PSYCHIATRIC HARM Psychiatric harm may affect a wide range of persons beyond the direct victim of negligent conduct.

The courts have therefore adopted a cautious and restrictive approach to the imposition of liability in cases of psychiatric harm. Not every form of mental suffering is sufficient to establish a duty situation. DEVELOPMENT OF THE LAW McLoughlin v OBrian (1983); Attia v British Gas (1988); Reilly v Merseyside Regional HA (1995) Recognised symptoms of psychiatric injury Mere grief, sorrow or upset normal human emotions in respect of which no DoC is owed. Post Traumatic Stress-Disorder (PTSD) considered a serious and long-term medical condition, distinguishable from temporary feelings of shock most people experience after witnessing an accident. Depression/anxiety neurosis (Chadwick v British Railways Board (1967). Personality change (McLoughlin v OBrian (1983). Principle: No need for physical impact to establish a claim for psychiatric damage where injury is sustained through reasonable fear of immediate personal injury to oneself. Case pregnant woman, miscarriage resulting from shock. Principle: bystander witnessing horrific event without fear of personal harm not owed DoC. C witnessed Piper Alpha disaster, 100m away from himself. Not entitled to damages - mere bystander, lack of proximity, no close relationship of love and affection with those in danger, nor was he actively involved in the rescue operations.

Dulieu v White (1901)

McFarlane v EE Caledonia Ltd (1994)

FEAR FOR RELATIVES AND FRIENDS Hambrook v Stokes Bros (1925) Principle: Shock resulting from what is seen or perceived by a Cs own unaided senses is recoverable: however, no liability in respect of shock sustained as a result of what C has been told by a third party. Damages awarded where mother, fearing safety of her children at the sight of a lorry careering towards them, suffered nervous shock and consequently died. CA rejected limitation laid down in Dulieu (psychiatric injury only actionable if C reasonably apprehended fear for his safety) to cover case of mother apprehending injury to child. Decision limited claims to Cs in close physical proximity to the accident, although not essential that they had seen the accident itself. Sight and sound requirement extended in McLoughlin v OBrian (1983) to include aftermath of the accident. Principle: C may be able to recover on the basis that he feared his actions had caused injury to others Crane driver witnessed a load dropping from his crane into hold of ship - feared injury to his workmates Ds liable to C for psychiatric injury resulting from provision of defective equipment. Principle: CA distinguished Dooley even in these 'inadvertent agency' cases, requirement of proximity in time and space still applies. C accidentally knocked a badly situated water hydrant into a coal mine. When 30 metres away, hydrant exploded and 10 minutes later C was told co-worker was dead. C blamed himself and developed psychiatric illness as result. D not liable as C not present

Dooley v Cammell Laird & Co Ltd (1951)

Hunter v British Coal (1998)

at time of injury. AREA OF SHOCK: REASONABLY FORESEEABLE C? + FORTITUDE TEST Bourhill v Young (1943) Principle: Damages recoverable so long as C was within foreseeable area of shock, and in applying test of foreseeability of injury by shock, must be shown C is a person of reasonable fortitude and not particularly vulnerable to some form of psychiatric reaction. C, pregnant woman, claimed psychiatric damage after walking onto scene of a motorcycle accident caused by Ds negligence resulting in stillbirth. Held: not owed DoC deemed unforeseeable victim not within area of impact (was in a tram at the time of accident), therefore not in immediate danger of physical harm only heard accident 50 feet away and was a total stranger to D. People are expected to possess sufficient fortitude to be able to overcome the normal distress at witnessing an accident C was considered particularly vulnerable to mental trauma due to pregnancy, therefore not of reasonable fortitude however claim for psychiatric injury will fail if events would not to some extent affected a person of reasonable fortitude. Mother and daughter injured in accident in taxi mother emotionally unstable, suffered nervous shock. Refined test of reasonable fortitude: question = would someone of ordinary phlegm or fortitude have suffered nervous shock in the circumstances? No? no claim; Yes? could recover for full extent of shock, even if person of customary phlegm would not have suffered shock to same extent. More objective standard than that

Brice v Brown (1984)

Rothwell v Chemical & Insulating Co Ltd (2006)

Distinction between primary and secondary victims in claims for psychiatric damage.

Page v Smith (1996)

in Bourhill. Principle: w/o evidence that person of reasonable fortitude would become mentally ill through fear and anxiety about some harmful risk, there is no cause of action. Case: C, former asbestos worker claimed exposure to asbestos lead to anxiety and depression - fear he could in the future contract serious asbestos-related disease. Held: Ds not liable, no evidence person of reasonable fortitude would react so strongly to risk situation would be different if exposure damaged his physical health. Primary Victim: direct participant, physical safety is imperilled or who reasonably believes s/he was imperilled by Ds negligence (twoparty case) Secondary Victim: harm stems from reacting to physical harm or threat of such, to someone else by the D. Where the C is a secondary victim, D will not be liable for psychiatric injury unless it is foreseeable in a person of reasonable fortitude. No floodgate concerns in two party cases, reflected in lack of control mechanisms used in three-party cases to limit number of potential claims. Principle: in case of primary victims, provided personal injury is foreseeable, D liable for psychiatric injury, irrespective of whether psychiatric damage was foreseeable. C and D injured in collision, C physically unharmed but was able to claim for psychiatric injury as accident resulted in reactivation of illness (ME). HL held Cs eggshell skull personality = irrelevant D required to take victim as he found

him. However, where C has eggshell skull personality, quantum of damages he receives will be reduced to account for the fact he may have suffered the illness complained of despite the Ds negligent act. EXPANSION OF LIABILITY McLoughlin v OBrian (1983) Principle: In addition to reasonable foreseeability, C must be: a close relative of the victim; witness the accident or the immediate aftermath with unaided senses; be proximate in time and space. C, mother, arrived at hospital approx. 2 hours after road traffic accident involving her husband and kids faced with one dead child and rest of family injured and not yet cleaned up/treated. Impact of scenes exposed to with such short timescale held equivalent to having been present at accident. Case extended existing law to cover situations where C was not at scene of accident however communication by a third party insufficient. Principle: Action for nervous shock may succeed where there is no danger of injury to person: psychiatric injury caused by effect of seeing property destroyed. Decided on reasonable foresight test alone, C returned home to find her house burning down. Obtained damages for nervous shock caused by Ds negligence n installing central heating. D Health Authority, discovered one of their health workers HIV+, wrote to inform patients of small risk they may have been exposed to infection. Cs alleged suffered psychiatric damage due to communication by letter rather

Attia v British Gas (1988)

AB v Thameside & Glossop HA (1997)

Greatorex v Greatorex (2000)

than face-to-face. CA held D not negligent in breaking news in the way that they did. D, car crash caused by his own negligence, father fire fighter, arrived at scene in course of employment and suffered PTSD at what he saw. Rescuer claim failed as he had not been exposed to physical danger, and claim as secondary victim (being a direct witness of a injury to person with whom he had sufficiently close relationship of love and affection) also failed. Policy considerations: liability would have potentially destructive impact on family relationships is this fair?

PSYCHIATRIC INJURY: POST-HILLSBOROUGH DISASTER Contraction of liability fear of floodgates opening Alcock v CC of South Yorkshire (1992) Principle: In addition to reasonable foreseeability, the following must be considered: the relationship between the primary victim and C; the proximity of the C in time and space to the scene of the accident; and the means by which the shock was caused. Actions brought against the police arising out of the Hillsborough stadium disaster 1989 by 16 people, some of whom were at the stadium but not in the area where the disaster occurred, and some of whom identified bodies at the mortuary. Class of persons who may claim depends upon the existence of close tie of love and affection with primary victim, presumed in cases of parents/children, spouses (possibly engaged couples), though evidence may be brought to rebut presumption - for all others relationship qualitatively similar

must be proven. Sight or sound of accident remains for proximity test, however, HL did not define immediate aftermath; in Alcock identifying body in the morgue 8 hours after incident was not within immediate aftermath (nor was a time lapse of 5 hours in Chester v Waverly Municipal Council (1939), whilst 2 hours was accepted in McLoughlin). Live TV broadcasts insufficient to base liability on TV authorities had followed a broadcasting code of ethics however breaking such code may constitute a novus actus interveniens, thereby breaking causal chain between original breach and psychiatric illness. A person who performed the role of rescuer is seen, under Alcock, as an exception the bystander class. Bystander may be able to claim if something sufficiently gruesome happened sufficiently close to him if a person of reasonable fortitude would also be so affected. However, line of reasoning rejected in McFarlane v EE Caledonia (1994) both on grounds of practicality (how does one measure gruesomeness?) and principle to accept it would be to base liability solely on a test of RF. Although critics have challenged the latter assertion, this approach to bystanders has been endorsed by the HL in White v CC of South Yorkshire Police (1999). Q: How can it be acceptable for relatives to be denied compensation on the basis of the strength, or rather lack of strength, of the emotional tie when in some circumstances even a bystander may be entitled to claim, and certainly if the bystander can bring himself within the category of "rescuer"?

Problem with acts of rescue leading to psychiatric injury = very difficult to identify exactly what an individual must do in order to claim the special status, considering the restrictive approach taken to secondary claimants generally, e.g. in McFarlane C had assisted w/survivors by handing out blankets held not sufficient to make him a rescuer.

RESCUERS PRE-HILLSBOROUGH DISASTER Chadwick v British Railways Board (1967) Principle: liability for psychiatric damage extends to rescuers and the relationship with any of the victims is not relevant to the claim. Case: passer-by assisted in rescue after rail disaster, suffered nervous shock and committed suicide extension of liability to rescuers who come upon an accident and assist in rescuing in the immediate aftermath C could recover as he could have been injured by wreckage as he helped.

POST-HILLSBOROUGH DISASTER Frost v CC of South Yorkshire (1999) Principle: Duty extends to injury resulting from C being exposed in course of duty to exceptionally horrific events, during incident caused by negligence of employer. Police officers on duty during Hillsborough disaster, action brought against employers for psychiatric injury. Held - activities sufficient for title of rescuer, exempt from requirement to show close tie of love and affection with primary victim. Police officer at Hills, but not a rescuer HL rejected analysis in

White v CC of South Yorkshire (1999)

Frost on the basis that a class incapable of being defined in law cannot be sustained and that injustice would be better served by applying ordinary rules In all cases hence C lacking close tie of love and affection with V must either be objectively at risk of physical injury, or reasonably believe themselves to be. Search for coherent principle since Alcock abandoned: each case should be approached in practical way in order to achieve fairness for each individual.

EMPLOYERS DUTY Barber v Somerset CC (2004) C, teacher D, Local Authority in breach of duty to employee when aware that difficulties of work were having an adverse affect on Cs mental health but took no reasonable measures to help him employers have duty to provide counselling to employees affected by accidents of trauma experience in the centre of employment.

REQUIREMENT FOR SUDDEN SHOCK North Glamorgan NHS Trust v Walters (2002) Principle: Courts must exercise discretion when deciding what amounts to sudden shock. C, other of baby, witnessed last distressing 36 hours of his life C held to have suffered pathological grief reaction C secondary victim with close tie of love and affection to primary victim. D argued 36 period of stress was insufficiently sudden. CA dismissed Ds appeal proximity of time and space satisfied.

SECONDARY VICTIMS W v Essex CC (2000) Principle: the category of those

claiming to be secondary victims of psychiatric injury is a concept still being developed in different factual situations. C, parents and approved foster parents, with 4 children of their own who were abused after Local Authority placed a child with history of sexual abuse in their home without informing them, despite assurances no such child would be place with them. HL held CA wrong to strike claim out on grounds of policy not clear and obvious claim would fail, parents had arguable case. HRA 1998 Courts reluctant to grant blanket immunity and to exclude DoC on grounds of policy.