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Psychiatric Harm
Restrictive attitude to psychiatric harm – NB Negligence and Damages Bill in Parliament atm which proposes to get rid of shock mechanism (though poor chance of success)
Medically recognised illness
Hicks v Chief Constable of West Yorkshire
Held: distress, annoyance and inconvenience and other symptoms short of personal injury do not confer a cause of action in negligence
Nervous Shock
Alcock
Hillsborough disaster victims’ relevative claimed for damages
Held: the claimants were not primary victims so the claimed failed.
Lord Oliver established the categories of victims:
Primary victims
Secondary victims
Rachel Muleron: notes difficulties in the lack of coherent definition of these two categories
Lord Phillips CJ “no magic in this terminology”
Primary victims
Factors establishing primary victimhood:
Direct involvement in the incident
Someone exposed to physical danger
Someone who reasonably believed they were involved in physical danger
A primary victim must be within the ‘zone of physical danger’
White v Chief Constable of South Yorkshire
Claims from police officers, some of whom were at the time off-duty, involved in the aftermath of the Hillsborough disaster suffering psychiatric harm. Claimed to be rescuers (who were considered primary victims).
Held: (HL) no special rules for rescuers – will only accede to primary victimhood if they were or believed that they were exposed to physical danger. There were strong reasons for uniformity with the other cases where liability was not found, however
Lord Steyn’s policy reasons for a restrictive understanding:
Floodgates
Psychiatric evidence is complex to prove
Over liability of defendants
Unconscious disincentive to recovery
W v Essex CC
Foster parents requested that the local Council did not put any child with them that might abuse their existing child. Council put a child with them who was suspected of being abusive & abused the child. Parent claiming psychiatric harm as a result of finding out what had happened
Held: in order to accede to primary victim status, the original requirement of physical danger could be stretched as it was still developing as a category: HL found that the guilt of the parents could be enough to evidence direct involvement in the incident – if they was unwilling participation to the event
Adds the factor:
Unwilling participation
Farrell v Avon HA
Dead baby given to father who was then informed real son was alive – claiming PTSD
Held: a primary victim despite absence of risk of physical injury
The judge referred to “common sense” and the principle in W v Essex as to unwilling participation in justifying this
Dulieu v White
Horse drawn cart smashed through wall of pub causing the pregnant bar lady to fear for her life & then give birth to ‘an idiot’ 9 days later
Held: nervous shock resulting from a reasonable fear of physical harm
Kennedy J: “The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury”
Page v Smith
Car crash caused claimant’s chronic fatigue syndrome to become reinstated
Held: he was a primary victim as he would reasonably have believed that he might suffer physical injury as a result of the crash. Established ‘zone of danger’ rhetoric. The type of harm didn’t need to psychiatric specifically; foresight of physical harm will extend to the reasonable foreseeability of psychiatric harm
Lord Lloyd solidified distinctions of Lord Oliver’s categories in Alcock as establishing risk of physical injury as a prerequisite of primary victimhood
Darryl Allen: points out that this is a mistaken summary of Lord Oliver’s dicta – he was in fact only referencing categories in the negative, by saying the present victim could not be considered a primary one. The prerequisite nature of physical injury was not established
Bomedien v Delta Display
Debris hitting house as the mechanism of nervous shock in the apprehension of physical harm
Held: successful claim
Rescuers
Chadwick v BTC
Big train crash near where claimant lived & he volunteered to help in the aftermath, suffering psychoneurosis as a result
Held: the causers of the crash would reasonably have foreseen that rescuers would come & therefore they owed a duty of care to rescuers. Where an accident is particularly horrifying & the rescuer involved in the immediate aftermath there may be a duty to rescuers.
Waller J: emphasised the horror of the accident & not fear for personal safety as the overarching cause of psychiatric harm here – also called into question the ‘normal citizen’ guideline: some people are more inclined to stress than others
Post-Alcock: Lord Steyn distinguished this as here the...
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