintiff arrived at the hospital about an hour after the crash and found family receiving medical attention.

  Issue:

  Was there sufficient proximity in time and space?

  Held:

  There was sufficient proximity in time and space because the plaintiff saw her family in the immediate aftermath of the accident. It was within an hour of the crash and the victims were still in the same condition (covered in mud, oil and blood).

  Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310

  Facts:

  One of the plaintiffs had identified his brother-in-law in the mortuary eight hours after the incident. The victim's body was badly bruised.

  Issue:

  Was there sufficient proximity in time and space?

  Held:

  There was insufficient proximity in time and space.

  Lord Ackner: .. it is clear from McLoughlin's case that there may be liability where subsequent identification can be regarded as part of the 'immediate aftermath' of the accident... Even if this identification could be described as part of the 'aftermath', it could not in my judgment be described as part of the immediate aftermath... there was not sufficient proximity in time and space to the accident....

  Therefore, a secondary victim does not have to be present at the incident but must experience the immediate aftermath. The question of immediacy is determined on a case by case basis.

  Galli-Atkinson v Seghal [2003] EWCA Civ 697

  Facts:

  The claimant identified her daughter's body in a mortuary, approximately two hours after she was killed in car accident.

  Issue:

  Was there sufficient proximity in time and space?

  Held:

  There was sufficient proximity in time and space, the claimant suffered psychiatric damage as a result of experiencing the immediate aftermath of the accident.

  The proximity of time and space is also linked to the claimant'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....

  The question of whether watching live television coverage can amount to sufficient proximity of perception has been considered.

  Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310

  Facts:

  Some of the plaintiffs watched a live broadcast of the incident on television.

  Issue:

  Was proximity of perception satisfied by watching the incident on television?

  Held:

  The plaintiffs did not have proximity of perception. The television broadcast did not include suffering of identifiable individuals as the broadcasting ethics code prevented such images being shown. The plaintiffs watching footage from the stadium was not equivalent to seeing and hearing the event or its immediate aftermath.

  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 as a result of helping at an accident caused by negligence. As a matter of public policy, rescuers are generally encouraged and claims in Negligence tend to reflect this.

• Chadwick v British Transport Commission [1967] 2 All ER 945

  Facts:

  The victim had assisted victims of a train crash, near his home, which was caused by the defendant's negligence. He spent a couple of hours crawling under the debris and giving injections to the wounded. As a result he suffered psychiatric damage, which eventually led to his own death.

  Issue:

  Was a duty of care owed?

  Held:

  A duty of care was owed as the victim was clearly a rescuer who had placed hismelf in danger.

• McFarlane v EE Caledonia Ltd [1994] 2 All ER 1

  Facts:

  An oil rig exploded, due to the defendant's negligence, killing over one hundred workers. The plaintiff was a worker on the rig, however, at the time of the explosion, he was off duty and resting on a ship approximately 100 metres away from the rig. Survivors from the incident were transferred to the same ship.

  Issue:

  Was a duty of care owed?

  Held:

  The plaintiff was not a rescuer, no duty of care existed as he was a bystander.

• White v Chief Constable of the South Yorkshire Police [1999] 2 AC 455

  Facts:

  The plaintiffs were police officers who suffered psychiatric damage due to their experiences rescuing victims of the Hillsborough disaster.

  Issue:

  Were the police officers primary or secondary victims?

  Held:

  The House of Lords reversed the Court of Appeal decision in Frost v Chief Constable of South Yorkshire [1997] 1 All ER 540, which had found that the plaintiffs were primary victims, as rescuers.

  The plaintiffs were not primary victims as they we were not within the range of foreseeable physical injury and their psychiatric harm was a result of witnessing the immediate aftermath of the incident. A rescuer is only considered a primary victim if he is in danger of physical injury or reasonably believes that he is.

  Furthermore, no duty of care in relation to the psychiatric damage was owed to the plaintiffs on the basis that the defendant was their employer.

Breach of duty and causation

Generally, the pivotal part of most psychiatric damage claims in Negligence is whether a duty of care is owed. However, a claimant must also show that the defendant was in breach of the duty and that the breach caused the damage. Remoteness of damage can raise some issues, especially in relation to the egg shell rule.

A primary victim may rely on the egg shell rule, as in Page v Smith [1996] . A secondary victim must show that the psychiatric damage was objectively, reasonably foreseeable: essentially, that a person of normal fortitude in the claimant's position would suffer psychiatric damage. If a claimant can satisfy this test, a duty of care is established. The claimant may then rely on the egg shell rule if he suffers psychiatric damage greater than would be expected in a person of normal fortitude.

Misconceptions

Claimants that wrongly believe, due to the defendant's negligence, that they have caused death or injury to another person, are primary victims.

• Dooley v Cammell Laird & Co [1951] 1 Lloyd's Rep 271

  Facts:

  The plaintiff was a crane driver employed by the defendant. The crane broke and heavy material fell, due to the defendant's negligent maintenance of the equipment. The plaintiff suffered psychiatric damage as he wrongly believed that fellow workers had been injured due to his own error.

  Issue:

  Was the damage recoverable?

  Held:

  The plaintiff could recover, as psychiatric damage was reasonably foreseeable consequence of the defendant's negligence.

• Hunter v British Coal [1998] 2 All ER 97

  The Court of Appeal found that only plaintiffs who are present at the scene may claim in relation to a misconception.

Witness to destruction of property

A claimant may be able to make a successful claim for psychiatric damage after witnessing destruction of property.

Development of the law

The Law Commission looked at the law relating to psychiatric damage after the well-publicised cases surrounding the Hillsborough disaster. They published recommendations for reform but these have yet to be translated into legislative provision. The report recommends imposing a statutory duty of care in relation to psychiatric damage to co-exist with the common law.

Therefore, the Law Commission's proposal for a statutory duty would mean that the Alcock test of proximity of time and space would no longer be applicable. However, the Alcock test of proximity of relationship would remain, with statutory list of those who would automatically qualify. The recommendations also state that those who have suffered psychiatric damage due to prolonged trauma should not be excluded from claiming on the basis of the sudden shock principle.

This is an area of law which is likely to develop further, especially as understanding of psychiatric damage progresses.