Psychiatric Injury Victims PDF

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Michael Reynolds...

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Plaintiffs in claims of psychiatric injury, commonly known as nervous shock, are divided into two categories: primary and secondary. This distinction had, on many occasions, produced complexities within the law and division between the most senior judges. It will be argued that this distinction is misleading, untenable in principle and cannot realistically be maintained, causing the law to become incoherent. In the discussion below, it will be shown that the courts have only found a pragmatic solution and not a satisfactory one. The term “primary victim” was first introduced in Alcock and Others v Chief Constable of South Yorkshire Police [1991]. The first attempt at defining primary victim was by Lord Oliver: “[person] who is either mediately, or immediately, involved as a participant. (Alcock & others v CCSYP). The second attempt at a definition was in Page v Smith [1995] where Lord Lloyd defined it as the plaintiff who is a participant, was directly involved in the accident, was well within the range of foreseeable physical injury. How can the liability of a defendant for psychiatric injury to a primary victim be established? The House of Lords, in Page v Smith, did not agree on the test for the determination of liability. Lord Keith does not believe that a reasonable person in the defendant’s position would have possibly foreseen that an accident of that nature would cause a person of normal susceptibility such mental trauma as to result in a psychiatric illness.(Page v Smith). In addition to that, both he and Lord Jauncey refer to Bourhill v Young [1943] and Lord Denning’s judgment in King v Phillips [1953] where he said that the plaintiff was required to prove the reasonable foreseeability of such nervous shock that was capable of leading to some identifiable illness. This means that they hold the view that the test of liability for shock should be foreseeability of injury by shock. Moreover, Lord Jauncey did not believe that the plaintiff suffered an acute emotional trauma compared with the plaintiffs in Dulieu v White & Sons [1901], Hambrook v Stokes Brothers [1925], Chadwick v British Railways Board [1967], Mcloughlin v O’Brian [1983], and Attia v British Gas Plc [1988].(Page v Smith). On the other side of this argument stand Lord Ackner, Lord Browne, and Lord Lloyd. Lord Browne said that it was established in Mcloughlin v O’Brian that “a defendant can be liable for illness or injury, psychiatric or physical….without any direct impact or injury to the limbs or organs of the plaintiff...and the fact that the plaintiff suffered no tangible physical injury is irrelevant”.(Page v Smith). Regarding the person of “normal susceptibility”, Lord Lloyd referred to what Geoffery Lane J. said in Malcolm v Broudhurst [1970] that the defendant must take the plaintiff as they find them and there is no difference between an egg-shell skull and an egg-shell personality. Lord Lloyd concludes his judgment pointing out that the current and operating test for primary victims is the existence of a recognisable psychiatric illness, and the foreseeability of physical injury only. There is no requirement of the person being of an “ordinary phlegm”.(Page v Smith).

The other category is secondary victims.The first attempt at a definition for secondary victims was by Lord Oliver in Alcock v CCSYP. He defined secondary victims as the plaintiff who suffers

psychiatric injury as a result of a nervous shock caused by the death or injury of the primary victim.(v). The first secondary victim to have recovered in English law was the plaintiff in Hambrook v Stokes Brothers. New limitations were introduced in that case and an express distinction was made between shock caused by what the plaintiff saw with her unaided senses and what she might have been told by others, liability being excluded in the later case. (Hambrook v Stokes Brothers). In claims by secondary victims the law places certain mechanisms to limit the number of potential claimants. The law makes a distinction between the claims of those with close family ties and bystanders, the former recognised by law, and the latter denied.(Lord Wilberforce in Mcloughlin v O’Brian). It was established in Mcloughlin v O’Brian that neither presence at or near the catastrophe, nor immediately arriving at the scene, as a rescuer or not, are essential elements of a successful claim. It is sufficient that a person in a recognised category finds what is the immediate aftermath of the accident. (Mcloughlin v O’Brian). Lord Parker criticised the presumption and the exclusion of claims of people with remote or no ties in Mcloughlin and said that it should be rebuttable, but questions whether there was a duty of care owed by the defendant to such persons. (Alcock v CCSYP). He refers to Lord Atkin’s speech in Donoghue v Stevenson [1932] para 580 in which he says a defendant is under a duty to take reasonable care, to indicate that he believes it is reasonable to make a prima facie presumption in favour of a plaintiff who is a parent or spouse. He rejects the idea that a defendant ought to reasonably foresee the any other person of ordinary phlegm would be likely to suffer psychiatric injury from shock caused by the defendant’s negligence. (Lord Parker in Alcock v CCSYP). Lord Wilberforce in Mcloughlin v O’Brian said that a claim of bystanders has to be judged in the light of factors such as proximity to the scene in time and place, closeness of relationships, and nature of the accident. Lord Oliver in Alcock v CCSYP said that plaintiffs as secondary victims must prove that psychiatric injury was a reasonably foreseeable consequence of the acts or omissions of the breach of duty to the primary victims by the defendant,that they have a “close tie of love and affection” with the primary victim, and have been present at the incident or experienced its immediate aftermath In Page v Smith, Lord Browne and Lord Lloyd took the stance that the only way for a non-participant plaintiff to have a claim is when they can establish that the defendant should have foreseen nervous shock. In conclusion, the current test for liability of defendants for psychiatric injury inflicted on secondary victim is as follows: the plaintiff must have a recognisable psychiatric illness, prove a degree of proximity in relationship and space and time or experience its immediate aftermath, and establish the foreseeability of psychiatric injury by shock to a person of normal fortitude or “ordinary Phlegm”. It must be noted that watching the incident on television through selective images accompanied with commentary does not satisfy the proximity test. (Alcock v CCSYP). Was it necessary for the law to introduce control mechanisms over such claims? The distinction made in Page v Smith is deemed to be necessary because of the strong element of policy that is the popular floodgates argument. (Cooke, 2017, pp.67-85). Griffiths LJ said that the consequences of a negligent act may be foreseeable by the defendant but no duty would be automatically imposed because policy -particularly the floodgates argument- indicates the contrary. (Mcloughlin v O’Brian in the Court of Appeal). Reaching the same conclusion but with different reasoning, Stephenson LJ said that even if a duty of care arises, the consequences of

the breach should be limited to a certain point as a matter of policy.(Mcloughlin v O’Brian in the Court of Appeal). However, The House of Lords said in Mcloughlin v O’Brian that “The scarcity of cases which have occurred in the past, and the modest sums recovered, give some indication that fears of a flood of litigation may be exaggerated”. Lord Lloyd had also said in Page v Smith that he “cannot foresee an increase in unmeritorious claims” or “bogus claims” because the plaintiffs cannot recover for ordinary human emotions of grief and fright. The distinction between secondary and primary victims has been criticised by a number of senior judges. Lord Macmillan said in Bournhill v Young "mental shock may have consequences more serious than those resulting from physical impact”. Lord Browne said that the imposition of different criteria for liability depending on whether the injury is physical or psychiatric is likely to lead to complexities in personal injury cases, he noted that the law will be more effective if it accepted that being involved in a collision may include both physical and psychiatric damage. (Page v Smith). Similarly, Lord Lloyd believes that it would not be sensible, in this day and age of medical knowledge, to commit to an artificial distinction between physical and psychiatric injury.( Page v Smith). He rejects the notion of the law requiring the application of different tests for physical and psychiatric injuries. He also says in Page v Smith “Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both." He refers to the definition of “personal injury” under s.38(1) of the Limitation Act 1980 states: “ ‘Personal injuries’ include any disease and any impairment of a person’s physical or mental condition”. Following the criticisms of the law in question, the Law Commission issued a report in which is said that the controls on the requirements that secondary victims must fulfil are unnecessarily tight and may lead to arbitrary results.(Law Commision Report No 249 (1998)). One of the key recommendations in the report is that the courts should abandon attaching practical significance to the labelling of victims using “primary” and “secondary”.The report recommends that the restrictions based on the plaintiff’s proximity to the accident (in time and space), and the method through which they learn about it are removed. In this regard, the report suggests that legislation should be introduced to lay down that a plaintiff, who suffers a reasonably foreseeable recognised psychiatric illness as a result of the injury or death of a person with whom they have a close relationship, should be entitled to recover damages from the negligent defendant in respect of the mentioned illness, regardless of the plaintiff’s proximity in time and space to the accident or its aftermath or the means by which they learn of it. Another suggestion by the Law commission in their report is that the law should no longer have the condition that psychiatric illness should be “shock” induced in order for liability for that matter to arise. Furthermore, the recommendations in the report included a proposal for imposing a statutory duty of care to avoid psychiatric damage, with its elements listed in the statute. Said legislation should also include a list of relationships where a close tie of love and affection shall be assumed to exist, while also allowing a plaintiff not included in the list to prove that they have a close tie of love and affection with the immediate victim. The list should include parents, children, spouses, brothers/sisters, and cohabitants who lived together for at least two years. It must be noted that the proposed duty shall not be imposed where the courts believe that it would not be just and reasonable to impose that duty because the plaintiff was engaged in conduct that is “illegal or contrary to

public policy”. In addition to that, the duty shall not be imposed when the defendant is also the immediate victim ( when the defendant causes their own death or injury). In conclusion, it is evident in the various decisions of senior courts that the law on the victims of psychiatric injury is chaotic and has been heavily criticised by many senior judges. The distinction is thought to be inconsistent, untenable, and misleading that it may lead to injustices and arbitrary results. However the suggested reforms by the Law Commission were ignored by the House of Lords and the law remains as it is.

Bibliography: Limitation Act 1980 Alcock v Chief Constable of South Yorkshire Police [1991] Attia v British Gas Plc [1988]

Bournhill v Young [1943] Chadwick v British Railways Board [1967] Donoghue v Stevenson [1932] Dulieu v White & Sons [1901] Hambrook v Stokes Brothers [1925] King v Phillips [1953] Malcolm v Broudhurst [1970] Mcloughlin v O’Brian [1983] Page v Smith [1995] Law Commission Report No 249 (1998)...