Obligations, Tort - Negligence, Psychiatric injury and economic loss

Defining Psychiatric injury

A non-physical (though not purely) reaction to witnessing a traumatic event, which may be disproportionate, or unrelated to the negligence itself.

It originated as ‘nervous shock’ in the 20th century, and was difficult to distinguish from physical harm, opposing pure psychiatric harm from witnessing an event - this has to be diagnosable to strengthen the claim, as distress may not be enough. Primary and secondary victims also need to be distinguished.

Early psychiatric injury liability and Dulieu v White & Sons [1901]

It initially needed to be accompanied by physical harm or consequence. Awareness of mental illness grew with increasing incidents from more common motors, railways, factories, etc.

Dulieu v White & Sons [1901] - Premature birth came from a pregnant C watching a horse cart drive into the pub she was in - successful claim.

Diagnostic basis of psychiatric injury

Grief, sorrow, and other emotions are part of life - these must be separated from psychiatric and psychological harms from traumatic events. However, these diagnoses are constantly changing and are impacted by culture, society, and time.

Reluctance to compensate psychiatric injuries

Mental health understanding and stigma initially barred compensation, as well as the fear of them being easy to fake - links to the ‘opening of the floodgates’ and the unsustainable weight on the courts. Coverage from 24/7 media could also exacerbate this.

Primary vs secondary victims and Bourhill v Young (1943)

Primary victims have an easier claim, only requiring a reasonable fear for your safety when it should have been foreseeable for the D, including negligent near misses - though there are some issues with this. Secondary victims have more difficulties in recovering due to policy concerns.

Bourhill v Young (1943) - C suffered psychiatric harm and a stillbirth as a result of witnessing the immediate aftermath of a motorcycle accident - rejected, as the reaction was unforeseeable. It would be unfair to extend duty of care for drivers to include those with such strong sensitivities.

Foreseeability of psychiatric harm in Brice v Brown (1984) and Rothwell v Chemical & Insulating Co Ltd (2007)

Brice v Brown (1984) - C being prone to depression is irrelevant to recovery of damages.

Rothwell v Chemical & Insulating Co Ltd (2007) - Anxiety for the worsening of lung damage was not sufficient for a claim.

Secondary victim criteria

Time, space / geography (proximity), causation of injury, and a relationship to the primary victim of negligence (right kind, where it would be foreseeable that witnessing such an event would result in psychiatric harm).

Psychiatric harm in Alcock v Chief Constable of South Yorkshire Police [1992]

In the 1989 FA cup in Sheffield, the Hillsborough disaster meant dozens of football fans were killed due to police negligence in regulating the crowd. Loved ones of the victims tried to claim as secondary victims, though they were never in physical danger themselves (some witnessed the scene’s aftermath, or saw it on TV). It failed on the grounds of proximity to both victims (siblings and friends were not close enough) and the event (space and time not sufficient).

Psychiatric harm in White v Chief Constable of South Yorkshire Police [1999]

Police officers suffered psychiatric illness resulting from witnessing Hillsborough, from aiding the injured and dying, and comforting relatives at the morgue. They failed on the ground of close ties of love and affection to victims - though some were successful at the Court of Appeal, the House of Lords restored this decision on policy grounds.

Rescuers, Chadwick v British Railways Board (1967) and Dooley v Cammell Laird & Co (1951)

Rescuers are generally not considered a separate category, but in line with case law based on facts.

Chadwick v British Railways Board (1967) - rescuers were considered special victims since putting yourself in danger to rescue can make you a primary victim.

Dooley v Cammell Laird & Co (1951) - no physical injury, but a fear of having killed a work mate was sufficient for a claim.

Post-Alcock developments in Galli-Atkinson v Seghal (2003) and Crystal Taylor v A Novo (UK) Ltd (2013)

Galli-Atkinson v Seghal (2003) - A mother witnessing her daughter’s dead body 2 hours after her death due to negligence fell within immediate aftermath.

Crystal Taylor v A Novo (UK) Ltd (2013) - Daughter collapsed and died of pulmonary embolism resulting from her employer’s negligence - her mother witnessed this, but not the negligent accident, so could not claim, since she had only witnessed the consequences of negligence, not the negligence itself.

Psychiatric injury in Paul, Polmear and Purchase [2024] joint appeal.

Paul - 2 young daughters saw their father collapse and die from a heart attack due to medical negligence.

Polmear - parents attempted to resuscitate their young daughter after her treatment was neglected.

Purchase - heard daughter dying through voice message left on phone and witnessed the collapse.

All failed in the Court of Appeal since they had not seen the negligence itself, and the UKSC upheld this - medical professionals’ duty of care does not expand to family members, for reasons of fairness, policy, tax funding spending, and fear of defensive practice.

Economic loss and Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] (CA)

These are pecuniary losses directly from the omission or negligent act, not a byproduct. This can be pure economic loss or consequential economic loss (such as costs associated with personal injury or damage to property). There is typically no duty for pure economic loss.

Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] (CA) - factory had to close for a few days due to contractors working, resulting in loss of profit from pausing operations. Courts denied the claim, suggesting it is the normal risk of running a business.

Economic loss in Hedley Byrne & Co Ltd v Heller and Partners [1963] UKHL 4 (HL)

Negligent advice and accounts given from a bank to an agency of a client they wished to know the financial matters of to buy meant the agency lost money. There was a disclaimer citing that they were a bank so could not be liable BUT obiter suggested negligent advice could create tortious liability and compensation.

This suggestion included four elements of a special relationship of trust and confidence, voluntary assumption of risk, reliance on the advice, and reasonableness in the circumstances.

Economic loss in Murphy v Brentwood District Council [1991] and Anns v Merton London Borough Council [1978]

Murphy v Brentwood District Council [1991] - council sold a house with faulty foundations with disclosing it to buyers - it required repairs and the value was lowered (additional loss on top of purchase price). The courts rules no duty, since there was no threat to safety.

Anns v Merton London Borough Council [1978] - A damaged house was bought from the council, and compensation was awarded for the physical and economic losses.

Special (fiduciary) relationship

This references trust and reliance within a relationship - there are duties of trust for the expert advice.

Voluntary assumption of risk

Giving advice without a disclaimer can be seen as taking on liability - defined advice may not be given (verbal, etc).

McFarlane v Tayside Health Board [1999] - costs of raising a child not recoverable after negligent sterilisation (advice).

Rees v Darlington Memorial Hospital NHS Trust [2003] - damages awarded for negligent misstatement after damage to mother’s autonomy.

Customs & Excise Commissioners v Barclays Bank [2006] - Legal obligations to act on client’s wishes meant there was no voluntary assumption of responsibility.

Reasonable reliance on advice in Caparo Industries plc v Dickman [1990]

There was no duty for economic loss as the negligent reports had been prepared by D for shareholders, not potential investors. There was no reasonable reliance on the advice, so there could be no special relationship.

Developments for economic loss after Caparo and Murphy in White v Jones [1995]

Economic loss suffered by daughters of a man whose solicitor failed to redraft will was awarded under negligent provision of services.