Psychiatric Injury

Injury to claimant

If A can prove that B had, and breached, a duty of care not to do x, which has resulted in A suffering physical injury, A can also recover compensation for psychiatric illness that she suffered as a result of the injury, no matter how unforeseeable

Almost injury to the claimant

Page v Smith --> B will be able to sue A in negligence for psychiatric illness provided he can show that A owed him a duty of care not to do x based on the fact that it was reasonably foreseeable that A's doing x would result in B being physically injured

Injury or almost injury to third party

(1) B in 'close and loving relationship' with C, and what happened to C suffciently serious to make it reasonable foreseeable

(SM) triggered by shock of witnessing accident or seeing C in immediate aftermath

(2) B helped to assist C in aftermath, and what B saw made it reasonably foreseeable

(SM) B was, or thought she was, in danger whilst trying to help C

(3) B reaosnably, but wrongly, felt responsible for waht happened to C, and what happened was sufficiently serious to make it reasonably foreseeable

(SM) B was present at scene of accident)

(4) B saw waht happened to C and it was so horrific to make it reasonably foreseeable

(SM) A will not have owed B a duty of care, no matter how foreseeable B's psychiatric illness

Alcock v Chief Constable of South Yorkshire (1992)

• most C failed to establish duty of care because not in close and loving relationship (even in the case of a brother)
• Copoc --> lost son and suffered PTSD --> could not establish illness triggered by witnessing disaster unfold or its immediate aftermath --> saw live pictures on TV but these were insufficiently shocking --> did not witness immediate aftermath (only saw son's body the next day)
• Penk --> fiancé killed --> PTSD --> only saw pictures on TV which were insufficiently shocking

McLoughlin v O'Brian (1983)

• C daughter killed and husband and other 2 chidlren injured in car accident
• C at home at time of accident and only told of it 2 hours later
• C driven to hospital where husband and surviving children being looked after
• HL accepted C's subsequent psychiatric illness had been triggered by witnessing 'immediate aftermath' of accident --> 2.5 hours not too long

Frost v Chief Constable of South Yorkshire Police (1999)

• 5 police officers at Hillsborough
• distinguished case from Chadwick based on the lack of physical danger towards the police officers
• dismissed C's claim due to the lack of being in, or thinking they were in, physical danger

Chadwick v British Transport Commission (1967)

• attending survivors of train crash that happened near his house and caused by carelessness of D train company
• C spent 9 hours crawling through wreckage from train crash, trying to get people out from under the wreckage
• D had owed C duty to take care not to cause train crash --> reasonably foreseeable that if such a crash did occur a rescuer like C would suffer psychiatric illness 

Dooley v Cammel Laird & Co Ltd (1951)

• case with crane driver who believes its his fault when rope snaps and heavy load falls onto area where colleagues are working
• C not actually responsible, and luckily no one injured, but C does not know this from where he is in crane
• C developed psychiatric illness --> claim allowed

qualified by CA in Hunter v British Coal Corp (1999)

• coal mine water hydrant case
• claim dismissed --> D had not owed C duty of care not to cause accident that triggered depression because C had not witnessed the accident

W v Essex CC (2001)

• foster child who sexually assaulted the kids in his foster family
• parents sued local authority --> duty of care not to place the boy with them
• HL allowed claim due to parents feeling responsible --> doubt on Hunter case as parents not present as children abused

McLoughlin v O'Brian (1983) --> law does not give rmedies to ordinary bystanders

BUT some Law Lords in Alcock suggested that might be a situation where ordinary bystander could claim compensation for psychiatric injury after witnessing something horrific

Despite this both CA and HL have held that HL in Alcock decded that bystanders cannot claim compensation unless in a 'close and loving relationship' with someone involved in accident

Suggests ordinary bystander will never be able to argue that A owed her a duty of care not to cause the accident

Suggestion that this reading of Alcock is wrong

B foreseeably suffers psychiatric illness because A's actions result in A being killed, or injred, or almost injured

Greatorex v Greatorex (2000)

• C's son driving --> crashed care and injured
• C (fire officer) attended scene --> saw son unconscious, injured and trapped in car
• C developed psychiatric illness
• C sued son for damages
• might expect court to rule in favour of C
• but court ruled no duty of care had been owed for 2 reasons
  • son's 'right to self-determination' would have been unacceptably limited
  • would 'open up the possibility of a particularly undesirable type of litigation between teh family, involving questions of relative fault as between its members'

Psychiatric illness must be in response to what D said rather than the event that D was telling C about --> have to show that

• triggered by insensitive way in which D broke some bad news to her
• triggered by her being misinformed that something bad had happened when it hadn't

AB v Thameside & Glossop Health Authority (1997) --> case of HIV+ warning sent to patients --> claim dismissed but on grounds of there not being breach, rather than there not being duty

Allin v City and Hackney HA (1996) --> C (wrongly) told that her newborn baby had died --> C could sued --> judge did not address whether duty existed but simply assumed it did

Wainwright v Home Office (2004)

• ***** search case
• mother suffered pure distress --> no remedy
• brother suffered psychiatric illness --> but they had touched him so used different tort
• dicta unclear whether brother had a case in negligence
• authors believe he did

B develops psychiatric illness as result of stress created by type of work employers, A, make B do --> Must be reasonably foreseeable but might require even more

Walker v Northumberland (1995) --> social services officer --> claim allowed - crucial point that he had already suffered one nervous breakdown and so reasonably foreseeable that when he came back to work he might suffer another if not given assistance

Hatton v Sutherland (2002) --> if nothing happened before to signal to employer that employee having difficulty coping then will be extremely difficult to prove it was reasonably foreseeable

Courts  increasingly uneasy at idea that employee can demadn to be excused from or given assistance to perform some or all of her contractual duties just becaue it is reaonsably forseeable she might develop a psychiatric illness

Australian case --> employer cannot be liable for psychiatric injury to employee brought about by employee's performance of duties originally stipulated in contract of employment

Unclear if English courts will follow this dicta

D did something that foreseeably might have resulted in C being physically injured, and C develops psychiatric illness as a result of worrying that D's carelessness will result in her being injured in the future

Page v Smith does not apply

C must show D owed her independent duty of care not to act as he did that was geared to protecting her from psychiatric illness --> reasonably foreseeable

Example --> National Human Growth Hormone Programme

Distress that is not consequent on B's being injured or B's property being damaged

Not recognised in English tort law

Hicks v Chief Constable of South Yorkshire (1992) -- any physical injury suffered was suffered at same moment as death -- only loss was the terror suffered -- damages for this form of pure distress were not recoverable in negligence

Vernon v Bosley (No 1) (1997) -- father watched unsuccessful rescue efforts to save his children who were trapped in car in river -- suffered recognised psychiatric illness as result of being on scene of accident -- D owed C duty of care on which he could base claim -- BUT if it had not been a recognised psychiatric illness but just mere grief then it wouldn't have been actionable

Hamilton Jones v David & Snape (2004) -- solicitor firm's negligene led to father being able to obtain passport and leave country taking children with him -- C could sue D for such damages for distress either through claim for breach of contract or in negligence

Possibility that grief is never actionable