Tort - Psychiatric injury

‘pure’ psychiatric injury

only damage claimed is psychiatric in nature

NOT pure psychiatric injury:

• physical injury only caused by an accident

• physical injury resulting from an accident e.g. PTSD

• e.g. Fryers v Belfast Health and Social Care Trust [2009]

Fryers v Belfast Health and Social Care Trust [2009] NICA 57

• claimant employed by hospital and had to handle hospital waste and due to negligence, claimant suffered a puncture wound from a used needle in the waste

• needle was potentially contaminated with disease and the claimant developed psychiatric injury as a result

recognised psychiatric injury

• must be a recognised psychiatric injury

• claimant unable to sue if they only suffer grief and distress

• e.g. Hicks v CC of South Yorkshire [1992]

Hicks v CC of South Yorkshire [1992] 2 All ER 65

• liverpool v sheffield football match

• crush at the gates due to police negligence through security

• 97 people were killed

• claim brought by 2 girls killed; no evidence of personal injury before death

• Fear experienced before death was not a recognised injury

What is a recognised psychiatric injury?

• types of psychiatric injury which the law recognises as being enough to attract liability, if other elements of liability are met

• expert evidence is usually called upon

• e.g. PTSD, Reactive depression, anxiety neurosis

policy rationales behind the restrictive approach - Lord Steyn in White v CC of South Yorkshire Police [1998]

1. greater diagnostic uncertainty compared to physical injury

2. litigation might prolong recovery; unconscious disincentive to rehabilitation

3. floodgates might open; indeterminate liability

4. disproportionate liability; moment of lapse judgement may cause massive consequences

Physical injury caused by nervous shock: Victorian Railway Commisssioner v Coultas [1888] 13 App Cas 222

• demonstrates the bar on recovery for harm occasioned by nervous shock

• defendant opened a railway gate and as a result the plaintiff drove across the track and a speeding train almost hit them

• passenger suffered shock as a result

• bar to recovery was later lifted

Psychiatric harm through fear for another: Hambrook v Stokes Brothers [1925] 1 KB 141

• Lorry left unattended and without brakes secured

• Mother not in danger herself but told by bystanders that a child matching her daughters description had been injured

• Pregnant mother miscarried and died due to injuries caused by shock from the lorry

• allowed claim where shock was “realized by her own unaided senses that the shock was due to a reasonable fear of immediate personal injury either to herself or her children”

1st nervous shock case to reach HL: Bourhill v Young [1943] AC 92

• Defendant was the driver of a motorbike negligently driving too fast and collided with a car and was killed

• Claimant was 8 months pregnant and standing 13m from impact

• Heard the collision but vision was obscured

• Suffered shock which caused her baby to be stillborn

• HOL rules no liability as claimant isn’t in the area of potential danger so injury isn’t reasonably foreseeable

modern law in terms of primary victims:

• courts adopt a more generous approach to primary victims

• claimant can be in the zone of danger even if the defendant didn’t mean to put him in danger e.g. Donachie v CC of Greater Manchester [2004]

Donachie v CC of Greater Manchester [2004] EWCA Civ 405

• police negligently fail to provide C with proper surveillance device meaning he had to make repeated visits to a gangster’s car

• stress caused psychiatric condition and stroke

• reasonably foreseeable risk of physical injury, even if not the kind he actually suffered

primary victims definition

= those who suffer a recognised psychiatric injury at being physically imperilled by the defendant’s breach of duty

no shock requirement for primary victims

injury may be caused by the shock of the accident but injury may also be caused by ‘the accumulation over a period of time of more gradual assaults on the nervous system’ - YAH v Medway NHS Foundation Trust [2019]

YAH v Medway NHS Foundation Trust [2019] 1 WLR 1413

• suffered anxiety and depression due to a traumatic birth

• baby diagnosed with cerebral palsy

• hospital found negligent delay of delivery the baby after distress was seen on the scars the baby has

primary victim foreseeability: Page v Smith [1996] 1 AC 155

• C involved in a road accident caused by D’s negligence that caused him no physical injury, only property damage

• accident aggravated pre-existing chronic fatigue syndrome and it became permanent after the accident

• sued D in negligence for the psychiatric injury suffered

• majority held that a duty was owed

Lords on Page v Smith

Lord Lloyd - thought there wasn’t much distinction between physical and psychiatric injury

Lord Keith - C should be required to prove that ‘it was reasonably foreseeable that he would suffer such nervous shock as was capable of leading to some identifiable illness’

Lord Goff - believed there was no precedent supporting the majority approach (CRITICISM)

SV Rothwell v FT Everard & Sons [2007] UKHL 39

• C suffered a recognised psychiatric injury (depression) at the prospect of developing an asbestos-related disease in the future - claim rejected

• “It would be an unwarranted extension of the principle in Page v Smith to apply it to psychiatric illness caused by apprehension of the possibility of an unfavourable event which had not actually happened” - Lord Hoffman

Secondary victims according to Alcock

“no more than a passive and unwilling witness of injury caused to others” or the immediate aftermath of the accident

foreseeability requirement for secondary victims

• has to show that a psychiatric injury is reasonably foreseeable

• must be reasonably foreseeable that the event which actually happened would cause a person of reasonable fortitude (aka ‘customary phlegm’) would suffer a psychiatric injury

Brice v Brown [1984] 1 All ER 997

• D doesn’t take C as he finds him if C suffered a psych injury because C was abnormally sensitive

• not reasonably foreseeable that C would be affected

• BUT if a person of reasonable fortitude might foreseeably have suffered a psych injury, the fact C might suffer more because of pre-existing vulnerability doesn’t matter

• D will take C as he finds him

Eggshell skull rule

idea that a defendant takes a victim as they find them so long as the injury is reasonably foreseeable

additional proximity criteria:

• unlike primary victims, SV can’t bring their claim based on reasonable foreseeability of harm alone

• more requirements so floodgates aren’t opened and there aren’t too many successful claims

• referred to as ‘control mechanisms’ for liability by Lord Lloyd

McLoughlin v O’Brian [1981] QB 599

• Husband and children of C were in a car accident

• C went hospital when told and found out her daughter had been killed

• Saw her husband and children in a distressed state

• Sued for psychiatric injury suffered from seeing her family

• HL allowed claim, but difficult to find precise ratio

McLoughlin per Lord Wilberforce

• Liability should not depend on foreseeability alone due to floodgates risk

• Ordinary bystanders shouldn’t be able to recover as secondary victims

• spouses and parent/child relationships satisfy requirements

• RPI must be brought about “through sight or hearing of the event or of its immediate aftermath”

McLoughlin per Lord Wilberforce 3 elements

1. class of persons whose claims should be recognised (who were they to the primary victim)

2. proximity to the accident

3. means by which shock was caused

SV: Alcock v CC of South Yorkshire Police [1992]

• Hillsborough disaster

• 10 claims reach HL but none successful

• Some of the relationships would’ve represented an extension to the law

• Some of the claims on how the shock was brought about would have broken new ground e.g. saw events unfold on TV

Alcock proximity criteria

• must have been close ties of love and affection between the claimant and the person endangered

• claimant must have been in temporal and spatial proximity to the event or its immediate aftermath

• AND claimant must have perceived the event or its immediate aftermath by his unaided senses

Paul v Wolverhampton [2024]

UKSC clarified what it meant by ‘event’. ONLY ACCIDENTS AND THE IMMEDIATE AFTERMATH count as an event

Close ties of love and affection - Lords views

Lord Keith - claimants must produce evidence to demonstrate the close tie if not on the list

Lord Ackner - “has to be decided on a case by case basis”

Successful examples of close ties outside of non-presumed relationships:

• siblings: Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 (QB)

• half-siblings: McCarthy v CC of South Yorkshire Police [1996]

• work colleague and close friend: Murray v Mabrouk [2021] EWHC 3461 (QB)

• good friend: Burdett v Dahill [2022[

C imperilled themselves

• Lord Oliver suggested NOT in Alcock

• affirmed by Greatorex v Greatorex [2000]

Greatorex v Greatorex [2000] 1 WLR 1970

• D seriously injured in a orad accident due to his own fault

• C (fire officer and D’s father) attended the scene and suffered PTSD from seeing D’s injuries

• No claim

Example of insufficient proximate in space and time: Tranmore v TE Scudder LTD [1998]

arrival at accident scene 2 hours after the event

Taylore v A Novo [2014] QB 150

• victim injured at work and takes time off

• injury causes her sudden death 3 weeks later Infront of her daughter

• COA rejects daughter’s claim as a SV

Implications of Taylor v Novo

• - Courts shouldn’t develop the law any further than Alcock

• - Novo interpreted as closing off SV liability as SV will often witness death rather than the relevant ‘event’ or it’s immediate aftermath

Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB)

• Doctor negligently failed to diagnose a heart condition

• Mr Paul collapsed due to heart attack 14 months later

• witnessed by his 2 children

• Judge permitted claim and said unlike Novo, there was only 1 event which was the collapse itself

Paul [2022] Court of Appeal

• CA overturned; held bound by Novo

• Lords not happy and expressed doubt that Novo was correctly decided

• Alcock principles apply whether clinical negligence or accident case

• relevant ‘event’ for SV to witness must not be separate in time from the negligence of the defendant

Paul [2024] UKSC

• majority of the SC held that SV can only bring a claim from witnessing an accident or its immediate aftermath

• accident is defined as “an unexpected and unintended event which caused injury (or risk of injury)by violent external means to one or more primary victims”

• UKSC agreed with the outcome of CA but not it’s interpretation of Novo; the event to witness doesn’t have to be close in time to the defendant’s negligence

Why accidents? - Paul

• not sufficient for SVs to witness injury caused by accident (Alcock)

• “no ready or obvious analogy can be drawn” from accident cases “to cases where the claimant witnesses injury not caused by external accident”

• an accident is a discrete event that happens at a particular time, at a particular place in a particular way

• difficult to distinguish whether injury arises out of fear for oneself (PV) or fear for another (SV) e.g. we have to allow SV claims in accident context or else the law begins to look arbitrary

Summary of Paul

• Paul limited SV claims to witnessing accidents - that is the relevant ‘event’

• doesn’t matter that an accident may be separate in time from D’s negligence for the purposes of a SV claim

• future cases will no doubt raise issues of accidents in medical contexts

• medical negligence seems largely closed off to SV claims

Young v Downey [2025] EWCA Civ 177

• C was 4 years old and watched father leave and heard an explosion

• Judge rejected SV claim as she did not appreciate her father had been in the explosion at the time

• CA: Judge shouldn’t have rejected expert evidence that found C did appreciate her father was involved in the bombing

• C won

Psych injury must be brought about by perceiving event/aftermath with our unaided senses

• no liability where shock is caused by being informed by 3rd party

• TV broadcast in Alcock; didn’t depict any individuals due to broadcasting ethics

No sudden shock requirement for SV - clarified by UKSC in Paul

Language of shock in earlier cases tied to outdated understandings of how psychiatric injury is caused in accident cases

Criticism of Alcock

“I cannot, for my part, regard the present state of the law as either entirely satisfactory or as logically defensible” - Lord Oliver in Alcock

“A patchwork quilt of distinctions which are difficult to justify” - Lord Steyn in White v CC of South Yorkshire Police [1992] 2 AC 455, 500

Rescuers

• historically looked like rescuers were owed a DOC in virtue of being rescuers

• e.g. Chadwick v British Transport Commission [1967] 1 WLR 912

• Lewisham railway disaster; killed 90 people

• Mr Chadwick helped and suffered psychiatric injury as a result of his experiences

• claim permitted

Post-Alcock treatment of rescuers

• Chadwick has since been reinterpreted as a primary victim case

• no special treatment of rescuers

• difficulties in practice reclaiming as a SV given requirement of close ties of love and affection

White v CC of South Yorkshire [1992] 2 AC 455

• Police officers bringing claims against the force for PTSD suffered as a result of tending to victims

• claims rejected; not accepted that employment relationship should give rise to DOC

• employer’s DOC may extend to psych injury but not where the claim is based on the worker’s reaction to witnessing the injury or endangerment of a 3rd party on a particular occasion

Involuntary participants: Dooley v Cammell Laird & Co [1951] 1 Lloyd’s Rep 271

• C was a carne driver who suffered nervous shock when a rope snapped and fell onto a ship hold

• fell onto nobody but C thought it did; claim permitted

• D put the C in the position that he is responsible for the accident creates sufficient proximity

Workplace stress

• Employees may be owed a DOC in respect of psych injury

• Employee is known to the employer so the employer should know of vulnerabilities and that should be take into account in the foreseeability tests

• Employer doesn’t have to search for vulnerabilities but they may assume the employee is up to normal standards unless stated otherwise

Workplace stress: Walker v Northumberland County Council [1995] 1 All ER 737

• manager of a social services team; pressure of work increased

• 2 nervous breakdowns and had to retire

• Court said employer owes duty to provide employee with a safe system of work and prevent risks that are foreseeable

Psychiatric harm caused by damage to, or endangerment of, property: Attia v British Gas [1988] QB 304

• CA refused to strike out claim for psych injury arising from defendant’s negligent destruction of C’s house by a fire

• C arriving home witnessed fire

• Test is reasonable foreseeability of psychiatric harm caused by property damage

Law Com Report No 249 on Liability for Psychiatric Illness [1998]

• recommended a legislative scheme of reform, but not taken up by a government

• courts should continue to require a recognised psychiatric illness

• no scientific basis for requiring that the illness is shock-induced → now been reformed in Paul [2024]

• PV/SV distinction unsatisfactory and basis for recovery shouldn’t depend on this distinction