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Psychiatric Damage - General Outline

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Daniel Bedford

on 8 December 2013

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Transcript of Psychiatric Damage - General Outline

Psychiatric Damage - General Outline
Secondary Victims
Did the C suffer psychiatric harm as a result of the insensitive communication of shocking news?
• This occurs where the C sues the communicator of the news alleging that it was the manner of communication that caused shock resulting in the PD.

Wilkinson v Downton (1897)

Alcock v Chief Constable of South Yorkshire Police (1992)

Allin v City & Hackney HA (1996)

AB v Tameside & Glossop HA (1997)

Powell v Boldaz (1997)

Farrell v Avon Health Authority [2001]

Is there a recognized psychiatric illness?
In order to claim in negligence the individual must suffer a medically recognised psychological illness.

You cannot therefore claim for sensations or emotional disturbance that amounts to fear, mental distress or mere grief - Hinz v Berry (1970)

In Hicks v Chief Constable of the South Yorkshire Police (1992) the Court held that the fear (pre-death terror) experienced by a person prior to death did not constitute a medically recognized illness.

Physical injury may be included in this category where it is caused by nervous shock e.g. Heart failure, death or miscarriage - Dulieu v White [1901]

Was the C actually or potentially physically threatened by the negligence
• C suffers PD as a result of a shocking event and they exist within the zone of physical danger, which may leads them to reasonably fear for their own safety
Was the claimant shocked by D’s exposure of himself to danger?
Was there sufficient proximity in space and time of the C to the accident or immediate aftermath?

The C must be close in time and space to the shocking event. It cannot be based purely the product of grief rather than a reaction to the event causing the death or injury.

Immediate Aftermath
• Important factors may include – Time, Place/Purpose and Gore

Mcloughlin v O'Brian [1982]
Alcock v Chief Constable of South Yorkshire Police (1992)
Ravenscroft v Rederiaktiebolaget Transatlantic (1992) - COURT OF APPEAL OVERTURNED HIGH COURT DECISION - Pure notification by third parties is insufficient - THIS IS THE LAW
Taylor v Somerset (1993)
McCarthy v Chief Constable of SYP (1996)
Galli-Atkinson v Seghal (2003)

Also see live TV issue

Primary Victim
Was it reasonably foreseeable that the D’s negligence may cause physical harm to the C?

The C needs to be within the zone of physical danger in regards to the event.

Page v Smith (1996)

The C does not actually have to suffer psychiatric harm because they fear for their own safety, as long as they are in danger.

Young v Charles Church (Southern) Ltd (1997)
Providing physical injury was foreseeable than the individual can claim for any psychiatric harm that results from the incident (Page v Smith)

It is not necessary to prove that the C suffered physical harm.
Nor does the psychiatric harm need to be reasonably foreseeable.
Personal injury is the 'type of harm' that needs to be foreseen which encompasses both physical and psychiatric injury.

Page v Smith (1996) – Previously suffered from ME
Simmons v British Steel PLC (2004)

Egg Shell Skull Rule
Did the C witness danger or harm to others?
• D’s negligence causes injury to B or puts them in danger of injury and C suffers psychiatric harm because they witness the incident or the immediate aftermath
Consider Primary Victim Requirements
A D does not owe a DOC to others not to inflict shock upon them by the self-infliction of injuries.

Greatorex v Greatorex (2000)

Two possible explanations -

Policy - Family members should not be able to sue fellow family members in such situations. It would cause family strife that could be exacerbated by litigation.

Principle - Self-determination and autonomy about what happens to a persons body.
Self Infliction of Harm
Was the psychiatric harm reasonably foreseeable in a person of 'ordinary phlegm and fortitude'?
Used as a prima facie means to assess the validity of a C’s emotional reactions in the face of trauma

Bourhill v Young (1943)

If some psychiatric harm is foreseeable, the the D will - on the basis of the egg shell skull rule - be liable in full for any psychiatric damage suffered, even though a particular vulnerability means that the C suffers greater harm.

Brice v Brown (1984)
Consider secondary victim requirements
Alcock Control Mechanisms
Reasonable foreseeability

Proximity of the Claimant to the Victim - Close ties of love and affection
Proximity of the Claimant to the Accident - Proximity in Time and Space
The Means by which the Shock is Causes - Witness the accident with their own unaided senses

There is a rebuttable presumption for spouses, parents and children.

In other circumstances the C needs to prove such ties – including siblings

McFarlane v E.E. Caledonia Ltd (1994)

Robertson v Forth Road Bridge Join Board (1996)

McCarthy v Chief Constable of South Yorkshire (1996)

Did the C share close ties of love and affection with the Victim?
Was the means by which the trauma was caused sufficient? Did the C witness a single shocking event with their own unaided senses?

• PD must be sustained as a result of the sudden and direct appreciation of a shocking and horrifying event by sight or sound. Pure notification by third parties is insufficient - Ravenscroft

Sudden shocking event -

Sion v Hampstead HA (1994)
Northern Glamorgan NHS Trust v Walters (2002)

Live Television
• Alcock – Did not show particular individuals dying or injured.
• The case could not be seen as reasonably being capable of giving rise to shock, in the sense of a sudden assault on the nervous system. They were capable of giving rise to anxiety for the safety of those know to be present in the area of the crush
• Lords left open the possibility that a claim might be successful if a whilst watching a specific individual was identifiable and the broadcasters had no control over the images.

Was the C an involuntary participant?
• As a result of another’s negligence the C becomes an unwilling participant in the injury of another.

Involuntary Participants
Did the C suffer psychiatric injury as a result of believing that he is responsible for another’s death or injury?
Dooley v Cammell Laird and Co Ltd (1951)
Was the C proximate in time or space to the incident or its immediate aftermath?
It is unclear whether this is a necessary requirement

It has been held that proximity in time and space applies to involuntary participants who are not at risk of physical harm.

Hunter v British Coal Corporation (1999) –

Contradictory decision: W v Essex County Council (2000) – Not at the scene when abuse occurred

Did the C reasonably believe he was responsible?
The C must have a reasonable basis for a genuine believe that they may have caused the accident. It cannot be triggered off by an irrational feeling of responsibility.

Monk v PC Harrington (2008)


Is the individual a Rescuer?
• Where a rescuer at the scene of the incident suffers psychiatric harm from the what he witnesses.

Was the claimant in the zone of physical danger?

• A rescuer may be able to claim under the principles set out for primary victims where they expose themselves to a risk of physical danger

• Principle found in Chadwick , according to White.

Chadwick v. British Railways Board [1967]

Is the C owed a DOC without satisfying the requirements of a primary or secondary victim?

No - A claimant cannot recover for psychiatric illness just by virtue of being a rescuer.

White v Chief Constable of West Yorkshire Police (1998)

“Chadwick…not authority for the proposition that a person who never exposed himself to any personal injury can recover pure psychiatric injury as a rescuer.” White
Did the C suffer psychiatric damage as a result of damage done to property?
This occurs where the C sues the D for psychiatric damage because there property has been destroyed.

The Courts have (so far) refused to strike out a claim for psychological illness resulting from property damage. The Courts have preferred to treat the psychiatric harm as a matter of remoteness rather than duty of care.

Thus, the D owes a duty of care to not damage or destroy a persons property. The question is whether psychological illness was a reasonably foreseeable kind of damage resulting from breach of that duty.

Attia v British Gas PLC (1988) - NOTE THAT THIS CASE COMES BEFORE ALCOCK - It may be decided differently today.

Did the C suffer psychiatric damage as a result of fear for something that might happen in the future?
This occurs where the C sues the D for psychiatric damage because they fear that they may develop an illness or condition due to the defendants negligence.

Originally the principle in Page v Smith was applied. The Courts said so long as the D reasonably feared for their own physical safety, they can claim for psychiatric injury.

Group B Plaintiffs v Medical Research Council (2002)

The Courts have now held that Page v Smith only applies in cases where accidents have actually occurred and not in cases where the C fears something might happen.

Rothwell v Chemical Insulating Co. Ltd (2006)
Grieves v FT Everard and Sons [2007]

Did the C suffer psychiatric damage because they were subject to stressful working conditions?
This occurs where the C sues the D for psychiatric damage because they have been subjected to significant stress in the workplace.

A number of guidelines established in Hatton.

1. No special control mechanisms apply
2. Is the kind of harm to this particular employee reasonably foreseeable
3. Foreseeability depends upon what the employer knows (or ought to know) about the individual employee.........

Johnstone v Bloomsbury HA (1991)
Walker v Northumberland (1995)
Sutherland v Hatton (2002)
Barber v Somerset County Council (1995)

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