Duty of Care (Psychiatric Harm) PDF

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TORT LGSLecture Topic 2. Duty of Care – Special Cases - Psychiatric HarmUsed to be called ‘nervous shock’IntroductionEarly cases denied a remedy and later cases have imposed limitations. The legal position has prompted some judicial frustration:“My Lords, the law on the recovery of compensation for ...

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TORT LGS3 Lecture Topic 2.3. Duty of Care – Special Cases - Psychiatric Harm Used to be called ‘nervous shock’ Introduction Early cases denied a remedy and later cases have imposed limitations. The legal position has prompted some judicial frustration: “My Lords, the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify. There are two theoretical solutions. The first is to wipe out recovery in tort for pure psychiatric injury. …. The second is to abolish all the special limiting rules applicable to psychiatric harm. … In my view the only sensible general strategy for the courts is to say thus far and no further. The only prudent course is to treat the pragmatic categories as reflected in authoritative decisions such as the Alcock case … and Page v. Smith … as settled for the time being but by and large to leave any expansion or development in this corner of the law to Parliament.” Lord Steyn in White v. Chief Constable of S Yorkshire [1999] 2 A.C. 455. Primary = physically injured and suffers psychiatric injury or in danger of suffering physical injury INVOLVED IN EVENT Secondary = not in physical danger but witness event and suffers psychiatric harm. Questions of duty arise when, as a result of D’s negligence, C suffers psychiatric illness in situations where: 

C is physically injured and also suffers consequential psychiatric harm (primary victim)

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C suffers psychiatric harm and was in danger of suffering physical injury (a primary victim)

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C is in no physical danger, but suffers psychiatric harm due to injury to a third party (a secondary victim)

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Some miscellaneous cases

PROVING PSYCHIATRIC HARM “It is necessary at the outset to particularise what is meant by 'nervous shock,' such as may result in liability for damages. The decided cases indicate that it means a reaction to an immediate and horrifying impact, resulting in some recognisable psychiatric illness. There must be some serious mental disturbance outside the range of normal human experience, not merely the ordinary emotions of anxiety, grief or fear.” Lord Keith in Page v Smith [1995] 2 All ER 736 Anxiety – not recognisable as psychiatric harm (it can be a disorder) 1

PRIMARY VICTIMS If C suffers psychiatric harm due to being physically injured or being at risk of physical injury (in the ‘zone of danger’), D may owe C a duty of care as a primary victim Dulieu v White & Sons [1901] 2 KB 669 Pregnant bar maid suffered nervous shock. As a result had a miscarriage. Was owed a duty of care and sued as she was in the zone of danger. Page v Smith [1995] 2 All ER 736 C did not suffer physical injury in a road accident but was at risk of injury and suffered psychiatric harm. He was a primary victim and owed a duty of care because physical injury was reasonably foreseeable. Minor collision. Had a pre-existing condition (chronic fatigue syndrome) which was triggered. Take victim as you find them. ‘’Zone of danger’ is judged objectively (reasonable person) McFarlane v EE Caledonian [1994] 2 All ER 1 CA -

Oil rig explosion. Survivor suffered psychiatric injury as result of being at risk.

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Held: not in zone of danger

Robertson v Forth Road Bridge Joint Board [1995] IRLR 251 -

Man killed by gust of wind that blew metal sheets under him off the bridge.

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Others not primary victims as they were not in danger themselves.

‘Fear for safety’ means immediate safety not fear for the future Rothwell v Chemical and Insulating Co Ltd and others [2007] UKHL 39 -

In order to be a primary victim, you must be at immediate risk, not at risk in the future.

Are ‘participants’ also covered as primary victims? See Lord Lloyd in Page v Smith (above) and Lord Oliver in Alcock v Chief Constable of the South Yorkshire Police (below) Dooley v Cammell Laird & Co. Ltd [1951] 1 Lloyds Rep 271 -

C suffered psychiatric injury as he thought he injured people with crane. He was not in danger himself but owed a duty of care.

Re (A Child) v Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 824 -

Maternity case. Baby suffered brain damage from lack of oxygen got stuck in delivery. Negligence from hospital. Mother primary victim,

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Yah v Medway NHS Foundation Trust [2018] EWHC 2964 (anxiety disorder- recognisable psychiatric harm) -

Emergency caesarean, mother primary victim.

Also consider the rescuer cases below.

SECONDARY VICTIMS The law in this area developed slowly, with the courts reluctant to find a duty of care. Not directly at risk of physical harm. Is psychiatric harm reasonably foreseeable? Hambrook v Stokes [1925] 1 KB 141 - C mother of 3 kids, lorry coming downhill towards them. Daughter injured. Mother pregnant at time, suffered psychiatric injury from fear of kids safety. Resulted in still birth of her child and then the death of herself. - Held: owed a duty of care, reasonably foreseeable that fearing for safety of her children would cause psychiatric injury. Bourhill v Young [1943] AC 92 - C got off tram and saw blood on road from motorbike accident. Not related to anyone but suffered harm from hearing accident. Pregnant and lost baby. Not owed a duty. - Not of sufficient fortitude (a normal person wouldn’t have been affected) - Psychiatric injury not reasonably foreseeable McLoughlin v O’Brian [1983] 1 AC 410: extended Hambrook to ‘aftermath’ cases. - Family involved in road accident, woman 2 miles away. Went to hospital, daughter died, and others injured. - Depression from witnessing aftermath. (3-hour gap) Was owed a duty of care. - Novel case Lord Wilberforce laid down the following requirements for proximity:   

Close ties of love and affection Spatial and temporal proximity Immediate perception and ‘shock’

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Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310 Novel case

Lord Ackner expanded on the test laid down by Lord Wilberforce’s in McLoughlin: 1. Category of relationship Some relationships are presumed to give rise to close ties of love and affection. (spouses, parents and children) Others have to be proved by claimant . Lord Ackner indicated that even mere bystanders might succeed - it would depend on the circumstances: ‘… your Lordships were given, by way of an example, that of a petrol tanker careering out of control into a school in session and bursting into flames. I would not be prepared to rule out a potential claim by a passer-by so shocked by the scene as to suffer psychiatric illness’ White v Chief Constable of South Yorkshire [1999] 2 AC 207 No duty owed, no close tie of love and affection. 2. Physical proximity (close in time and space) Galli-Atkinson v Seghal [2003] EWCA Civ 697 2 hours between incident, mother expecting daughter home and didn’t arrive. Found accident where daughter dropped off. (Berisha v Stone 2014 in HR p118) 5 hours. Not close enough for proximity Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194 Week gap- too long. C mother injured. Looking after mother and then she died. 3. Means by which injury is caused (direct perception/sudden shock) Live broadcast might exceptionally ground a claim – e.g. given of a hot air balloon full of children exploding live on TV ( Alcock p 405). Medical Negligence cases:

Sion v Hampstead Health Authority [1994] 5 Med LR 170 Father watched 2yr old son die over 3 weeks- hospital negligence North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 Hospital negligence- brain damage to child, life support turned off Wild v Southend Hospital Trust [2014] EWHC 4053 Child died- still birth. Woman sued hospital. Man didn’t suffer sudden shock (gradual) Liverpool Women’s Hospital NHS Trust v Ronayne [2015] EWCA Civ 588 Husband shocked by what he saw when visiting wide. Not considered a shock Re Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 824 Mother owed a duty- as she had a tie of love and affection. Sudden shock in birth RESCUERS – NOT A SPECIAL CATEGORY Rescuers are owed a duty in accidents. 4

Chadwick v BRB [1967] 1 WLR 912 - C went to help when railway crashed. Psychiatric injury from seeing people being dragged out of train. 12 hours, 90 died. - Held: owed a duty as he was a rescuer. White v Chief Constable of South Yorkshire Police [1999] 2 AC 207 Recovery for the professional rescuer would be ‘wholly exceptional’ Lord Goff p.484. Rescuers should no longer come within a special category unless objectively exposed to danger – referring to Chadwick above. - Owed a duty by police as rescuers in Hillsborough disaster but held not different to any other claimant (not a special category). Either primary or secondary. No ties of love and affection to others involved.

MISCELLANEOUS CASES W v Essex County Council [2001] 2 AC 592 Hatton v Sutherland [2002] EWCA Civ 76 (in the House of Lords as Barber v Somerset CC [2004] UKHL 13) Greatorex v Greatorex and Others [2000] 1 WLR 1976 QBD C, a fireman who was called to the site of a road accident and suffered psychiatric harm as a result of witnessing injuries to the driver, his son, who had been driving negligently. Attia v British Gas [1987] 3 All ER 455 C claimed for psychiatric harm caused by watching the negligent destruction of her house by fire.

Reading Horsey & Rackley Textbook Chapter 5 and Casebook Chapter 4 Trindade, ‘Reformulation of the Nervous Shock Rules’, (2003) 119 LQR 204 McKinley: ‘The difficulty of bring claims for secondary victims in clinical negligence cases’ [2018] Journal of Personal Injury Litigation 105 Lindsey: ‘Psychiatric Injury Claims and Pregnancy’ [2018] 26(1) Med L Rev 117

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