By Law Teacher
2.3.1 Psychiatric Illness – Introduction
Welcome to the third lesson of the second topic in this module guide – Psychiatric Illness. Where psychiatric illness does not follow from physical injury, it may not always be recoverable in negligence. The type of injury that is actionable here has developed through common law control mechanisms. It may form the basis of either a problem or an essay question, and so an understanding of this area of the law is crucial.
At the end of this section, you should be comfortable understanding how tort treats psychiatric illness through its definition of actionable psychological injury. You will be able to define how the duty of care relates to both primary and secondary victims in relation to psychiatric illness, and will also be able to comprehend how tort treats the requisite foreseeability of such harm.
This section begins by outlining why the law of tort restricts claims for psychiatric illness, before going on to the first general rule in the law; that psychiatric injuries must be medically recognised. After going through some of the sufficient types of condition, the section moves on to the second general principle; that psychiatric injuries must be caused by a sudden event. The discussion subsequently addresses how the duty of care for such injuries relates to both primary and secondary victims, and then concludes with a discussion of other relevant legal principles, such as foreseeability, damage to property and injurious news.
Goals for this section:
- To be able to define how and why the law of tort restricts claims for psychiatric injury.
- To understand how the duty of care relates to both primary and secondary victims of psychiatric injury.
Objectives for this section:
- To be able to define what type of psychiatric injury is actionable, and why.
- To understand how psychiatric injury must be caused by an event.
- To be able to distinguish between the duty of care owed to primary and secondary victims
- To understand how foreseeability relates to psychiatric injury and the duty of care.
- To be able to define the ‘egg-shell skull’ rule.
2.3.2 Psychiatric Illness Lecture
How does Tort Treat Psychiatric Illness?
Claims in tort for negligently caused psychiatric illness have their own set of rules which must be followed before a valid claim can be made. Whilst it is relatively straightforward to see why economic losses should be controlled (namely, their potentially infinite nature), the contemporary reasoning behind the restriction on claims for psychiatric harm are a little less clear. Indeed, it is far easier for a claimant to make a claim for small cut on his or her arm, than it is for that same claimant to receive damages for years of psychological harm. Historically, the reasoning becomes a little clearer – it is only in recent years that psychological illness has become relatively well understood and accepted as a facet of healthcare, whereas in the past it was far more likely to be seen as a character flaw (e.g. male mental illness was ascribed to wimpiness, women were thought of as being hysterical etc.)
However, there is some obvious basis for restricting claims for psychiatric harm stemming from a negligent act. Take, for example, a particularly gruesome car accident. Physical harm will usually be restricted to the passengers in the involved vehicles, with some associated property damage. In contrast, the psychological ramifications of such an accident can be much further reaching. These restrictions can be separated into two camps – firstly, there are restrictions on the nature of the psychiatric harms which can be claimed for. Secondly, whilst the elements of negligence (duty, breach, causation, remoteness) are the same for claim involving psychiatric harm, there are certain principles governing the exact forms that they take.
General Rule One: Psychiatric Injuries Must Be Medically Recognised
Not all psychiatric harms are recognised by the law equally. Instead, as a means of separating legitimate and illegitimate claims the law states that psychiatric injury must manifest in a medically recognised condition. In the past, legitimate claims were based around the idea of ‘nervous shock’, although nowadays you are more likely to find references to post-traumatic stress disorder (PTSD) and various other specifically defined mental illnesses.
Post-Traumatic Stress Disorder
This can be seen in Leach v Chief Constable of Gloucestershire Constabulary[1999] 1 WLR 1421. The claimant suffered from PTSD (and a stroke) due to the failure of the defendant to provide proper support to her. It was held that the defendant had failed in its duty to her, the claim succeeded.
Pathological Grief
As per Vernon v Bosley (No. 1)[1997] 1 All ER 577, pathological grief (read: really serious grief) constitutes a medically recognised condition in tort law.
Personality Disorder
As seen in Chadwick v British Railways Board[1967] 1 WLR 912, the claimant developed a number of personality disorders (namely, acute neurosis and anxiety) resulting in 6 months of treatment as a psychiatric inpatient.
Trauma-Induced Miscarriage
Although not strictly a psychiatric injury (rather, a physical harm occasioned by psychiatric trauma), there are a number of cases in which traumatic events have been linked to miscarriages. This can be seen in Bourhill v Young[1943] AC 92. It should be noted that the case failed – there was insufficient proximity between the defendant and the claimant, although it still stands as an example of miscarriage as a medically recognised injury for the purposes of tort.
Unrecognised Psychiatric Harms
As a general rule, sadness, grief or general distress are not covered – they are held to be expected parts of everyday life. The distinction between actionable grief and anxiety and non-actionable grief and anxiety can be seen in two cases. In Hinz v Berry [1970] 2 QB 40, the courts made a distinction between the morbid depression that the claimant suffered and ordinary in-actionable grief. In Rothwell v Chemical and Insulating Co [2007] UKHL 39, the courts rejected claims for anxiety caused by the claimant’s knowledge that they might later develop a serious disorder, because the anxiety had not manifested itself in any diagnosed state. Notably, there was one claimant who did develop a mental illness as a result of this anxiety, and so surpassed this hurdle.
General Rule Two: Psychiatric Injuries Must Be Caused by a Sudden Event
As a means of controlling the claims made under the heading of psychiatric injury, the courts have also stipulated that such injury must now be caused by a sudden event. This means that cases involving ‘slow burn’ illness (such as long term exposure to a harmful influence) are unlikely to be recoverable under this heading of damages. In Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, it was held that actionable shock ‘does not include psychiatric illness caused by the accumulation over a period of time of more gradual attacks of the nervous system.’ Thus, it must be caused by the claimant suddenly seeing something distressing.
The idea of ‘suddenness’ should not be taken to mean ‘immediate’. This can be seen in Walters v North Glamorgan NHS Trust[2002] EWCA Civ 1792.
Duty of Care and Psychiatric Harm
Assuming the above rules have been followed, the next step is establishing a duty of care between claimant and defendant. As per Alcock, this duty of care is based on three elements – foreseeability, proximity, and nature of ‘shock’. It is important to note at this point the distinction the law makes between the duty a defendant has towards primary victims and the duty a defendant has towards secondary victims.
In Page v Smith [1996] AC 155 the court held that that two classes of claimants exist with regard to psychiatric injury; primary and secondary. The former class includes those directly involved in an accident or incident (for example, those in the car for traffic accidents), and the latter includes those who witness the accident or incident. It was held that for primary victims, foreseeability of a physical injury is sufficient to allow a primary victim to claim for a psychiatric injury.
The Scope of Primary Victims
Whilst, broadly, the primary victim category is relatively straight forward to understand, there have been two specific groups of people that the law has historically placed in the primary category.
The first of these groups are rescuers – those who attend the scene of an accident. Whilst these were included in the primary category in Alcock, the law has since been modified so that rescuers are only considered primary victims when they are either objectively exposed to danger or they hold a reasonable belief that they are in danger. The source for this principle can be found in White and Others v Chief Constable of the South Yorkshire Police[1999] 2 AC 455.
The second group of people is those who believed themselves to have caused the death or injury of another were included in this category. Note: such people are now regarded as secondary victims, although for a short while they were seen as primary victims.
This can be seen in Dooley v Cammell Laird[1971] 1 Lloyd’s Rep 271 where the claimant believed, temporarily, that he had killed somebody (or a number of people), and as a result suffered acute shock, aggravating a pre-existing psychological condition. This was held to be a valid claim – the claimant had a reasonable belief that he had killed someone.
This was later refined so that the claimant had to be present when death or injury occurred. So, in Hunter v British Coal[1998] 2 All ER 97, the claimant’s case failed – he was not present when the death (or injury) actually occurred, and only found out about it 10 minutes later.
Secondary Victims
In order for a claimant to have a viable claim as a secondary victim, they must satisfy a number of criteria. Firstly, there must be a close emotional link between the traumatic event and the claimant’s psychiatric injury. In other worlds, the courts largely require that the secondary victim be closely related in some way to a primary victim. It should be emphasised that the rule is that there must be a close emotional link, not necessarily that the secondary victim must be a husband or parent of a primary victim. Rather, whilst cases involving spouses and parents have a rebuttable presumption towards there being a sufficiently close relationship, other relationships can satisfy this criterion. It should also be noted that this rule becomes proportionally more relaxed in relation to the seriousness of the harm to the primary victim.
Indeed, it was mooted in McFarlane v EE Caledonia Ltd[1995] 2 All ER 1, that should the situation be sufficiently grievous a bystander might be able to claim – although it should also be acknowledged that the claim was rejected in this case. So, a less serious incident affecting the primary victim requires a closer relationship before a claim can be made, and vice versa.
Secondly, the secondary victim must be both close in terms of ‘spatial and temporal proximity’ (translation: same time, same place.) In other words, there must be at least a rough correlation between the harm done to the primary victim and the secondary victim’s experience of the harm. As seen in McLoughlin v O’Brian[1983] 1 AC 410, this extends a relatively long time after the instigating event. The claimant sued the defendant for psychiatric injury. Her claim succeeded – the claimant came upon the immediate aftermath of the incident, and this was held to be sufficiently close in space and time.
Thirdly, the secondary victim must see or hear the immediate aftermath of the instigating event. The importance of such a rule can be seen in Alcock – a huge number of people saw the events over TV. It should be noted that the rule is not that seeing a primary victim die or get injured on a TV broadcast makes a claim invalid. Instead, the logic in Alcock was that it was impossible to identify individual primary victims from the broadcast, and so whilst viewers might know a close relation was in that particular stand of the stadium, they could not directly see the harm done to them.
These three criteria combined provide the basis for a claim as a secondary victim. As can be seen, none of these criteria are particularly strict. Because of this, it is often helpful to think of each of them as existing along a spectrum, in combination with the seriousness of the involved incident, so a relationship spectrum, a proximity spectrum, and a perception spectrum.
Other Legal Principles
There are a few other principles which apply in cases of psychiatric injury.
Foreseeability
When dealing with secondary victims, it must be reasonably foreseeable that a psychiatric injury might occur to someone in the given circumstances. So, to reiterate, when dealing with primary victims the standard is foreseeable physical or psychiatric injury, whilst when with secondary victims the standard is just foreseeable psychiatric injury.
The ‘Egg-shell Skull’ Rule
Secondly, the ‘egg-shell skull’ (as often seen in criminal law) applies to psychiatric injury. In essence, this means that a claimant’s particular psychiatric injury does not need to be foreseeable – the mere fact that some psychiatric harm is foreseeable is enough to satisfy the criteria. This rule can be seen in Brice v Brown[1984] 1 All ER 997 – the claimant was particularly susceptible to mental illness due to a pre-existing condition. As a result of a car crash, she became neurotically obsessed with her daughter’s safety. She sued for psychiatric injury and lost – it was not foreseeable that a person of reasonable fortitude would acquire a psychiatric injury from an accident of the nature involved in the case. However, had some psychiatric injury been foreseeable, then the defendant would have been held accountable for the full extent of the claimant’s condition – not just that which could be reasonable foreseen.
Primary Victim as Defendant
Secondary victims cannot recover when the defendant is also the primary victim. In other words, if an individual negligently causes themselves a horrible injury, a secondary victim cannot sue for psychiatric injury, as per Greatorex v Greatorex[2000] 4 All ER 769.
Damage to Property
Although the case law regarding secondary victims focuses on seeing other people get hurt, there is precedent to suggest that seeing property destroyed can be sufficient to establish a case for psychiatric injury. This can be seen in Attia v British Gas[1988] QB 304.
Injurious News
Finally, there is precedent to suggest that negligently presenting shocking news to someone that can meet the standard for actionable psychiatric injury. Allin v City and Hackney Health Authority [1996] 7 Med LR 167.
2.3.3 Psychiatric Illness Lecture – Hands on Example
Question:
Tywin is piloting the famous BadYear blimp as it flies above central Manchester. He is distracted by his phone for a number of minutes and fails to notice that he has lost a dangerous amount of altitude. The blimp is punctured by a church steeple and bursts, crashing into a terrace of houses. This destroys a number of houses, and injures and kills a number of people. Included in this group are the following people:
Firstly, Ned is at his house when the blimp crashes into it. Whilst his house is more or less destroyed, Ned himself is luckily uninjured. However, he is left with a pathological fear that the event will reoccur. He moves into a hotel, and refuses to return to the scene of the crash for months after the incident.
Secondly, Robert is also at home when the crash occurs. He is unfortunately killed. His estranged wife, Cersei, is away on a business trip at the time, and only finds out a week later. She is nonetheless extremely upset, and her GP prescribes her time off of work and medication due to symptoms of depression which have since emerged.
Thirdly, Margaery is walking along the street when the blimp crashes, and she is crushed by the steeple of the church as it falls to the ground. Firefighters are called to the scene, including, coincidentally, Margaery’s mother, Alerie. Because of the scale of the destruction, the firefighters decide to use a small robot to begin searching the rubble for survivors, with images of the scene relayed back to the firefighters on their laptop. During this search, Alerie unexpectedly sees that her daughter has been killed in the incident, and is trapped in the rubble. She is understandably traumatised, and becomes unable to leave her house in the following weeks, and is later admitted to a psychiatric hospital.
Fourthly, Tyrion returns from the shops to find that his house has been utterly destroyed by the blimp. He is extremely upset over the next couple of days and takes to drink, but bounces back from it relatively quickly.
Discuss the claims for psychiatric injury that might arise from the above facts.
Answer:
In general, the elements of negligence are present – Tywin has a duty of care to those on the ground as reasonably foreseeable victims, he has breached this duty by becoming preoccupied with his phone and the breach can be said to have caused all of the claimant’s injuries due to the absence of intervening acts.
1) Ned appears to have a valid claim for psychiatric injury as a primary victim. He is suffering from a medically recognised condition in the form of post-traumatic stress disorder, in much the same way as the claimant in Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421 did. His illness has also been caused by a sudden event (as per Alcock) – the blimp crash.
Regarding remoteness of injury, this is unlikely to hamper Ned’s claim. As per Page v Smith, reasonable foresight of physical harm to a primary victim is enough to establish foresight of psychiatric injury. It is unlikely that Tywin would be able to argue that physical injury from a blimp crash is unforeseeable. Thus, whilst physically uninjured, Ned’s claim will therefore stand.
2) Cersei might have a claim as a secondary victim, although the legitimacy of this claim is disputable. In order for her claim to be valid, she must show a close relationship with a primary victim, as per Alcock. Whilst there is a rebuttable presumption in place for spousal relationships in this regard, the fact that they are estranged in this case might provide an obstacle to this part of the claim. Further problems arise as a result of the fact that Cersei only found out about her husband’s death a week later. This means that she cannot be said to be either spatially or temporally close to the incident, distinguishing the events of McLoughlin v O’Brian. Finally, she cannot be said to have seen the event as it happened – she was away at the time, and so fails to meet this criterion (as per Alcock.)
That being said, she does appear to have a recognised mental health condition as a result of the crash, and this condition is caused by a sudden event. Psychiatric injury is also arguably foreseeable – a blimp crash is relatively likely to kill or maim people on the ground, and this in turn is likely to be traumatic to those who come across the aftermath. Thus, whilst Cersei’s claim is substantive due to her psychiatric injury, it may well fail because of her estranged relationship with Robert, and the time that passed between the event itself and Cersei finding out about the event.
3) Alerie may well have a valid claim as a secondary victim of the crash. She has an identifiable psychiatric injury – some form of neurosis, and this was caused by a sudden event. She is in a relationship of love and affection with a primary victim, as Margaery’s mother, is there on the scene live when her shock occurs. Whilst she does sees Margaery’s body over a live feed, this can be distinguished from Alcock – Aleria is able to identify Margaery’s body individually over the feed, and so this arguably meets the threshold for psychiatric injury as laid down in Alcock by Lord Ackner (at 921.)
4) Although there is a precedent to suggest destruction of property can be sufficiently shocking to give rise to a claim for psychiatric injury, in the form of Attia v British Gas [1988] QB 304, the fact that Tyrion does not appear to be suffering from a defined psychiatric injury is likely to vitiate his claim for psychiatric injury. His claim is therefore likely to fail (although, of course, a parallel claim for the destruction of his house will likely stand.)