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Liability for psychiatric illness - lecture notes
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Liability for Psychiatric HarmLiability for negligently inflicted personal injury most often psychiatric harm or also
physical injury; cases in this area are linked by harm/injury that was caused by shock.
Although most claims in this area are to do with damage caused by shock, the same rules
would apply if a C suffered a heart attack or stroke or any other physical condition that
also might be caused by shock
Claims in tort for negligently caused psychiatric illness have their own set of rules which
must be followed before a valid claim can be made.
Looking at the law of negligence in particular kinds of claims.
The modern law in relation to ‘pure’ psychiatric harm are complex and arbitrary- the way
they draw distinction between different C- and reflect continuing judicial scepticism about
the validity of claims for psychiatric illness.
Courts use term ‘nervous shock’ – this is a legal term; had no medical meaning
- Court shock is old terminology
Many ‘nervous shock’ cases focus on whether the defendant owed the claimant a duty of
care; a DOC is often what the parties are in dispute about. However, it is important to
remember that a claimant cannot win a negligence case simply by establishing that the
defendant owed him a duty of care. C will have to prove all the other principles for a
regular claim in negligence.
There isn’t always a DOC to avoid causing reasonably foreseeable psychiatric harm caused
by shock; whether there is or not depends on the rules laid out in Alock.
Emotional distress is compensatable where the claimant has sustained physical injuries, and a
court will deal with it through the award of non-pecuniary damages for pain and suffering.
However, to recover damages for mental harm in the absence of physical harm, ‘the
plaintiff must have suffered psychiatric injury in the form of a recognised psychiatric
illness’ (White v Chief Constable of South Yorkshire [1998] 3 WLR 1509, 1518, per Lord
Goff).
- Suffering a heart attack after a shocking event is straight forward but if someone is
upset after a shocking event the courts will consider if they suffered psychiatric injury
in the form of a recognized psychiatric illness
What is psychiatric harm? The definition of psychiatric harm as applied by the legal system
today is derived from the case of McLoughlin v O’Brian [1983] 1 A.C. 410. A claimant
seeking damages for psychiatric injury must establish that he or she is suffering ‘not
merely grief, distress or any other normal emotion, but a positive psychiatric illness’ (at
431).
- Mere distress is not something the courts recognized as psychiatric illness that you
can get compensation for
, The modern rules in this area were laid down by the House of Lords in Alcock v Chief
Constable of South Yorkshire [1992] 1 AC 310. English law draws a fundamental and highly
contentious conceptual distinction between ‘primary’ victims and ‘secondary’ victims of
pure psychiatric illness. The law suggests some people are more closely involved to
incidents than others, that being primary victims.
Primary victims are people directly involved in the event
Secondary victims are people indirectly involved
The significance of primary and secondary victims is whether the C owed them a duty of care
A defendant always owes a duty of care to a ‘primary’ victim, as long as some form of
personal injury was reasonably foreseeable (Page v Smith [1996] AC 155).
- D said it was not reasonably foreseeable to him that if he crashes the C chronic
fatigue syndrome would come back
- Courts established that as long as some form of personal injury was reasonably
foreseeable then there was a duty of care
- The duty in this case was owed because any kind of personal injury is foreseeable if
the D crashes. The particular syndrome in this case does not have to be foreseeable.
However, a defendant does not owe a ‘secondary victim’ a duty of care unless the claimant
establishes that psychiatric illness was reasonably foreseeable and passes various
‘control mechanisms’ outlined in Alcock.
- Basically, a series of hurdles that the C must overcome in order to prove they were
owed a duty of care
- In Alcock, 96 people died and many were injured as a result of overcrowding at a
football game
- Overcrowding was because of the negligence of the police officers in charge at the
game
- Alcock was many different claims brought by friends and family of people who died
in the disaster
- Some of the C saw the disaster live on TV and some heard of the events but later saw
it on tv and some actually saw it because they were there but they were far away
sitting at different grounds
- What all the claimants had in common was that they all saw either friends or family
members being crushed to death; witnesses not victims
- All the claims failed because the courts said in order to pass the test they have to
show:
1. They were especially close to the primary victims: love and affection
2. What they saw with their own eyes or heard and that what they experienced
was basically the equivalent of being at the disaster and experiencing what
was going on
- Rules that were laid out for C to win was that they had to actually be there to see the
accident or its immediate aftermath. Not just hear about it or see it on tv or see it from
far away grounds
- Alcock is important because it draws distinction between primary and secondary
victims and made it difficult for secondary victims claims to be successful by
laying out series of test they had to pass to prove the D owed a duty
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