Outline - Liability for Psychiatric Injury PDF

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Summary

Lecture Outline – Negligence: Liability for Psychiatric Injury

Learning Outcomes

By the end of your study of this topic you should be able to:

Understand how the law of negligence deals with the more complicated area of liability for psychiatric illness;

Description

Lecture Outline – Negligence: Liability for Psychiatric Injury Learning Outcomes By the end of your study of this topic you should be able to: Understand how the law of negligence deals with the more complicated area of liability for psychiatric illness; Understand the current requirements for establishing liability in this area; Analyse a problem in this area and provide solutions; Understand the importance of policy issues in this area; Critically evaluate the current law and proposals for reform.

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Lecture Outline General Requirements of Liability Must be genuine, recognised psychiatric illness (e.g. PTSD—post traumatic stress disorder) This is often referred to in old cases as “nervous shock”. Grief, unhappiness, distress, etc are not sufficient. The damage must be caused by witnessing a sudden, traumatic event. Sion v Hampstead Health Authority [1994] 5 Med LR 170

The law makes a distinction between “primary” and “secondary” victims. Broadly a “primary victim” is someone who was himself in physical danger. A “secondary victim” is someone who suffered psychiatric damage as a result of witnessing injury caused to others. The rules for recovery of compensation by secondary victims are very restrictive, so whenever they can, claimants will seek to argue that they were primary victims.

The Primary Victim Is someone who:  Was exposed to reasonably foreseeable physical injury, or  Was caused to reasonably fear physical injury

McFarland v E.E. Caledonia [1994] 2 All ER 1

If physical injury is foreseeable the defendant is liable for any personal injury, whether physical or psychiatric, which claimant suffers as a result. No requirement of “reasonable fortitude” – the defendant has to take the victim as he finds him. Simmons v British Steel plc [2004] UKHL 20

The same applies even if the physical injury did not in fact occur. 2

The Secondary Victim “A passive and unwilling witness to injury caused to others” There can be no liability unless it was foreseeable that a person of reasonable fortitude might reasonably have suffered psychiatric illness in the circumstances, i.e. if only the particularly vulnerable would suffer at all, there is no liability. However if a person of reasonable fortitude would suffer, then the defendant is liable for all the injury actually suffered by the claimant even though the injury was more severe because of the claimant’s particular vulnerability. Foreseeability alone is not sufficient. In addition they have to satisfy the three “control mechanisms”. Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310

1. Nature of relationship 2. Proximity in time and space 3. Perception by own unaided senses Nature of the relationship Such a close relationship of love and affection with the victim that it was reasonably foreseeable that the claimant would suffer psychiatric illness Rebuttable presumption that such a relationship exists between spouses, parent and child and (possibly) fiancées. In other cases there is a requirement to prove such a relationship Proximity in time and space Claimant must be present at the scene or immediate aftermath McLoughlin v O’Brien [1982] 2 All ER 298

c/f Alcock—identification of a victim in the mortuary 8 or 9 hours later was insufficient. Claimant must have perceived the event with their own unaided senses

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Not by being told of it by a third party Not (normally) by seeing it on television – but seeing it on simultaneous broadcast not totally ruled out. The position of rescuers—primary or secondary victims? Chadwick v British Transport Commission [1967] 1 WLR 912

White v Chief Constable of South Yorkshire [1999] 2 AC 45

The position of employees—primary or secondary victims? Apparent from White that no special rules apply to employees in relation to psychiatric illness caused by witnessing shocking event in the course of their employment Special rules do however apply to employees who suffer workplace stress— see later under “Employers’ liability” Unclear what position is if employee (or anyone else?) is the “unwitting agent” who causes injury or death themselves Dooley v Cammell Laird and Co Ltd [1951] 1 Lloyds Rep 271

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