3. Negligence - PURE Psychiatric Injury PDF

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NEGLIGENCE – DUTY OF CARE – PURE PSYCHIATRIC INJURY READING: Mulhern, Principles of Tort Law (Cambridge: Cambridge UP, 2016 or 2020), Chapter 5.1. INTRODUCTION AND CONTEXT  Where this fits within the law of negligence - PPI has long caused problems for the law in recognising claims in the first pl...

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NEGLIGENCE – DUTY OF CARE – PURE PSYCHIATRIC INJURY 

READING: Mulhern, Principles of Tort Law (Cambridge: Cambridge UP, 2016 or 2020), Chapter 5.

1. INTRODUCTION AND CONTEXT  Where this fits within the law of negligence - PPI has long caused problems for the law in recognising claims in the first place and also posing conditions for these claims.  Relationship with other types of damage/injury  Philosophical considerations - Dualism of mind and body has been discussed by philosophers for ages (e.g. Plato and Aristotle). And this notion became established in European culture, but English courts definitely faced trouble in distinguishing between damage to the mind and damage to the body. 2.   

TERMINOLOGY AND DEFINITIONS Pure psychiatric illness (distinguish from consequential psychiatric illness) Pre-requisite: a medically recognized psychiatric illness/disorder Not mere grief/emotional distress - everyone suffers and is quite common, and the distinction is important because there can be no claim for mere emotional distress or grief unless it definitively led to a psychiatric illness (with medical evidence).  Reason: McLoughlin v O’Brian [1983] 1 AC 410 (Lord Wilberforce); Hicks v Chief Constable of South Yorkshire Police [1992] All ER 65 - This type of injury was earlier called shock or nervous shock (referred to in previous judgements), but this was derogatory in a sense and perhaps contributed to many misunderstandings in this area of law. - “There remains, in my opinion, just because ‘shock’ in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation upon the extent of admissible claims.” – Lord Wilberforce - Now it has been changed to PPI which includes all recognised forms of mental illnesses including PTSD, mood disorders, etc.  Note the American Diagnostic and Statistical Manual of Mental Disorders (called DSM-IV), and the International Classification of Diseases and Health Related Problems (called ICD-10)  Compare recent Canadian Supreme Court authority: Saadati v Moorhead (2017) - In trying to prove such an injury, although it would be helpful, it would not always be necessary for a claim to bring to in expert medical evidence or other proof of a recognised psychiatric illness (Not the case in English courts).

3. POLICY CONSIDERATIONS

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Law Commission Report on Liability for Psychiatric Illness (Law COM 249, 1999) – will consider at the end of this topic, under “Reform Proposals” - “The issue of liability for psychiatric illness provokes a range of strongly held opinions”. - One end of the law wanting to treat psychiatric illness the same was physical injury is treated, and principles of awarding damages should be no different. - Other end: a deep scepticism about the reality of the conditions grouped together under the label psychiatric illness and about the need to provide compensation for them in the law of neg. - Some believe that liability for psychiatric illness should be abandoned altogether. - English law has steered a middle ground^ Victorian Railway Commissioners v Coultas (1888) 13 App Cas 222 – early mood of scepticism set by Privy Council. - Case of a woman who suffered psychiatric damage after almost being hit by a train after being negligently allowed to cross a gate by the gate keeper - Sir Richard Couch at 225-6 mentioned the danger of admitting such claims - “In every case where an accident has given a person nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now often exists… of determining whether they were caused by the negligent act would be greatly increased and a wide file opened up for imaginary claims.” - The privy council held way back then that damage was too remote and no claim against gate keeper on PPI grounds. White v Chief Constable of South Yorkshire Police [1999] 1 All ER 1 - Lord Steyn’s summarised in this case what was at the time the main policy considerations relevant to the determination of the law. - I) The difficulty of drawing the line between acute grief & psych illness II) Important to consider the effect on people who have witness shocking/gruesome events, increasing the availability of compensation. (not fraudulent claims). III) Open the floodgates of litigation: If we were to relax special rules governing compensation for psychiatric harm, this would increase the class of people who could recover damages in tort. IV) Disproportionate liability: The view that expanding liability for psychiatric harm might result in liability that could be disproportionate to the tortious conduct. Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 - Lord Oliver’s criticism of the law - “I cannot, for my part, regard the present state of the law as either entirely satisfactory or as logically defensible.” - He also acknowledged that answers in this area of law are to be found not in logic, but in policy. And concluded that rights of people should be enshrined in legislation.

4. OVERVIEW OF CATEGORIES OF CLAIMANT

5. PRIMARY VICTIMS  Widest definition: “one who was involved, either mediately or immediately as a participant, as opposed to one who was no more than a passive or unwilling witness or spectator to the injury caused to another”, per Alcock [1992] 1 AC 310 - Putting the claimant in the position of a primary victim - But over time there has been a slightly fluid definition of primary victim but the widest definition comes from Alcock.  Page v Smith [1996] AC 155 - The typical primary victim is in the zone of physical danger. - FACTS: The claimant suffered from a case of ME or known as chronic fatigue syndrome on and off for over 20 years. He was involved in a road accident in London and his ME returned, affecting him very severely up until his trial. - He spent a long time in litigation in this matter. The accident itself happened in 1987, but he only succeeded in his case in 1996, after numerous judgements. - Case outlines the principles relating to primary victims. - Lord Lloyd: the plaintiff was a participant and was directly involved in the accident and was well within the range of foreseeable of physical injury and he was the primary victim. - Established these prerequisites for a DOC: 1. Reasonable foreseeability of psychiatric or physical injury 2. Legal proximity (according to normal proximity reasons) 3. Public policy reasons (may apply to preclude a duty) - Traditional primary victims do not need to show normal fortitude  Rescuers as primary victims? - Chadwick v British Transport Commission [1967] 1 WLR 912 - FACTS: The claimant assisted in helping victims from the Lewisham train crash which was particularly harrowing with a lot of wreckage. Mr. Chadwick was asked to crawl underneath into the wreckage and give assistance and injections to the injured. He subsequently suffered neurosis but was able to recover from it. - Was concluded that yes, he was a primary victim (but not because he was a rescuer), it was because while he was rescuing others a carriage from the wreckage could’ve collapsed on him. - Confirmed in White v Chief Constable of South Yorkshire Police [1999] that rescuers per say are not the primary victims, but only those in the zone of physical danger.  Note that other categories which have been treated similarly to (but not exactly the same as) primary victims will be considered later under Part 7, “other exceptional categories”.  Pre-requisites to establish a duty of care towards a (traditional) primary victim:  Reasonable foreseeability, i.e.

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For typical Page v Smith claimants - reasonable foreseeability of psychiatric or physical injury; So, even without foreseeable psych injury, just foreseeability of physical injury is enough to establish DoC. - For other types of primary victims (e.g. ‘elevated primary victims’ --- see later – Part 7), reasonable foreseeability of psychiatric injury  Legal proximity (the usual proximity factors)  Public policy – may apply to preclude a duty

6. SECONDARY VICTIMS  Who is a secondary victim? - The claimant, broadly speaking, witnesses another person’s injury caused to due to the defendant’s negligence. But the claimant themselves suffers a suffers a psych injury as a result of this. - Due to fear of an overwhelming no. of claims. English law has restricted liability in these cases and does so by imposing certain control mechanism or proximity requirements which the claimant must satisfy in order to prove the existence of a DoC between themselves and the defendant. - “in the position of a spectator or bystander”: Page v Smith [1996] AC 155 (Lord Lloyd, at 184); - “someone who was a “passive and unwilling witness of injury caused to others”: Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (Lord Oliver, at 407). - SV leading authorities:  McLoughlin v O’Brian [1983] 1 AC 410 - FACTS: A mother saw members of her own family in the hospital after a fatal road accident. The accident involved the father, son and daughters and the mother was a couple of miles away. She was informed of the accident 2 hours later and that her son was dying. She was taken to the hospital where she was told her younger daughter had died and her other daughter was crying and her face was full of grime, dirt, oil, blood. She also saw her husband in a poor state. As a result of this she suffered severe psychiatric trauma. - The CoA held that she had no claim but the HoL held that she did. It was accepted that her psych injuries were a reasonably foreseeable consequence of the defendant’s negligence. But was reasonable foreseeability enough? - Lord Wilberforce then identified 3 relevant proximity criteria to establish liability in SV cases: 1. Proximity in relationship – Husband, wife, child (close ties of love and affection) 2. Proximity in time/space – Should be AT the accident or the immediate aftermath in time and space. 3. Proximity in Perception – How the claimant became aware of the accident. Sight or sound by the claimant themselves at the accident or aftermath is required. Communication by 3rd party will not suffice.

(“Dearness, nearness, hearness”) - speech of Lord Wilberforce – the foundation for the modern approach of the courts in psychiatric injury cases.  The Hillsborough litigation: - Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 - claim by relatives of those who were injured and crushed to death– These claims did not succeed as they did satisfy the McLoughlin control mechanisms. - E.g. A claim by a brother didn’t satisfy the category of relationship proximity (parent-child-s/o) - None of the relatives could satisfy the time/space proximity requirement, as their realisation was not immediate, but delayed. - White v Chief Constable of South Yorkshire Police [1999] 1 All ER 1 – policemen could not recover, whether under an employment duty of care, or as a “rescuer” (don’t confuse with Chadwick v British Railways Board [1967] 1 WLR 912 – Mr Chadwick was in physical danger) - highlighting the notion of distributive justice  Pre-requisites to establish a Duty of Care towards a secondary victim  Reasonable foreseeability of psychiatric harm - Page v Smith [1996] AC 155 (HL) 184 (Lord Lloyd): ‘foreseeability of psychiatric injury remains a crucial ingredient when the plaintiff is the secondary victim’ - If the claimant was a primary victim, they can prove foreseeability of psychiatric or physical injury, but with SV, psychiatric injury remains the crucial part.  Proximity - Three proximity requirements established in McLoughlin v Brian that need to be satisfied in order to establish a duty of care. 1. Proximity of relationship: there must be ‘close ties of love and affection’ between the SV and the injured person. Currently husband/wife and parent/child are automatically assumed categories (but can be rebutted). Any other categories must be proven to satisfy relational proximity. 2. Spatial and temporal proximity: To be ‘at the accident or its immediate aftermath’. But confusion as to what is immediate aftermath? Taylor v. Somerset: A woman’s husband suffered a heart attack at work and she came to see him at the hospital but it was too late. She did identify him as her husband but since she was late to the hospital, she couldn’t satisfy this proximity requirement. Galli Atkinson v Seghal: Case that demonstrates that despite these strict requirements, the court has the discretion to be flexible. In this case, the claimant’s daughter was fatally injured in a car accident. When her mother came to the scene a police cordon told her of her daughter’s death, and later saw her daughter at the mortuary and subsequently suffered psychiatric damage. Although she was not at the accident, it was said that the aftermath could include more than one component. The judge said that the claimant’s (mother) visit to the mortuary could not be excluded from the events that are regarded as the ‘aftermath’. Those events stretched from the moment of the accident to the moment the mom left the

accident – One unbroken chain of events between the accident and the mortuary. This demonstrated flexibility to the criterion! 3. Proximity of perception: Requires the SV to have direct perception of the accident or its immediate aftermath. They must not hear about it from someone else! Tan v East London HA – In this case the claimant was told of his son’s death in utero via telephone and the claimant suffered psychiatric injury. He reached the hospital 3.5 hours later to see his dead child. He tried to claim a DoC, but in this case the phone did NOT qualify as a direct perception of the traumatic event, so his claim failed. Taylor v Somerset – Receiving bad news and then witnessing the dead body. She suffered psychiatric illness after seeing her husband’s dead body at the mortuary, but her claim failed even though she reached within an hour of hearing the news. Courts held that the purpose of her visit was to identify the husband’s body and was not to do with the case of his death.  Normal Fortitude - NOTE: this requirement does not apply to primary victims - The claimant must be of normal fortitude, i.e. the SV must not be over perceptible to injury. - They are expected to possess ‘customary phlegm’ or strength. - What if the SV is especially vulnerable to psychiatric injury? Page v Smith; Bourhill v Young [1943] AC 92: “the driver of a car…. Even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure such incidents as may from time to time be expected to occur in them, including the noise of a collision and the sight of injury to others, and is not considered negligent to one who does not possess the customary phlegm”  Shock - ‘a sudden assault on the nervous system’, per Alcock. A difficult criterion in cases, and inconsistent findings? - Sion v Hampstead – Claimant’s son was severely injured in a bike accident and was incorrectly diagnosed at the hospital who failed to see that he was bleeding from his kidney. He went into a coma 3 days into the accident and suffered a heart attack and then placed in ICU. Throughout this the claimant was at the hospital and watched his son’s health and life deteriorate and finally end over 14 days, and as a result suffered psychiatric injury. HELD: The claim did not succeed as the shock requirement was not satisfied by the dad, and there was no element of suddenness in his son’s death. - In the case of Tan, and Taylor v Somerset did not satisfy the shock requirement. But compare it with: - North Glamorgan NHS Trust v Walters – Case involved a young boy who dies of clinical negligence. The boy’s mother was staying in the same hospital and woke to find her child having a major epileptic seizure which led to a coma and irreparable brain damage. But the mother was negligently reassured by NHS staff

that the child could not have suffered any permanent harm (so wrong!). The boy was then moved to another hospital to undergo liver transplant, and here the mother was told that the boy had to be on life support and could not have any quality of life here on. She agreed to have the life support to be switched off, and her son died in her arms. A few months later she has a mental breakdown, and was proven that this was a result of her son’s death. HELD: The NHS was held liable for the mother’s breakdown and had owed her a duty of care. But, did she suffer in the required sense for the law to accept her claim? However, it was held that her experience over the last two days of her son’s life could be considered as one traumatic experience.  Public policy - PP reasons may sometimes apply to SV cases to preclude secondary victim status and a DoC - In White the officers could not succeed in their claim of being secondary victims. The public policy reasons and idea of distributive justice played a role in this, as it would have been unfair if they had been classed as secondary victims, but the family and relatives of those injured in Alcock could not.

7. OTHER EXCEPTIONAL CATEGORIES  The “guilt-ridden” primary victim - A category which is treated a s primary victim, but not in the traditional sense. It originates from the W v Essex case.  W v Essex CC [2001] 2 AC 592 - This case was a PPI action by foster parents against the local authority. They had made it clear to the authority that they were willing to foster a child, but not a child with a history of sexual abuse. Nevertheless, they were given a child who allegedly assaulted their own children. They claimed that they suffered PI not only due to finding out about the assault but due to the guilt that they had unwittingly caused harm to their own children. - HELD: Local authority sought to strike the claim out, however that did not succeed. The court held that the case was not unarguable! Lord Slynn at 601 – “the categorization of those claiming to be included as primary or secondary victims is not as I read the cases finally closed”  Monk v PC Harrington Ltd [2008] EWHC 1879; - An attempted case being brought forward on the basis of guilt - FACTS: Mr. Monk had been working at Wembley stadium and a temporary platform fell on some fellow platform workers. He was not present at the scene but he heard about it on his work radio and rushed to help. One of his co-workers was severely injured, one broke their leg and one died immediately. Mr. Monk suffered from PTSD. - HELD: He was NOT a guilt-ridden primary victim because he couldn’t save his fellow co-workers, because his injury was not induced by a genuine belief that he had caused the other’s death.

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Demonstrated that the claimant must have a genuine and reasonable feeling of guilt with respect to this category.  Dooley v Cammell Laird [1951] 1 Lloyds Rep 271  The “elevated” primary victim:  Farrell v Avon Health Authority [2001] All ER 17 - FACTS: A father was told by a hospital that his new born baby had died and was given the dead baby to hold. Unfortunately, the hospital has made a mistake and the dead baby was not his – his baby was still alive. He suffered a PI due to the mistake made by this hospital. - Questions of what legal remedy to provide? He was not a secondary victim, neither did he satisfy the requirements of a traditional primary victim. - HELD: He was entitled to recover damages for the PI that he suffered, as a special type of primary victim – an ‘elevated’ one. As an elevated primary victim, the secondary victim control mechanisms did not apply to him. - If the dead baby had been his own, he would’ve been considered a secondary victim. And if that was the case there is requirement for secondary victims to be of ‘normal fortitude’ – and Mr. Farrell was not of normal fortitude as he was a recovering addict. But this did not apply in this case!  The “fear of the future” claimant:  CJD Litigation [2000] Lloyds Rep Med 161 - A group of claimants that were not primary victims in the traditional sense, but should be treated in the same way. - FACTS: Claimants all had growth problems as children. When they were young, they had all been treated with growth hormone injections. Later, i...