Psychiatric Injury

In Alcock v Chief Constable of South Yorkshire (1992), the House of Lords established clear and justifiable rules limiting claims for psychiatric damage in the law of negligence. Subsequent cases on this issue have served only to confuse matters. - Justin Santiago

Difficulties in establishing claimant’s mental condition which amounts to a recognizable psychiatric illness has led to various difficulties. The illness would have to amount to be a recognised condition and is a matter for the court after hearing expert evidence from psychiatrists whether the severe psychological illness would amount to psychiatric injury.

Judges are slow to recognize psychiatric injury or place very high barriers for claimants :-

a. It is not possible to claim for mere psychiatric injury unless it amounts to more than the usual shock reaction to a frightening incident.

b. If medical science does not recognise the mental state as a disorder it is not possible to claim for it unless it is accompanied by some physical injury

c. If accompanied by physical injury, any sort of emotional reaction to an event is compensatable

Rothwell v Chemical & Insulating Co Ltd and Another - all claimants failed because they did not have claims for physical injury. Furthermore there was only symptomless manifestations which were invisible and only a possibility.

Further confusion over psychiatric damage exists in relation to two different areas -secondary victims and foreseeability of harm.

A secondary victim is a person who who suffers mental trauma as a result of witnessing someone else's injury or imperilment as opposed to a primary victim who was within the zone of physical who might foresseaably have suffered physical harm but only actually suffers mental injury.

Many claimants who suffer psychiatric injury will be “secondary victims” - suffers mental trauma as a result of someone else’s physical injury or as a result of fear that such injury might occur and where no personal injury - psychiatric or otherwise - could reasonably have been foreseeable. These are victims whose personal injuries - psychiatric or otherwise would fail the duty of care test. The case of Alcock v CC South Yorkshire Police however allowed for such claims with control mechanisms laid out :-

- “proximate in time and space” to the traumatic event - nearness
- perceived the traumatic events with "his own unaided senses” - hearness
- included under the class of persons whose claims should be recognised - “close ties of love and affection” between the claimant and a primary victim - dearness

These three control mechanisms were extensively debated in later cases which sought to limit the claims by potential victims. However the line of cases has shown there to be inconsistencies with regard to how these criteria are measured :-

In McLoughlin v O’Brian it was held that only where the relationship was husband and wife or parent and child could any claim be sustained. Cases involving less close relationships required very careful scrutiny. The second was the proximity of the claimant to the accident. Lord Wilberforce considered that a strict test of perception of the accident by sight or hearing should be applied subject to an exception where the claimant foreseeably came on “the immediate aftermath” of the accident. That phrase was evidently sufficiently elastic to accommodate the visit of the claimant to the hospital over two hours after the accident. The third criterion was the means by which the claimant became aware of the accident. Sight or sound of the accident or aftermath was necessary. Communication by a third party would not suffice.

However in the case of W v Essex CC although the parents had the necessary ties of love for their children they were neither near enough in time or space to the acts of abuse and they did not have direct visual or oral perception of the incident or its aftermath. The parents only knew about the incidents after they had happened. Yet they were able to claim for mental injury due to the relaxation on the temporal and spatial requirements.

The reasonable foreseeability test in claims for psychiatric injury too has become confusing. In Page v Smith it was decided if physical injury had been foreseeable then a claim might lie for psychiatric injury even if it was not itself foreseeable. The claimant was involved in a car accident caused by the defendant, but suffered no physical injury. However, he contended that his underlying `chronic fatigue syndrome' was made worse, and permanent, by the accident. The claim failed in the Court Of Appeal, on the basis that an injury of the claimant's type could not have reasonably been forseen by the defendant, and thus the defendant owed the claimant no duty of care. However, the House Of Lords held that if it is forseeable that some injury may occur, it is irrelevant whether it turn out to be physical injury or psychiatric injury.

Rescuers are the ultimate suffers of the confusion. In White v CC South Yorkshire Police it was necessary to show that the rescuer had actually been exposed to physical danger in the rescue attempt. The effect of White v CC South Yorkshire Police was that pofessional rescuers who suffered from mental illness alone as a result of the rescue operations neither qualified as primary or secondary victims. They were not considered primary victims as they themselves were not at risk of physical injury or did not reasonably believe themselves to be at risk.They also could not qualify as secondary victime because they did not have the necessary ties of love and affection.

In McFarlane v EE Caledonia efforts by rescuers did not include peripheral work and required that rescuers had reasonable fortitude i.e. there were to be judged by a higher standard in their capacity to withstand impacts to the mind.

Suggestions for reform were posed in Law Commission Report 249 1998)

1. A definition of what is a recognizable psychiatric illness should not be laid down in legislation
2. Where the plaintiff is outside the area of reasonably foreseeable physical injury, it was reasonably foreseeable that the plaintiff might suffer psychiatric illness
3. Reasonable foreseeability of psychiatric illness is not required where physical injury to the plaintiff was reasonably foreseeable
4. In assessing whether the psychiatric illness was a reasonably foreseeable consequence of the defendant’s conduct, the court should consider whether the harm or imperilment to the immediate victim was judged prior to the accident, reasonably foreseeable
5. It may be helpful to continue to assume that the plaintiff is a person of reasonable fortitude, that assumption should be regarded as merely an aspect of the standard approach to reasonable foreseeability that is applied in cases of physical injury
6. No longer a condition of liability that the psychiatric illness was induced by shock
7. Courts should have scope to decide not to impose a duty of care where satisfied that its imposition would not be fair, just and reasonable because the defendant chose to cause his or her death, injury or imperilment
8. Should abandon classification into primary or secondary victim

References

Liability for Psychiatric Injury, Law Commission Report 249 (1998)

Psychiatric Injury – common sense or legal fiction? by Peter Garsden Partner in Abney Garsden McDonald and Vice President of ACAL (Association of Child Abuse Lawyers)