Psychiatric Injury

What is psychiatric injury?

A severe long term mental injury which is more than shock or grief.

Liability for Psychiatric Injury

• Claims developed by judges by their decisions in court. 

• Judges developed policy reasons to restrict the number of claims, especially by secondary victims - like pure economic loss. 

• Often loss of earnings due to severity of mental injury so the claimant is unable to work. 

• Primary victims have to prove negligence - no restrictions on these claims 

• But there are restrictions on secondary victims

What is psychiatric injury?

A severe long term mental injury which is more than shock or grief.

Liability for Psychiatric Injury

• Claims developed by judges by their decisions in court. 

• Judges developed policy reasons to restrict the number of claims, especially by secondary victims - like pure economic loss. 

• Often loss of earnings due to severity of mental injury so the claimant is unable to work. 

• Primary victims have to prove negligence - no restrictions on these claims 

• But there are restrictions on secondary victims

Who is a primary victim?

Someone who is directly involved in the accident. Have to prove the accident was due to the negligence of the defendant.

Who is a secondary victim?

A person who witnesses an accident or tragic event but is not directly involved in it. Have to prove: 

• Accident was due to the negligence of the defendant  

• Proof of a recognised mental injury 

• Claimant passes the Alcock criteria:

- Close ties of love and affection 

- Mental injuries suffered at the scene or immediate aftermath 

- Shock suffered through unaided senses

• That a reasonable person would have suffered the same injury in the circumstances.

Mental injury what is it?

PTSD, reactive depression, acute anxiety.

Secondary victim needs to provide medical evidence.

More than shock- prevents C from working.

C can claim for loss of earnings

Must come from a sudden event.

Dulieu v White 1901 

Initially, judges were suspicious of claimants with mental injuries. A claim could be made only if the claimant suffered mental injury as a result of fearing for their own safety.

Hambrook v Stokes 1925

It was then further established in this case that a claim could be made by those suffering shock due to fearing for the safety of a family member.

Bourhill v Young 1943

Confirmed previous cases - mental injury had to be suffered due to injury to oneself or a member of family. The person able to claim must fall within a foreseeable range of people who could be affected by the negligence. In this case, there was no liability as mental injury not suffered due to injury to oneself or a member of family.

McLoughlin v O Brien 1982

This case developed the law to deal with mental injury suffered a short time after an accident whereas before, a claim could only be made by someone at the scene of the accident. In this case, a claim was successful because the mental injury was suffered within 2 hours (the immediate aftermath) and the injuries were to family members.

Two principles set:

1. A claim could be made by someone who had close ties of love and affection with a victim. 

2. The shock could be suffered either at the scene of the accident or within its immediate aftermath. No time set - 2 hours after.

Close ties of love and affection?

• Not defined 

• Blood relatives (distant relatives and close friends or those in a relationship with the victim) 

• Courts need proof

• Can suffer shock up to 2 hours after the accident and as a result of what was seen at the scene of the accident or in an ambulance or at hospital.

Alcock v Chief Constable of South Yorkshire 1992

This case established the Alcock Criteria after the influx of claims following the Hillsborough disaster due to the negligence of the police.

The Alcock criteria: 1- Claimant had to have close ties of love and affection. 

1. Claimant had to have close ties of love and affection. 

   • Blood related 

   • In a relationship 

   • Close friend 

   • Needs proof

   • Previous contacts, visits, phone calls 

   • Difficult when claimants are struggling with their illness and grief

2- Claimant suffered mental injuries at the scene or in its immediate aftermath. 

• ‘Immediate aftermath’ - not defined but 2 hour period in McLoughlin v O’Brien approved

• Alcock - claimants saw bodies of family members in mortuary 8 hours after the event and were unsuccessful in their claims. 

• If claimants suffer shock nearer 2 hours then 8 hours, they will be successful

3- The claimant suffered shock through their own unaided senses 

• They saw or heard the accident or its aftermath 

• Not through media - TV, radio, phone call, social media 

Why does all this need to be proven? - Alcock v Chief Constable of South Yorkshire 1992

• Potential claims would be enormous 

• Injured, players, officials, support staff, spectators, stewards, emergency services, families at home watching on TV. 

• For Hillsborough - cost would have fallen on police and insurers and possibly the state.

Who else can claim for psychiatric injury?

1- Rescuers

2- Bystanders

3- Property owners

4- ‘Near misses’

5- Those suffering gradual rather than sudden shock

Rescuers:

• Have to be actively involved in helping victims of the accident.

• Likely a claim for mental injuries suffered in rescuing will be allowed- courts do not wish to discourage rescuing.

Chadwick v British Rail 1967

It was established in this case that rescuers could be classed as primary victims if they physically put themselves in danger. This was because the court did not want to discourage members of the public from rescuing if required. 

White v Chief Constable of South Yorkshire 1998

However, if rescuers do not put themselves physically at risk, they are secondary victims and will have to satisfy the Alcock criteria. Claims were denied as they did not put themselves at risk. Rescuers are known as secondary victims if they do not put themselves in danger.

Bystanders:

• Witnesses to an accident or aftermath who do nothing to help.

• Secondary victims so have to pass Alcock criteria.

McFarlane v E E Caledonia 1994

Claimant was on board a supply ship when oilrig exploded in the North Sea. He witnessed the explosions and the rescue of the survivors and suffered psychiatric injury as a result of what he saw - he did not help in the rescue. Claim failed because he was a bystander and did not satisfy the Alcock criteria. Bystanders are known as secondary victims.

Property owners: women did not witness the accident but suffered shock where she saw her house burn down. Attia v British Gas 1987

A woman asked British Gas to install central heating whilst at work. When she returned home, she saw smoke coming from her house but by the time the fire services arrived, her house had burned down and was completely destroyed. Fire was caused by negligence of British Gas. Claimant suffered severe shock from seeing her house destroyed. Claim allowed as she was within the area. Property owners can make a claim for psychiatric injury.

‘Near misses’ 

• Close to the scene of the accident and may have suffered physical or mental injuries. 

• Primary victims - can claim if they prove negligence 

• Does not have to be related to the victim of the accident

Those suffering gradual rather than sudden shock:

• Usual claimant being a victim who has suffered mental injury as a result of witnessing a sudden event. 

• Attempts to extend claims to those who suffer mental injury as a result of gradual events rather than a sudden shock. 

Sion v Hampstead Health Authority 1994

Claimants son was injured. Taken into hospital where he went into a coma and died in 14 days. Claimant claimed he suffered psychiatric injury from witnessing his deteroriation. Claimed against the hospital, alleging the negligent treatment of his son caused him to suffer psychiatric injury. Court decision: no sudden event but a gradual decline - no claim.

North Glamorgan NHS Trust v Walters 2002

Doctors negligently failed to diagnose claimants 10 month old sons liver failure. Taken by ambulance to another hospital for a liver transplant- claimant followed. When arrived, was told her son had suffered severe brain damage following a seizure. She agreed to turn off his life support system. She suffered pathological grief reaction over 36 hours. Court- sudden appreciation of horrifying events. Can claim if there is gradual shock due to lots of sudden events.

Remedies

Damages (money) for loss of earnings from work.