Duty of care and special rules on psychiatric injury

Law of Tort

what is consequentialist psychiatric injury?

this is a psychiatric harm that stems from negligently inflicted physical injury, and it is recoverable if it was foreseeable

what’s a case example of consequential psychiatric injury?

Malcolm v Broadhurst 3 ALL ER 508

what’s an example of consequentialist psychiatric injury?

if D’s negligent driving causes C to suffer physical injury and C suffers morbid depression as a result of the injury, then they will be able to recover damages for ‘pain and suffering’

what is pure psychiatric injury?

pure psychiatric cases involve claimants who have suffered no physical injury.

what case supported that it was impossible to bring a claim for pure psychiatric injury?

Victorian Railways Commissioners v Colts (1888) 12 App Cas 222

are pure psychiatric injury cases allowed nowadays?

these claims are allowed but they are subject to very restrictive rules. it is difficult to establish that D owed a duty of care to avoid causing pure psychiatric injury to C

what case supports policy reasons?

Page v Smith [1996] AC 155 (HL)

what did Lord Lloyd say in Page v Smith [1996] AC 155?

gave a number of reasons for restricting claims for pure economic loss

what are the reasons Lord Lloyd gave?

• floodgates

• evidentiary difficulties

• disproportionate liability

• malingering

what was the reaction to Lord Lloyds reasons?

have been heavily critiqued and some argue that they do not withstand scrutiny.

what needs to happen in all pure psychiatric injury cases?

the claimant must establish that they are suffering from a recognised psychiatric disorder

what case supports pure psychiatric injury?

Alcock v Chief Constable of South Yorkshire [1992]

what is the main thing that the Alcock v Chief Constable of South Yorkshire Police [1992] say?

“That is something mare than the sad, but the inevitable, human emotions of grief, sorrow, compassion and anxiety which occur in all bereavements. all these emotions are felt as sharply and deeply in such a situation as any human emotion can be. for these emotions, however, the law gives no compensation.”

what does the law draw a distinction between?

primary and secondary victims

when was this distinction first made?

by Lord Oliver in Alcock v Chief Constable of South Yorkshire Police [1992]

what does Lord Oliver say?

“Broadly they divide into two categories, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others”

what three categories of primary victim did Lord Oliver give?

1. those who suffer psychiatric harm because of a ‘direct threat of a bodily injury’ e.g. near miss cases

2. rescuers

3. unwilling participants where the defendant’s negligence has ‘put the plaintiff in the position of being, or of thinking that he is about to be or has been, the involuntary case of’

what establishes a primary victim?

people who have had direct threat of bodily injury

what case supports primary victims?

Dulieu v White & Sons [1901]

what did Dulieu v White & Sons allow?

allowed claimant to recover damages for psychiatric injury because it was caused by a reasonable fear of being physically injured

what did the case Page v Smith [1996] held?

held that a duty of care will be owed where it is reasonably foreseeable that C may suffer personal injury (physical or psychiatric)

what is the specific quote of Page v Smith [1996]?

“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”

what does it not matter then?

if the psychiatric injury was not foreseeable. provided it was foreseeable that C might suffer physical injury, then they can claim for the psychiatric injury suffered

what two cases support ‘rescuers’ primary victims?

• Chadwick v British Railways Board [1967]

• White v Chief Constable of South Yorkshire Police [1998]

what is Chadwick v British Railways Board [1967]?

• this is the old position

• rescuers were a special category and were allowed to recover damages

what did police argue in White v Chief Constable of South Yorkshire Police [1998]?

police officer argued that they were owed a duty of care and so were entitled to recover damages because they were ‘rescuers’

what did HL held in White v Chief Constable of South Yorkshire Police [1998]?

HL held that rescuers were not a special category and claimants must satisfy the ordinary rules for PV’s and SV’s if a duty of care is to be owed to them

what two cases support ‘unwilling participants’ primary victims?

• Dooley v Campbell Laird & Co Ltd [1951]

• Monk v PC Harrington Ltd [2009]

when were secondary victim claims allowed?

since the Hambrook v Stokes [1925] case

Secondary Victims: if D is to owe C a duty of care, then it must be established that:

1. C suffered a recognised psychiatric disorder

2. it was reasonably foreseeable that a person of ‘ordinary fortitude’ would suffer psychiatric injury

what are Alcock’s control mechanisms?

1. C must have close ties of love and affection with the immediate victim

2. proximity to the even or its immediate aftermath

3. witness the accident or its immediate aftermath with ones unaided senses

Secondary victims: what is the rebuttable presumption about the close ties of love and affection?

that these ties exist for spouses and parent-child relationships

outside of these presumptions, how must these ties be established?

on a case-by-case basis. in Alcock, it was found that siblings, friends, and brothers-in-law, did not have close enough ties to the victim to satisfy this criterion

what cases support secondary victims and the proximity to the accident or its immediate aftermath?

• McLoughlin v O'Brian [1983] (mud, blood and oil test)

• Taylor v Novo [2014]

• Paul and Anor v Royal Wolverhampton NHS Trust [2024]

in secondary victims and the proximity to the accident or its immediate aftermath, what must C be?

proximate to the accident itself or its immediate aftermath

what does this not include?

situations where the claimant does not witness an accident but suffers illness as a result of witnessing a death or medical crisis brought about by an untreated disease

what is an ‘accident’ in this context?

refers to an unexpected and unintended event in which injury (or the risk of injury) is caused by violent external means. for example, a road accident

what case supports secondary victims and witnessing the accident or its immediate aftermath with ones unaided senses?

Paul and Anor v Royal Wolverhampton NHS Trust [2024]

what did Paul and Anor v Royal Wolverhampton NHS Trust do with secondary victims witnessing the accident?

removed the requirement for a sudden shocking event and simply held that C must witness an accident with their own unaided senses

what does the Paul and Anor v Royal Wolverhampton NHS Trust specifically say?

The law was wrong to require claimants to prove that their psychiatric injury resulted from a sudden shock to the nervous system or that the event was sufficiently horrifying

what does the Paul and Anor v Royal Wolverhampton NHS Trust case mean that C has to do?

establish that there is a causal connection between the illness that they suffered and the event that they witnessed

what case supports damage to property?

Attia v British Gas plc [1988]

what case supports exposing oneself to danger?

Greatorex v Greatorex [2000]

what cases support occupational stress?

• Hatton v Sutherland [2002]

• Barber v Somerset County Council [2004]

what cases support delivering distressing news?

• AB v Tameside & Glossop HA [1997]

• Farrel v Avon [2001]

what does the case White Chief Constable of South Yorkshire [1999] say which entails reform?

“The law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify”

what does the Paul and Anor v Royal Wolverhampton NHS Trust say about reform?

These restrictions exist not because some psychiatric injuries deserve more compensation than others, but to limit claims to people who are most closely connected to the accident and to ensure the rules are clear, certain and easy to understand.

what does this specifically mean?

• The law isn't suggesting that one type of psychiatric injury is more deserving than another.

• The restrictions are there to prevent too many people from claiming compensation.

• They ensure only those closely connected to the accident can claim.

• The rules should also be clear and understandable.

what is the general reaction to this area?

has been heavily critiqued and there is an abundance of academic commentary in this area

what does Jane Stapleton argue about pure psychiatric harm?

that we should not allow any recovery for pure psychiatric harm

what has the Lae Commission put forward?

a number of recommendations for reform Law Commission, Liability for Psychiatric Illness