Tort of Psychiatric Harm

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Easier for someone to prove and receive damages for physical harm than for psychiatric
harm.

Very restrictive because of its nature, car crashes, and physical harm will be limited but any
passerby can claim psychiatric harm.

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.

Psychiatric Injuries Must Be Medically Recognized

Law states that psychiatric injury must manifest in a medically recognised condition.

PTSD
Leach v Chief Constable of Gloucestershire Constabulary

Claimant worked as unpaid volunteer.

Wasn’t warned about the nature of the crimes of a serial killer to whom she agreed
to work with him during the investigation of his crimes.

Got mentally fucked and developed PTSD.

Held, the defendant was liable because they failed in their duty to support her.

Pathological Grief
Chadwick v British Railways Board

Claimant lived nearby to the site of a horrible train crash.

Went to help as an untrained rescuer.

Developed personality disorders.

Held, duty of care was owed to C.

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 Trauma-Induced Miscarriage
Bourhill V. Young

Claimant was pregnant, witnessed a horrifying motorcycle crash (dude was riding
dirty) and went into shock.

C brought a case against D’s estate.

Failed, but shows trauma-induced miscarriage is recognized medically.

Unrecognized 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.

Hinz V. Berry

The defendant lost control of his vehicle at speed, crashing into a stationery car

Killed the claimant’s husband and severely injured her children.

In English law no damages are awarded for grief or sorrow

caused by a person's death. No damages are to be given for
the worry about the children, or for the financial strain or
stress, or the difficulties of adjusting to a new life. Damages
are, however, recoverable for nervous shock, or, to put it in
medical terms, for any recognisable psychiatric illness caused
by the breach of duty by the defendant."

Rothwell v Chemical and Insulating Co

Claimants sued their employer when they discovered that they had developed
pleural plaques in their lungs - an indication that they had been exposed to
dangerous levels of asbestos.

The courts rejected their claims for the anxiety caused by the knowledge that
they might later develop a more serious disorder, because the anxiety had not

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 manifested itself in any diagnosed state.

Psychiatric Injuries Must be Caused by a Sudden Event

Such injury must now be caused by a sudden event.

Alcock v Chief Constable of South Yorkshire

Stampede case, football match, police failure, national disaster.

Thus, in order for a psychiatric injury to be recognised as actionable in tort, 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 - the claimant’s 10- month-old son suffered
negligently caused liver failure, and died over the next 36 hours. Although the event itself
was relatively protracted, this was held to be sufficiently immediate.

Duty of Care and Psychiatric Harm

This duty of care is based on three elements - foreseeability, proximity, and nature of
‘shock’

Page V. Smith

Def Wrongfully merged on the highway, collided with Claimant

Def caused C to suffer from Chronic Fatigue Syndrome - a psychiatric injury which he
had previously had, but which was in remission before the accident.

The key issue was whether this harm was foreseeable or not.

Held that that two classes of claimants exist with regard to psychiatric injury - primary
and secondary. With the former class including those directly involved in an accident
or incident (for example, those in the car for traffic accidents), and the latter including
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

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 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. (White and Others v Chief
Constable of the South Yorkshire Police)

Some of those who attend might not factually be exposed to the dangers, but might believe
themselves to be. As long as the rescuer’s belief that they are in the danger-zone is
reasonable, then they will be able to claim for psychiatric injury as a primary victim.

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 was later refined so that the claimant had to be present when death or injury
occurred. Hunter v British Coal (hydrant explosion, mining vehicle, ran to get help,
did not witness, believed he was responsible for death).

Secondary Victims
Firstly, there must be a close emotional link between the traumatic event and the claimant’s
psychiatric injury.

The rule is that there must be a close emotional link, not that the secondary victim must
be a husband or parent of a primary victim.

This rule becomes proportionally more relaxed in relation to the seriousness of the harm
to the primary victim.

Secondly, the secondary victim must be both close in terms of ‘spatial and temporal
proximity’ (translation: same time, same place.) (McLoughlin v O’Brian)

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.

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.

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 Other Legal Principles
Foreseeability
When dealing with primary victims the standard is foreseeable physical or psychiatric injury.

When with secondary victims the standard is just foreseeable psychiatric injury.

The ‘Egg-shell Skull’ Rule

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.

Primary Victim as Defendant

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.

Damage to Property
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. Woman, saw her house
burn because of gas leak.

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. (False news about
baby’s death.)

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