Negligence - Actionable Damage (Psychiatric
Harm)
Introduction
Complexities surrounding Psych Harm:
• Lord Steyn, White v Chief Constable [1999]
1. The complexity of drawing the line between acute grief and psychiatric harm;
2. The prospect of litigation might pose an ‘unconscious disincentive to rehabilitation’;
3. They may impose a disproportionate burden of liability on defendants whose tortious conduct may involve
only a momentary lapse of concentration;
4. Claims of psychiatric harm can involve a potentially much wider group of possible claimants.
Restricting Claims:
• How has this been done in the past?
o 3rd parties
o Omissions
• For claims involving psychiatric harm, courts have utilised two primary methods to limit claims:
o At the damage stage
o At the duty stage
Psychiatric Harm: Historical Context
• Zones of Physical Harm
o ‘The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of
immediate personal injury to oneself. ’
Psychiatric Harm: Historical Context - Dulieu v While & Sons (1901)
Facts:
• C was pregnant, was working behind her husband’s bar.
• One night, a cart driven by D’s employee hit the pub, C went into shock and went into labour giving birth to a
premature baby.
• D argued due to there being no immediate physical injury to C at the scene, they were not liable.
Issue:
• Was shock enough to ground C’s claim?
Held:
• C would have to show that the psychiatric injury suffered first resulted in physical consequences to succeed.
• Thus, psychiatric harm alone was not enough.
• Phillmore J,
“In the case before us the plaintiff, a pregnant woman, was in her house. It is said that she was not the tenant in
possession [but]it was her home, where she had a right, and on some occasions a duty, to be;... It is averred that
by reason of the careless driving of the defendants' servant a pair-horse van came some way into the room, and
so frightened her that serious physical consequences thereby befell her. If these averments be proved, I think that
there was a breach of duty to her for which she can have damages. The difficulty in these cases is to my mind not
one as to the remoteness of the damage, but as to the uncertainty of there being any duty. Once get the duty and
the physical damage following on the breach of duty, and I hold that the fact of one link in the chain of causation
being mental only makes no difference.”
Psychiatric Harm: Historical Context - Bourhill v Young (1943)
Facts:
• C was a fishmonger’s wife; she was about to board a tram car. She heard a collision which was D hitting a car.
• As a result of the collision, C suffered extreme shock, retched and injured her back.
• She approached the scene, sees the body of D who is dead, makes her feel fear and terror.
• She gave birth to a stillborn child due to this incident.
Issue:
• The fear she felt was not to herself, she was not in any harm.
Held:
Harm)
Introduction
Complexities surrounding Psych Harm:
• Lord Steyn, White v Chief Constable [1999]
1. The complexity of drawing the line between acute grief and psychiatric harm;
2. The prospect of litigation might pose an ‘unconscious disincentive to rehabilitation’;
3. They may impose a disproportionate burden of liability on defendants whose tortious conduct may involve
only a momentary lapse of concentration;
4. Claims of psychiatric harm can involve a potentially much wider group of possible claimants.
Restricting Claims:
• How has this been done in the past?
o 3rd parties
o Omissions
• For claims involving psychiatric harm, courts have utilised two primary methods to limit claims:
o At the damage stage
o At the duty stage
Psychiatric Harm: Historical Context
• Zones of Physical Harm
o ‘The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of
immediate personal injury to oneself. ’
Psychiatric Harm: Historical Context - Dulieu v While & Sons (1901)
Facts:
• C was pregnant, was working behind her husband’s bar.
• One night, a cart driven by D’s employee hit the pub, C went into shock and went into labour giving birth to a
premature baby.
• D argued due to there being no immediate physical injury to C at the scene, they were not liable.
Issue:
• Was shock enough to ground C’s claim?
Held:
• C would have to show that the psychiatric injury suffered first resulted in physical consequences to succeed.
• Thus, psychiatric harm alone was not enough.
• Phillmore J,
“In the case before us the plaintiff, a pregnant woman, was in her house. It is said that she was not the tenant in
possession [but]it was her home, where she had a right, and on some occasions a duty, to be;... It is averred that
by reason of the careless driving of the defendants' servant a pair-horse van came some way into the room, and
so frightened her that serious physical consequences thereby befell her. If these averments be proved, I think that
there was a breach of duty to her for which she can have damages. The difficulty in these cases is to my mind not
one as to the remoteness of the damage, but as to the uncertainty of there being any duty. Once get the duty and
the physical damage following on the breach of duty, and I hold that the fact of one link in the chain of causation
being mental only makes no difference.”
Psychiatric Harm: Historical Context - Bourhill v Young (1943)
Facts:
• C was a fishmonger’s wife; she was about to board a tram car. She heard a collision which was D hitting a car.
• As a result of the collision, C suffered extreme shock, retched and injured her back.
• She approached the scene, sees the body of D who is dead, makes her feel fear and terror.
• She gave birth to a stillborn child due to this incident.
Issue:
• The fear she felt was not to herself, she was not in any harm.
Held:
