Summary
Summary Injuries caused by Psychiatric Injury and Nervous Shock
- Module
- Tort Law (LAWW2017)
- Institution
- The University Of Nottingham (UON)
Topic 5 of Tort law. Used by a 1:1(1st) student
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Negligence: Psychiatric Harm and Nervous ShockThe Development Of The Law
Victorian Railway Commissioners v Coultas (1888) 13 App Cas 221, PC
o Defendant negligently opened level crossing gates when unsafe, car crossed; accident avoided.
Passengers in car very frightened, do duty owed via the Privy Council as injury caused by shock was
not foreseeable.
Dulieu v White & Sons [1901] 2 KB 669
o Horse and cart negligently driven into pub, claimant serving behind bar, claimant scared of injury to
herself, but not physically harmed, caused premature labour, good claim can be brought in
negligence. High Court sides with the claimant.
Hambrook v Stokes [1925] 1 KB 141
o Woman sees lorry rolling down a hill, informed that the lorry had hit a child matching the description
of her daughter who she had just left on the hill. Woman suffers miscarriage due to fear of injury to
the child, with the baby dying a few months later, and she has a good claim. The Court of Appeal sides
with the woman, as somebody in the position of the claimant if they saw someone close to them
injured by the actions of the defendant
Bourhill v Young [1943] AC 92
o Duty of care owed to those who it was foreseeable negligence would injure, Bourhill not in area of
danger so injury not foreseeable, therefore, no duty owed. Bourhill suffered a miscarriage as a result
of the event, also.
o An initial control mechanism: Foreseeability of recognised psychiatric injury
o Drawing on the duty formulation in Donoghue v Stevenson
o Bourhill: “the careless driver should have foreseen the likelihood of actual or apprehended
injury to anyone in the street down which the lorry might run and the possibility of illness
being produced in a mother from fear that the run-away car would injure her children”
o “I cannot accept that John Young could reasonably have foreseen, or, more correctly, the reasonable
hypothetical observer could reasonably have foreseen, the likelihood that anyone placed as the
appellant was, could be affected in the manner in which she was.” (Lord Wright, 111)
o “the appellant must still show that the cyclist should reasonably have foreseen emotional injury to her
as a result of his negligent driving, and, as I have indicated, I do not think she has done so” (Lord
Porter, 119)
Definition of ‘psychiatric illness’:
There is a distinction between medically recognised psychiatric illness, and claims of grief, sorrow,
and distress. There latter 3 have no remedy in the eyes of the law, but in successful psychiatric
illness cases, claimants must establish a medical condition, such as ‘PSTD’, ‘organic depression and a
change of personality’, or ‘pathological grief disorder’. Whilst the law recognises these as just as
serious as physical injuries, the policy limitations reduce the circumstances in which they can give
rise to compensation claims. Until recently, psychiatric illness claims were described as ‘nervous
shock’ claims, whereby only ‘sudden shock’ of a specific, single event that caused psychiatric illness
would see the court entertain a claim.
In the modern day, an element of ‘sudden shock’ remains an ingredient of the cause of action.
Prolonged exposure to distressing circumstances culminating in psychiatric illness will have no cause
of action. One a claimant has demonstrated they are suffering from an actionable psychiatric illness,
there are still further hurdles to cross.
,Just like in pure economic loss, duty of care is the mechanism to control the scope of liability. The
hurdles’ nature depends on the type of situation causing psychiatric illness.
Types of claimant:
There are categories of claimant in psychiatric illness cases (due to White v Chief Constable of South
Yorkshire):
Physical injury by defendant’s negligence causing psychiatric illness
Put in physical danger, but only suffer psychiatric illness (primary victim)
Not in physical danger, but suffer psychiatric illness due to witnessing death, injury, or
imperilment of another person (immediate victim) with whom they have close relationship
of love and affection (secondary victims)
A fourth category regarding those who suffer psychiatric illness as a result of witnessing destruction
of property could exist too, with Attia v British Gas Plc succeeding in this. However, with this
happening in the 1980s when the duty of care in negligence was being expanded, and so in modern
rules it is uncertain whether it would be followed.
Historical development:
The Old Law:
19th century psychiatric illness claims were slow to be recognised, exemplified by the Privy Council in
Victorian Railway Commissioners v Coultas (1888) 13 App. Cas. 222. D’s gatekeeper carelessly
allowed the plaintiffs to drive over a level crossing a train was about to pass. No physical injury
occurred, but the plaintiff feared for her life, and suffered severe shock.
The Privy Council denied there could be liability for psychiatric illness in the absence of physical
injury and said allowing psychiatric liability would lead to large numbers of ‘’imaginary claims’.
Lord Hoffman explained in White v Chief Constable of South Yorkshire [1999] that the Privy Council’s
restrictive approach was due to the evidential difficulty in deciding psychiatric illness cases when, so
little was known about the mind.
The ‘impact theory’:
In 1901, Dulieu v White & Sons saw the court take a more liberal approach. A negligently carriage
driver crashed into a pub where a pregnant barmaid was standing, where she suffered shock and a
subsequent miscarriage. Kennedy J upheld her claim and argued that Victorian Railway
Commissioners waw wrong in that exaggerated/fraudulent claims aren’t a good enough reason to
deny the existence of a duty of care in regard to psychiatric harm. In allowing psychiatric illness in
negligence liability, Kennedy LJ was influenced by Wilkinson V Downton [1897], whereby the
defendant had arrived at the plaintiff’s door and, as a joke, announced the plaintiff’s husband had
broken both his legs in a serious accident. The plaintiff suffered shock, with vomiting, and the
defendant was liable for his statement, as he’d perpetrated an intentional act of wrongdoing.
Thus, in Dulieu, the courts tried to control the scope of liability by using ‘impact theory’ by which a
plaintiff would be allowed to recover for psychiatric illness provided this was caused by reasonable
fear of being physically injured by the defendant’s negligence.
Hambrook v Stokes [1925] 1 K.B. 141.
Later, courts extended the law to cover claimants who were not in danger, but had suffered
psychiatric illness due to witnessing a loved one being injured/in peril due to a defendant’s
, negligence (secondary victims). This was seen in Hambrook v Stokes [1925], where a pregnant
mother accompanied her 3 children on their journey to school and left them a on the bend of a road.
The children were beyond sight when an out-of-control lorry came down a hill at speed, went round
the bend, and led to the mother fearing her children would be killed by the lorries. This shock caused
a miscarriage, and her own death. Court of Appeal held the defendants liable. Bankes LJ pointed out
the ration of this decision was to be confined to situations where the plaintiff suffered psychiatric
illness because of fear for the safety of the children. This decision didn’t overturn previous authority
to the effect a plaintiff couldn’t recover in respect of psychiatric illness caused by witnessing physical
injury to a person with whom the plaintiff had no relationship of love and affection.
Bourhill v Young [1943] A.C. 92.
Bourhill saw the question of psychiatric illness come before the House of Lords for the first time. A
pregnant woman descending from a tram heard a road accident occur, and alter attended the
accident scene, seeing blood. She then suffered a miscarriage due to the shock. The House of Lords
held the woman was not a ‘foreseeable claimant’. Ordinary people are expected to withstand the
rigours of witnessing injury to a stranger on the roads without suffering psychiatric illness. Also,
‘impact theory’ was used, as the Lordships determining she could not recover as she was outside the
areas of foreseeable physical impact. This is similar to King v Phillips [1953] 1 Q.B. 429 where a
mother was regarded as too far away from the scene of the accident to claim recovery.
It wasn’t until the 1960s that the court began to take a more liberal approach, with Boardman v
Sanderson [1964] 1 W.L.R. 1377., where a plaintiff who suffered psychiatric illness when his son was
involved in an accident could recover even though he’d only heard the accident a distance away and
came to the seen shortly afterward its occurrence. McLoughlin v O’Brian in 1982 developed this
further still.
The emergence of the modern law: McLoughlin v O’Brian [1983] 1 A.C. 410.
The plaintiff’s husband and 3 children were involved in a serious road accident due to the
defendant’s negligence. The plaintiff was at home 2 miles away, and a family friend reported to her
than her 17-year old son, who drove the car, was dying. The plaintiff arrived at the hospital and was
told of her 3-year old daughter’s death. The 17-year old son could be heard shouting and screaming,
and the husband and 7-year old daughter were in a distressed state covering in oil and mud. The
plaintiff suffered psychiatric illness.
The House of Lords held the defendant’s liable and extended the law to cover the situation where
the plaintiff had not heard or seen the accident itself but had come upon its ‘immediate aftermath’.
Without defining what constitutes as an ‘immediate aftermath’ the plaintiff had seen her family a
short time after the accident and they have not been cleaned up, meaning they were essentially in
the same condition as when the accident took place. This definition is still unclear, even after being
considered again in Alcock v Chief Constable of South Yorkshire. Lord Wilberforce thought extending
previous authority to assist the plaintiff was a ‘logical progression’ as psychiatric illness had ‘a real
need for the law to place some limitation on the extent of admissible claims’.
“The first hurdle which a [claimant] … must surmount is to establish that he is suffering, not merely
grief, distress or any other normal emotion, but a positive psychiatric illness.” (McLoughlin v O’Brien
[1983] 1 AC 410)
Lord Wilberforce’s ‘control mechanisms’:
In McLoughlin v O’Brian, 3 factors were identified for secondary victims:
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