The Concept of Psychiatric Injury and Compensation

Author: Ibrahim Kaunda, Masters of Law and Legal Practice Course at the University of Law in London, 2022-2023.

Editor: Danai Daisy Chirawu, Erasmus Mundus Joint Masters in Human Rights Policy & Practice (2021-2023), The University of Gothenburg, University of Deusto, University of Roehampton & The Arctic University of Norway, Bachelor of Laws (With Honours) (LLBS) (2012-2016) – the University of Zimbabwe.

Abstract

The concept of psychiatric injury and compensation has taken an uncertain path. It has been criticized by practitioners, academicians, and the public at large. The way the judgments have been passed in this area of law has been in many cases not forming stable precedents. Similar cases have been given different judgments making the principle of precedent uncertain.

Introduction

The law of tort dwells much on compensating through damages or redressing the injury suffered by an innocent party due to the negligence of the other. The negligence of the wrongdoer results from actions as well as omissions. The injury includes physical, mental (psychiatric) as well as economic harm. However, for one to be responsible for the injury suffered, there must be a duty of care owed by the wrongdoer to the injured party, and the duty of care which is not too remote has been breached and ended up causing damage to the claimant. This was emphasized in the case of Caparo Industries v Dickman [1990] in which the House of Lords established that for the duty of care to exist, three conditions must be met: 1. that it was reasonably foreseeable that the defendant’s failure to take care could cause damage to the claimant, 2. that there was a relationship of proximity between the claimant and the defendant and 3. That it is just and reasonable that the law should recognize a duty on the defendant to take reasonable care not to cause that damage.

for a duty to arise, three factors had to exist, namely: (1) a sufficient degree of proximity in the relationship between the parties; (2) the knowledge that the report would be communicated to the shareholder or investor in connection with a particular transaction in the contemplation of the parties, and (3) the shareholder or investor would place reliance on the report when deciding whether to enter into the relevant transaction[1]

Psychiatric Injury

The psychiatric injury also known as nervous shock falls under personal injury as described in The Law Reform (Personal Injuries) Act 1948 which says: “In this Act, the expression “personal injury” includes any disease and any impairment of a person’s physical or mental condition, and the expression “injured” shall be construed accordingly”[2]. It is also a basis of discussion in this assignment, which is when the harm has occurred that affected one’s psychology (mind), sometimes it accompanies the physical injury and in this situation, there is not much difficulty to establish the duty of care in relation to psychiatric harm. However, the problem to establish liability in relation to psychiatric harm appears where the harm comes on its own due to experiencing someone’s involvement in an accident or observing a disaster happening and not actually being a victim of the accident. Before, the law was reluctant to allow recovery for psychiatric harm because: 1. there was a general lack of awareness or understanding of how the mind worked; 2. it was believed that psychological harm was fraudulently claimed; 3. a policy concern that this would open to unnecessary and exhaustive claims i.e. ‘floodgates’. For this purpose, the courts have put in place controlling factors as to who can successfully claim psychiatric harm. It was held in the case of Hinz v Berry (1970) that:

No damages can properly be awarded for grief or sorrow caused by a person’s death nor can they properly be awarded to a spouse for the worry about her children following her other spouse’s death nor for the financial strain and stress nor the difficulties of adjusting to a new life.[3]

And mere grief anxiety or distress was held not to be enough to prove psychiatric harm. Lord Bridge of Harwich held that:

It is perfectly clear law that fears by itself, of whatever degree, is a normal human emotion for which no damages can be awarded. Those trapped in the crushes at Hillsborough who were fortunate enough to escape without injury have no claim in respect of the distress they suffered in what must have been a truly terrifying experience. It follows that fear of impending death felt by the victim of a fatal injury before that injury is inflicted cannot by itself give rise to a cause of action which survives for the benefit of the victim’s estate.^[4]

For that reason, the courts have put a distinction by categorising the claimants in psychiatric harm as primary and secondary victims. The primary victim is the one directly involved in the accident and within the range of foreseeable physical injury and the secondary victim is not really involved in the accident but just in the position of spectator or bystander.

Primary and Secondary Victim Distinction

In Primary victim; there is no policy to limit the number of claimants, the only harm to be foreseeable is physical but not psychiatric and also no need to establish the fact that an ordinary person would not have suffered the injury incurred by the claimant as the requirement is a “thin skull rule” that defendant must take his victim as he finds him. Lord Lloyd established that:

Once it is established that D is under a duty of care to avoid causing personal injury to P, it is unnecessary to ask whether D should have reasonably foreseen injury by shock and instead, it is sufficient to ask whether D should have reasonably foreseen that P might suffer personal injury as a result of D’s negligence[5]

And in relation to self-inflicted harm, a primary victim does not owe any duty of care to a secondary victim. Cazalet J established that:

Where a family member suffers psychiatric harm as a result of the self-inflicted injuries of another family member, the psychiatric illness in itself may well have an adverse effect on family relationships which the law should be astute not to exacerbate by allowing litigation between those family members. In my judgment, to permit a cause of action for purely psychiatric injury in these circumstances would be potentially productive of acute family strife[6]

While a claim from a secondary victim, a policy is used to limit the number of claimants. The claimant can only succeed for pure psychiatric harm so long as he suffers a recognized psychiatric illness which is reasonably foreseeable in a person of ordinary fortitude in the same circumstances. In Bourhill v Young, the claim by a woman who gave birth to a stillborn child after experiencing a motorcycle accident was rejected on the basis that the harm was not foreseeable i.e. to say she was not in physical danger. The court held that:

having regard to the pursuer’s position on the road, the cyclist’s duty towards persons on the road to drive carefully did not extend to her, in the respect that he could not reasonably have anticipated that she could be injured in any way by his carelessness, and, accordingly, that, in a question with her, he had not been guilty of negligence, and that his estate was not liable in damages for the injury which she had sustained.[7]

And the victim must meet the following requirements:

“(1) the plaintiff must have close ties of love and affection with the victim.

(2) The plaintiff must have been present at the accident or its immediate aftermath.

(3) The psychiatric injury must have been caused by a direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else. It was established by the House of Lords:

To establish a claim for psychiatric illness resulting from the shock it was necessary to show that the injury was reasonably foreseeable and that the relationship between the plaintiff and defendant was sufficiently proximate. The proximation did not depend on there being particular relationships such as husband and wife, but was based on ties of love and affection, the closeness of which needed to be proved in each case. Remoter relationships needed careful scrutiny. A plaintiff had to show propinquity in time and space to the accident or its immediate aftermath, and (2) in the case of Ps present at the match, the mere fact of the relationship was insufficient to give rise to a duty of care; and the viewing of the event on television was not equivalent to being within sight and hearing of the event or its immediate aftermath[8]

While in the case of Mcloughlin v O’Brian, the claim was successful for a plaintiff who suffered the shock two hours after the accident happened when she arrived at the hospital and see her husband and children who were bruised and looked upset. The court held that:

The test of liability for nervous shock is the ordinary test of reasonable foreseeability. If it was reasonably foreseeable that M would suffer nervous shock, even though nowhere near the scene of the accident, she was entitled to recover. In considering the question of reasonable foreseeability there are no legal limitations of time, space, distance, nature of injuries, or the relationship of the victim to the plaintiff[9]

The Elements of Policy Restrictions

As discussed above, the court’s policy to restrict claims from secondary victims includes:

Relationship with the immediate victim: That is, there must be close ties of love and affection between the claimant and the primary victim. However, as long as it is reasonably foreseeable by a defendant, there is no clear list as to which category of relationship can succeed in the claim. It is just a presumption that as in the case of spouses, parents, and children, and can be rebutted should the defendant prove otherwise. Lord Oliver held that:

My Lords, speaking for myself, I see no logic and no virtue in seeking to lay down as a matter of “policy” categories of relationship within which claims may succeed and without which they are doomed to failure in timing. So rigid an approach would, I think, work great injustice and cannot be rationally justified.[10]

And some bystanders with no relationship with the victim can succeed where the circumstances seem to be Horrific but no clear definition has been given as to what is horrific.

Means of causing and communicating the shock: The harm must be as a result of shock and not the continuous process of responding to the event. Shocks sustained by the television pictures and radio broadcasts cannot succeed in claims. It was held that:

Even where the nervous shock and the subsequent psychiatric illness caused by it could both have been reasonably foreseen, it has been generally accepted that damages for merely being informed of, or reading, or hearing about the accident are not recoverable[11]

Proximity in time and space: As the requirement set in the case of Alcock above that the plaintiff must have been present at the accident or its immediate aftermath, this is furnished by physical and temporal propinquity together with the sudden and visual impression. Lord Oliver said:

The necessary element of proximity between plaintiff and defendant is furnished, at least in part, by both physical and temporal propinquity and also by the sudden and direct visual impression on the plaintiff’s mind of actually witnessing the event or its immediate aftermath[12]

However, there are other categories that fit neither in the primary nor secondary victims’ categories but still suffer psychiatric harm and these are in the categories of Rescuers, involuntary participants, Communicators of shocking news, self-harm by the defendant, and the assumption of responsibility.

RESCUERS: Rescuers are those who help those involved in an accident but not actually themselves involved in the accident neither witnesses but participants who try to save accident victims. Before, the courts considered them as belonging to the primary victim category and allow their recovery only where they are at a proximity risk of physical injury. However, they were more favoured in the consideration that their actions are more important because they are risking their lives to save other lives, their actions are not intervening nor contributory negligent and so the defendants are also held to owe a duty of care to those who attempt to rescue others. It was held in the case of Ogwo v Taylor that: “A person who negligently created some peril to the life or safety of others owed a duty to a third person who, acting reasonably, came to the rescue to deal with the emergency”[13]
INVOLUNTARY PARTICIPANTS: This category of claimants are those who fear and developed psychiatric which resulted from their actions, e.g. in the case of Dooley v Cammell Liard & Co Ltd[14], the plaintiff, a crane driver successfully claimed for psychiatric harm suffered in fear of harming other people on his duty due to the defendant’s negligent.
COMMUNICATORS OF SHOCK: Generally, the communicators of shocking news owe no liability unless it is false and intended to shock or harm the claimant. In the case of Wilkinson v Downton[15], the defendant was held liable for the shock caused by his false representation of the plaintiff’s husband’s involvement in an accident. And in the case Farrell v Avon the plaintiff succeeded in the claim for the harm suffered as a result of the mistaken information about the death of his newborn son.
SELF-HARM BY THE DEFENDANT: Based on public policy that a person has the freedom to incur personal risk, the courts have held that no duty of care is owed to the plaintiff of psychiatric harm where the harm is as a result of the defendant’s self-inflicted harm. In Greatorex v Greatorex[16] psychiatric harm claim against the son’s negligent driving failed because the injuries were self-inflicted.
ASSUMPTION OF RESPONSIBILITY: Where one assumes a responsibility e.g. employer and employee, doctor and patient, bookmaker and gambler, police and police informant and prison officer and prisoners, they have a duty of care not to cause psychiatric harm to the claimants. It was held in the case of Walker v Northumberland that: “An employer’s duty to take reasonable care to provide his employee with a safe system of work and take reasonable steps to prevent him from risks which are reasonably foreseeable extended to risks of psychiatric illness”

Is the Law of Psychiatric Harm Entirely Satisfactory or Logically Defensible?

However, this distinction is not clear and certain especially how the courts categorize the primary and secondary victims as to who can succeed in the claims, hence the statement by Lord Oliver that: “I cannot, for my part, regard the present state of the law as either entirely satisfactory or as logically defensible”[17], generally speaking, it is argued and criticized by both academic commentators and judges that the law in psychiatric harm claims is not satisfactory neither is it defensible as to why the rules that apply to psychiatric illness differ from those that apply to physical harm liabilities. Lord Hoffmann in White said that: ‘the search for principle’ in this area of law has been ‘called off’. While Lord Steyn in the same case described the law as a patchwork quilt of distinctions as he said:

My Lord, the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions that are difficult to justify. There are two theoretical solutions. The first is to wipe out recovery in tort for pure psychiatric injury. The case for such a course has been argued by Professor Stapleton. But that would be contrary to precedent and, in any event, highly controversial. Only Parliament could take such a step. The second solution is to abolish all the special limiting rules applicable to psychiatric harm[18]

There is a problem and lack of precision to clearly categorise the secondary and primary victim, some cases are not fit into either category e.g. in the case of AB v Leeds Teaching Hospital NHS Trust[19], the psychiatric harm claim failed as it was not possible to establish foreseeability of the harm although the claimant suffered psychiatric harm. In Bourhill v Young, the claim by a woman who gave birth to a stillborn child after experiencing a motorcycle accident was rejected on the basis that the harm was not foreseeable i.e. to say she was not in a physical danger. But the claim was accepted in the case of McLoughlin v O’Brian where a woman was shocked by seeing her husband and children upset and bruised two hours after the occurrence of the accident.

As already discussed above the primary victim’s foreseeability requirement is only in physical harm, in analysing the case of Page v Smith, Stephen Bailey and Donal Nolan pointed out that

Psychiatric injury and physical injury should be regarded as different types of damage for foreseeability purposes so that in all primary victims’ cases it should be a requirement of recovery that psychiatric injury was reasonably foreseeable in a person of ordinary fortitude unless the defendant knew or should have known of the claimant’s particular susceptibility[20]

Mostly these distinctions are based on the case’s practical and judged on a case-by-case analysis. In its report, the law commission recommended that the courts should not look into the practical importance of the cases for deciding the categories in the psychiatric claims.

Although a legislative provision on this would not be appropriate, we tend to the view that the courts should abandon attaching practical significance, in psychiatric illness cases, to whether the plaintiff may be described as a primary or a secondary victim[21]

The three requirements for a successful claim by a secondary victim namely: relationship with the immediate victim, proximity in time and space and the means of communicating the shocking incident, these requirements have also faced widespread criticisms. As described in the case of Alcock above, the secondary victim to succeed in the claim, must be closely related to the accident victim. However, this is not conclusive as it is decided on a case-by-case basis and also it is rebuttable if the defendant proves otherwise. For example, in relation to the love and affection relationship, in restraint of tort, Jane Stapleton in Peter Birks edition said that:

At present, claims can turn on the requirement of ‘close ties and affection’ is guaranteed to produce outrage. Is it, not a disreputable sight to see brothers of Hillsborough victims turned away because they had no more than brotherly love towards the victim? In future cases will it not be a grotesque sight to see relatives scrabbling to prove their special love for the deceased in order to win monetary damages and for the defendant to have to attack that argument?[22]

The law commission in the report released in 1998, made a recommendation that the list of relationships has to be extended to include other groups like cohabitees and siblings.[23] This recommendation proves that the current law in this area is not satisfactory and needs improvement.

In relation to proximity in time and space, it is not clear how long the aftermath and immediacy constitute sufficient reason for a successful claim, as we have seen in other circumstances. In Mcloughlin, after 2 hours to witness the accident was enough to accept the claim while the 8 hours in Alcock were said to be too late. And in Galli v Seghal in accepting the appeal, the court held that:

The aftermath of an accident could be made up of a number of components, provided that the events alleged to make up the aftermath retained sufficient proximity to the accident, Mcloughlin followed. In this case, the immediate aftermath extended from the moment of the accident until the moment when G saw and held L’s body in the mortuary.[24]

The requirement that the injury must be as a result of shock and not as a result of a continuous process, is also not conclusive as we have seen in some cases the claim being accepted despite that it was not as a result of shock e.g. in North Glamorgan NHS Trust v Walters[25] a mother succeeded in a psychiatric harm claim as a secondary victim which came as a result of observing her child’s 36 hours struggle to death that occurred as a result of wrong diagnosis. The court held that the period was a single horrifying event.

In the law society Gazette it has been written that the law in relation to psychiatric harm has to change, that is to say, that following the leading case of Alcock, things have changed in terms of the understanding of psychiatric injury, and the recognition of personal relationships. Calling for reform to the law relating to psychiatric harm, in her Article, Rachel Rothwell in this gazette, made the following three points:

Firstly, the requirement of a relationship with the victim means that, for example, unmarried cohabiting couples and same-sex partners must go through the intrusive ordeal of proving their relationship, to the person responsible for the accident. The second area ripe for reform is the current requirement for there to be a ‘shocking’ event before a claim can be made. This would then encompass events that might take place over a period of time but are no less horrific The third aspect where there is a strong case for change is the requirement for the claimant to be ‘close in time or space’ to the incident, and to have perceived the death or injury through their own senses. It is hard to see the justification for this, and APIL wants it scrapped[26]

The law commission in the report released in the year 1998, in its final recommendation in this area of law, recommended that the most important part of the proof in the claim of psychiatric harm is the close tie relationship of the claimant and the accident victim and the other two requirements set in Alcock are not important. It was said that:

There should be legislation laying down that a plaintiff, who suffers a reasonably foreseeable recognisable psychiatric illness as a result of the death, injury or imperilment of a person with whom he or she has a close tie of love and affection, should be entitled to recover damages from the negligent defendant in respect of that illness, regardless of the plaintiff’s closeness (in time and space) to the accident or its aftermath or the means by which the plaintiff learns of it.[27]

In their comment about the law of psychiatric harm, particularly in relation to rescuers, Barbara Harvey and John Marston in their book ‘Cases and Commentary on Tort’ wrote:

There does not seem to me to be any logical reason why the normal treatment of rescuers on the issues of foreseeability and causation should lead to the conclusion that, for the purpose of liability for psychiatric injury, they should be given special treatment as primary victims when they were not within the range of foreseeable physical injury and their psychiatric injury was caused by witnessing or participating in the aftermath of accidents which caused death or injury to others [28]

Conclusion

Following the discussions above, it is clear that the law of psychiatric harm has taken a wrong path and needs to be reformed. It is not certain and cannot be clearly defended nor is it predictable to be clearly depended on or to give satisfaction as we have seen some cases accepted while others of similar facts rejected. It is therefore for that reason I would like to agree with Lord Oliver that: “I cannot, for my part, regard the present state of the law as either entirely satisfactory or as logically defensible”

Bibliography

Statutes

The Law Reform (Personal Injuries) Act 1948

Cases

Caparo Industries v Dickman [1990] 2 AC 605

Hinz v Berry[1970] 2 QB 40

Hicks and Others v Chief Constable of the South Yorkshire Police[1992] P.I.Q.R. P433

Page v Smith [1996] AC 155

Greatorex v Greatorex [2000] 1 WLR 1970

Bourhill v Young 1942 SC (H.L.)

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

McLoughlin v O’Brian [1983] 1 AC

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 415

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 400

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 416

Ogwo v Taylor [1987] 2 WLR 988

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep. 271

Wilkinson v Downton [1897] 2 QB 57

Greatorex v Greatorex [2000] 1 WLR 1970

Alcock v. Chief Constable of S. Yorkshire [1992] 1 AC 418

White and Others Respondents v Chief Constable of South Yorkshire Police and Others Appellants[1999] 2 AC 455

AB v Leeds Teaching Hospitals NHS Trust [2004] EWHC 644 (QB

Galli-Atkinson v Seghal [2003] EWCA Civ 697

North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792

Articles

Stephen Bailey & Donal Nolan, ‘The Page v Smith saga: a tale of inauspicious origins and unintended consequences [2010] PI

The Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998) Para 5.54

Jane Stapleton, ‘in Restraint of Tort’ in Peter Birks (edn) The frontiers of Liability: Vol 2 (OUP, 1994)

The Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998) Para 6.29 and 6.30

Rachel Rothwell, ‘Why the law on psychiatric harm must change’ The Law Society Gazette

The Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998) Para 8.9 (11)

Barbara Harvey & John Marston, ‘Cases and Commentary on Tort’

Reports

Citation

[1] Caparo Industries v Dickman [1990] 2 AC 605

[2] The Law Reform (Personal Injuries) Act 1948 s 3

[3] Hinz v Berry[1970] 2 QB 40

[4] Hicks and Others v Chief Constable of the South Yorkshire Police[1992] P.I.Q.R. P433

[5] Page v Smith [1996] AC 155

[6] Greatorex v Greatorex [2000] 1 WLR 1970

[7] Bourhill v Young 1942 SC (H.L.)

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

[9]McLoughlin v O’Brian [1983] 1 AC

[10] Alcock v Chief Constable of South Yorkshire [1992] 1 AC 415

[11] Alcock v Chief Constable of South Yorkshire [1992] 1 AC 400

[12] Alcock v Chief Constable of South Yorkshire [1992] 1 AC 416

[13]Ogwo v Taylor [1987] 2 WLR 988

[14] Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep. 271

[15]Wilkinson v Downton [1897] 2 QB 57

[16] Greatorex v Greatorex [2000] 1 WLR 1970

[17] Alcock v. Chief Constable of S. Yorkshire [1992] 1 AC 418

[18]White and Others Respondents v Chief Constable of South Yorkshire Police and Others Appellants[1999] 2 AC 455

[19] AB v Leeds Teaching Hospitals NHS Trust [2004] EWHC 644 (QB)

[20] Stephen Bailey & Donal Nolan, ‘The Page v Smith saga: a tale of inauspicious origins and unintended consequences’ [2010] PI

[21] The Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998) Para 5.54

[22] Jane Stapleton, ‘in Restraint of Tort’ in Peter Birks (edn) The frontiers of Liability: Vol 2 (OUP, 1994)

[23] The Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998) Para 6.29 and 6.30

[24] Galli-Atkinson v Seghal [2003] EWCA Civ 697

[25] North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792

[26] Rachel Rothwell, ‘Why the law on psychiatric harm must change’ The Law Society Gazette

[27] The Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998) Para 8.9 (11)

[28] Barbara Harvey & John Marston, ‘Cases and Commentary on Tort’

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