Only actual physical injury / illness is recoverable in negligence . An
increased risk of suffering an illness in the future is not itself
actionable damage; C will not have a claim unless and until the risk
materialises and C contracts the illness.
• Rothwell v Chemical Insulating Co [2007]: Cs sued their
employer who had negligently
exposed them to asbestos. Cs had developed pleural plaques, which
were evidence they were at risk of developing asbestos related
diseases. HL: Cs could not recover for either the pleural plaques
(no evidence they were harmful on their own) nor the risk of
developing a disease in the future. Lord Rodger: “Neither the risk
of developing those other diseases caused by asbestos fibres in the
lungs nor anxiety about the possibility of that risk materialising
could amount to damage for the purposes of creating a cause of
action in tort.”
PSYCHIATRIC INJURY
Psychiatric injury consequential on physical injury: C can claim
for it without recourse to the below rules (confirmed in Alcock) — no
need to show a recognised physical illness, can claim for ‘pain and
suffering’.
Psychiatric injury consequential on property damage: C can claim
if she can show causation and reasonable foreseeability: Attia v
British Gas [1987]: D (heating engineers) negligently installed a
central heating system which burned down C’s house. CA: accepted
,C’s claim for nervous shock.
White v CC South Yorks [1999] Lord Steyn articulated the main
reasons for limits on recovery
for freestanding mental injury:
• The nature of the damage: It can be difficult to distinguish ‘acute
grief’ from genuine ‘psychiatric illness’. Drawing the line would
require expert evidence, adding to the time/cost of litigation if it
was actionable in the same way as physical injury.
o Criticism: expense of litigation isn’t a valid reason to deny
recovery to deserving Cs. It will often be clear that C is
suffering from a recognised illness (e.g. PTSD) particularly
with modern improvements in the treatment / diagnosis of the
mentally ill.
• Allowing recovery can be “an unconscious disincentive to
rehabilitation.”
o Criticism: this doesn’t seem to be based
on evidence.
• Allowing recovery would ‘open
floodgates’. Two limbs:
, o Indeterminable number of Cs: if there is a bus crash how do
you determine number of Cs? Those involved? Watches by
roadside? Watches on TV? Related concern is recovery will
impose a disproportionate burden on D compared to the
magnitude of his negligence.
o Indeterminable extent of injury: While physical injury has a
clear, tangible impact, psychiatric injury is to some extent
immeasurable. It has no natural limit.
1. C’s condition must be a recognised medical condition
As Lord Oliver noted in Alcock v CC South Yorks [1992]: grief,
sorrow, and anxiety alone are ‘a necessary part of life’ which must be
accepted and are not recoverable as psychiatric harm. Recognised
types of psychiatric harm include PTSD and depression. Once it is
established that C is suffering from a recognised psychiatric
condition, the rules on recovery turn on whether C is a primary or
secondary victim — distinction drawn in Alcock, and Page.
2. Primary victims
General rule: Where C is in the physical sphere of harm / directly
involved and it is foreseeable that he will suffer a physical injury, he
can claim if the injury that in fact results is psychiatric.
• Page v Smith [1996]: C suffered permeant exhaustion as the result
of a car crash caused by D’s negligence. Lord Lloyd: the question
is “whether the foreseeable injury is physical… Once it is
established that D is under a duty of care to avoid causing
personal injury to C, it matters not whether the injury in fact
sustained is physical, psychiatric or both.”
o Floodgates concern does not apply in primary victim cases. It’s
limited by foreseeability of physical injury.
o D must take C as he finds him: will not escape liability just
because C is more prone to psychiatric injury than an ordinary
person of reasonable fortitude.
, Rescuers are only ‘primary’ victims where they are within the range
of foreseeable physical injury / objectively exposed themselves to
danger.
• White v CC South Yorks [1999]: Could police officers who
attended the Hillsborough Stadium disaster claim against their
employer for psychiatric damage? HL: they could only claim
under the normal Alcock / Page rule: i.e. if the employer had
breached his duty of care in protecting employees from physical
harm. Here that was not satisfied.
o Hoffmann: rescuers should not 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.” This is
because:
▪ Definitional problems: if rescuers fell into their own
category, it would present serious problems in terms of
defining ‘rescuer’.
▪ Distributive justice: “unacceptable to the ordinary
person” for rescuers to be able to recover for psychiatric
injury automatically because it would be “unfair between
one class of Cs and another.” I.e. the relatives of
Hillsborough families were subject to restrictive rules in
Alcock, so police had to be treated the same way.
o Steyn: “to contain the concept of rescuer in reasonable bounds
for the purposes of… compensation for pure psychiatric harm,
C must at least satisfy the threshold
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