Psychiatric Harm Summarised Notes for the Tort Law module, LLB, at City, University of London - can of course be used for other universities as well! Should be used with the full bundle of notes!
Psychiatric damage
Negligently inflicted psychiatric damage – ‘secondary victims’ and ‘primary victims’
‘Secondary’ suffer damage as a result of injury or death of another policy-based restrictions
have applied to limit recognised duties to take care
‘Primary’ suffer psychiatric damage through stress at work and those who are physically
endangered, none of the restrictions apply for primary – other categories are emerging e.g.
where D assumed responsibility for claimant or prior contractual relationship
Rothwell: primary victim claims require degree of control not found in physical injury claims
Psychiatric damage recoverable in tort of negligence
No clear distinction between physical + psychiatric harm:
o Lord Wilberforce: medical science shows physical damage by impact external events on mind
o Page v Smith: injury suffered by claimant (chronic fatigue syndrome ‘ME’) was hard to
categorise as physical or psychiatric hard because of lack of physical causation
Control devices: limit recovery of psychiatric harm
Shock: event brings psychiatric harm is death, injury or endangerment of another claimant will
be owed duty only if harm results from a sudden shocking event (secondary victim case)
oShock is required where claimant fears for their own safety shock not required where
claimant e.g. suffers psychiatric harm through being overworked
oNervous shock reflects medical description of harm, requirement of psychiatric damage must
(at least in secondary cases) be caused by sudden shock (to avoid claims where it is too remote
in time and space from initial accident) + needs to be sufficiently shocking + sudden to cause
foreseeable illness close floodgates of liability
oSecondary victim cases: psychiatric harm caused by shock or mere death distinction irrelevant
o‘Sudden shock’ requirement is a control device
Reasonable fortitude and specific foreseeability: special test for secondary victim cases – but
Rothwell HOL decision may extend to some primary victim cases
o Foreseeability of harm essential to establish duty of care, and harm not too remote from breach
o For psychiatric harm to secondary victim: is it foreseeable of person of ‘ordinary fortitude’ might
suffer psychiatric injury in the circumstances as they occurred?
o 3 departures from normal approach to foreseeability:
(1)Exception to egg-shell skull rule (where D must take victim as he finds them) – in secondary
cases must be foreseeable that a person of ordinary fortitude would suffer psychiatric harm in
the circumstances duty not owed if person of ordinary fortitude might foreseeably suffer
harm in the same circumstances
(2)Psychiatric injury: must be foreseeable (in secondary at least)
(3)Foreseeability assessed in a different way – foreseeability of psychiatric harm in secondary
victim cases judged with hindsight on basis of event as they actually occur (referred as specific
foreseeability), normal approach in negligence is to judge foreseeability at time of negligent
act or omission (foreseeability in practical sense – more moral, what harm would reasonable
person foreseen and guarded against)
oReasonable fortitude, and judgement of foreseeability with hindsight are control devices
oMcLoghin v Jones: neither foreseeability of harm of reasonable fortitude nor specific
foreseeability based on hindsight applicable where pre-existing contractual
relationshipnegligence on part of solicitor led to imprisonment of claimant (was primary case)
oRothwell v Chemical Insulation [2007]: Lord Hoffmann: ‘specific foreseeability’ control device
applies to all psychiatric damage cases, other than cases like Page v Smith + most primary cases
as most turn in any event on foreseeability of psychiatric harm to particular circumstances
, Alcock Criteria: ‘proximity’ restricted to secondary victim cases (primary makes no sense as
concerns nature of relationship with endangered party and shocking event)
o But White v Chief Constable South Yorkshire Police shows cases may be interpreted in different
way – HOL stated additional control devices ‘arbitrary’ cannot be justified by principle
‘Primary victim’ claims
Physical injury accompanied by psychiatric harm: common to recover damages for physical and
mental effects associated with injuries psychiatric can also lead to loss of earnings
Physical endangerment but only harm is done through psychiatric route: endangerment without
physical impact may lead to mental and physical effects claimant physically endangers, illness or
injury from fear or ‘shock’ potentially recoverable
Dulieu v White [1901]: plaintiff (was pregnant) worked in bar, horse-van negligently drove into
building, no physical contact with plaintiff, she became seriously ill and gave birth prematurely, and
baby had developmental problems held claim successful on grounds shock must arise from
reasonable fear of immediate personal injury
Page v Smith [1996]: road accident plaintiff mildly physically endangered but suffered no immediate
physical harm, after accident suffered worsening of symptoms of a pre-existing condition, ‘ME’
issue: could claimant recover for such extreme and unforeseeable mental injuryheld claim
successful personal injury was foreseeable, whether physical or mental, there was no need to
establish that the specific injury is foreseeable, claimant was at risk of some physical injury (today a
primary victim), D takes claimant as they find them foreseeability in practical sense (usual test for
negligence) as test for foreseeability to secondary victims would fail (due to pre-existing illness)
personal injury is foreseeable and duty of care is easily established kind of injury irrelevant
For secondary victim, no chance of physical impact involving claimant only through psychiatric
route, foreseeability of injury by this route must be established
Lord Lloyd stated a party within zone of physical danger is clearly primary victim, but did not say
only such party is a primary victim (can be other ways) ‘involved as participants of events’
Rothwell makes Page v Smith as an authority vulnerable – but can distinguish ‘fear of future’
and ‘fear of impact’ cases
Rothwell v Chemical and Insulating Co [2007]: claimants all developed ‘pleural plaques’ from
occupational exposure to asbestos dust, HOL did not consider to amount to ‘material physical
injury’ anxiety caused by fear of future disease was also not recoverable one claimant, Mr
Grieves, not only suffered anxiety but also anxiety neurosis of prospect of future disease gave rise
to liability if established duty was owed held duty of care not owed fear of future illnesses not
actionable
Lord Hoffman did not distinguish it from cases of risk at work but stress at work requires a
high degree of foreseeability of harm to specific claimant
Control device applicable to psychiatric injury of foreseeability, of reasonable fortitude – applies
to primary victims who are not covered by Page v Smith + ‘specific foreseeability’ hindsight of
specific events would apply given ‘the event actually happened’
‘Stress at work’ cases: not typically involve physical impact, by psychiatric route, claimant not a
secondary victim but described as primary beneficiary of a distinct duty to avoid psychiatric harm
Walker v Northumberland Council [1995]: plaintiff was employed by D as a social services officer,
managed 4 teams with large amount of child car problems, in 1986 plaintiff suffered nervous
breakdown, took 3 months break, agreed get assistant to lessen work but had limited assistance,
, 6months later suffered 2nd breakdown had to leave work permanently held employer owed a duty
to take reasonable steps to avoid exposing an employee to health endangering workload, duty not
breached first breakdown as unforeseeable, but breached at second breakdown
Hatton v Sutherland [2002]
Conjoined appeals for workplace stress against employers, following requirements established:
Mental injury must be a result of something beyond usual stresses and strains of the job; an
employer may assume an employer can cope with their job; an employer must have known of the
circumstances; must be reasonably foreseeable and breach of employer’s duty
Held there had been no breach of duty – 1 claimant appealed in Barber v Somerset Council
Guidelines from Hatton v Sutherland
(1) No special control mechanisms for claims for psychiatric (or physical) illness or injury from
stress of doing work employee is required to do
(2) Harm to particular employee was reasonably foreseeable injury to health due to stress
(3) Foreseeability depends on if employer knows (or ought to reasonably know) about individual
employee employer usually entitled withstand normal pressure of job unless vulnerability
(4) Test same whatever the employment none regarded as intrinsically dangerous to health
(5) Factors of threshold Q: nature + extent of work done by employee, is work intellectually or
emotionally demanding, are demands unreasonable to comparable jobs or signs of other doing
this job suffering harmful stress, level of sickness/absenteeism, any vulnerability, have they
already suffered illness from stress of work, for duty must be plain to any reasonable employer
to do something about it, costs of preventing harm, resources of employer, employer who
provides advice with counselling/treatment services unlikely to be found in breach, claimant
must show breach of duty or materially contributed to harm suffered, when harm suffered
employer should only pay for proportion of harm suffered
Dickins v 02 Plc [2008]: vulnerable personality + problematic relationship with partner
damage should NOT be apportioned between tortious and non-tortious causes indivisible
Contractual relationships (beyond employment cases)
Other cases claimant primary victim in absence of physical danger
Leach v Chief Constable of Gloucestershire [1999]: police asked plaintiff, a volunteer worker on a
youth homelessness project, to act as ‘appropriate adults’ during interviews of a suspect (in
accordance with Codes of Practice – required a person to be present if suspect mentally
disordered), West was a serial killer, plaintiff claimed she was not warned of this, was offered no
counselling until after West committed suicide in custody + was told falsely she would not need
to give evidence to court PTSD held duty provide counselling + false assurances
Different kinds of cases: like Page v Smith (suffer psychiatric illness from own imperilment), or
reasonable fear of danger to themselves, or physical injury/imperilment to third party by D
Attia v British Gas Plc: plaintiff suffered reasonably foreseeable psychiatric illness as she
witnessed her house burn down from Ds negligence court not strike claim out to trial
Law Commission identified a miscellaneous group of cases negligently inflicted mental illness
e.g. patient suffered illness from negligent treatment
X v Bedfordshire Council [1995]: prisoner suffers psychiatric illness from ill-treatment by officers
Recipients of distressing news suffer foreseeable illness where news is insensitive
Swinney v Chief Constable Northumbria Police [1997]: plaintiffs, wife + husband, suffered
psychiatric harm as threatened with violence + arson after confidential information was furnished
by first plaintiff to police were stolen from a police vehicle allowed trial as police assumed
responsibility for first plaintiff
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