Negligently inflicted psychiatric injury

The law adopts a restrictive approach in awarding damages for negligently inflicted psychiatric injury. In
addition to the Caparo test for imposing a duty of care, the courts have laid down several obstacles
which must be satisfied by claimants in order to establish liability. Firstly   there must be an actual
psychiatric injury, mere emotions of fear, worry, grief or sorrow are not sufficient:
Hinz v Berry [1970] 2 QB 40  Case summary

Reilly & Anor v Merseyside Regional Health Authority [1994] EWCA Civ 30

The law draws a distinction between primary and secondary victims see:

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310

 
This case arose from the events of the Hillsborough disaster in which 95 people were crushed to death
at a football match due to the negligence of the police. The claim was made by relatives of the victims
who had each suffered psychiatric injury as a result of witnessing the disaster.

Primary victims are those in the zone of physical danger. Primary victims only need to establish that
physical harm was foreseeable. There is no requirement to establish that psychiatric injury was
foreseeable:

 
Page v Smith [1996] 1 AC 155

 
 
A primary victim does not owe a duty of care to a secondary victim:
Greatorex v Greatorex [2001] 1 WLR 1970
 
Secondary victims are those not within the physical zone of danger but witnesses of horrific events.
Secondary victims must demonstrate the four Alcock criteria are present in order to establish liability:
 
1. A close tie of love and affection
 
2. Witness the event with their own unaided senses
 
3.Proximity to the event itself or its immediate aftermath
 
4. Psychiatric injury must be a result of a shocking event. 

 
 1. Close tie of love and affection

This will be presumed in parent and child and between spouses but must be proved in other
relationships including brother and sister.

 
 
 
2. Witness the event with own unaided senses

Seeing the events on television is not sufficient.

 
3. Proximity to the event itself or its immediate aftermath:

The relatives that had visited the make shift mortuary to identify loved ones was held not to come
within the immediate aftermath of the event.

McFarlane v E. E. Caledonia [1994] 1 Lloyd's Rep 16

Taylorson & Anor v Shieldness Produce Ltd [1994] PIQR 329

McLoughlin v O'Brian [1982] 2 WLR 982

 
4. Psychiatric injury must be caused by a shocking event.

 
Sion v Hampstead Health Authority [1994] EWCA Civ 26 - A father's claim failed due to lack of 'shocking
event' where he suffered severe depression on witnessing son's death due to medical negligence.

 See also:
 W v Essex County Council [2000] 2 WLR 601
Barrett v Enfield LBC [1999] WLR 79

 An exception to this is in relation to work related stress where an employer is under a duty not to cause
psychiatric injury to an employee but only where the injury is foreseable:
Barber v Somerset County Council [2004] 1 WLR 1089
Sutherland v Hatton [2002] 2 All ER 1
Rescuers

 
Lord Oliver in Alcock had originally classed rescuers such as seen in Chadwick v British railways Board
[1967] 1 WLR 912 as primary victims for policy reasons. Rescuers should be encouraged rather than
deterred. However this position was changed in White v Chief Constable of South Yorkshire. Resuers are
now to be given no favourable treatment. Neither are employees:

White & Ors v Chief Constable of South Yorkshire [1998] 3 WLR 1509

 
Those who believe they are the cause of anothers death:

Hunter v British Coal Corp [1998] 2 All ER 97

 
Psychiatric injury in consequence of property damage:

Attia v British Gas [1988] QB 304

 
Further reading

Law Commission Report - Liability for Psychiatric injury 1998

 Negligently inflicted economic loss

 
Generally no duty of care is owed to avoid causing another to suffer a loss which is purely economic. I.e.
One where the financial loss is not related to a personal injury or damage to property. See:

Spartan Steel & Alloys Ltd v Martin [1972] 3 WLR 502

However, where the economic is caused by negligent mis-statement as oppose to a negligent act liability
may be imposed as established by a House of Lords obiter in:  

Hedley Byrne & Co v Heller [1963] 3 WLR 101

Anns v Merton London Borough Council [1978] AC 728

Murphy v Brentwood District Council [1991] 1 AC 398

Caparo Industries Plc v Dickman [1990] 2 AC 605

Gorham v British Telecommunications Plc [2000] EWCA Civ 234

Henderson v Merrett Syndicates [1995] 2 AC 145

Junior Books Ltd v Veitchi [1982] 3 WLR 477

McFarlane v Tayside Health Board [2000] 2 AC 59

Parkinson v St James [2001] 3 WLR 376

Rees v Darlington Memorial Hospital NHS Trust [2003] 3 WLR 1091

Reid v Rush & Tompkins Plc [1990] 1 WLR 212

Merrett v Babb [2001] 3 WLR 1

Simaan General Contracting Co v Pilkington Glass Ltd  [1988] QB 758

Smith v Eric S Bush [1990] 1 AC 831

South Australia Asset Management Corp v York Montague [1996] 3 WLR 87

 A duty of care may exist even where the defendant would have a defence to an action in defamation: 

Spring v Guardian Assurance [1994] 3 WLR 354

White v Jones [1995] 2 WLR 187

Williams v Natural Life Health Foods [1998] 2 All ER 577
 Volenti non fit injuria

Volenti non fit injuria is a defence of limited application in tort law.  A direct translation of the latin
phrase volenti non fit injuria is, 'to one who volunteers, no harm is done'. Where the defence of volenti
applies it operates as a complete defence absolving the Defendant of all liability. It is often stated that
the Claimant consents to the the risk of harm, however, the defence of volenti is much more limited in
its application and should not be confused with the defence of consent in relation to trespass.   The
defence of volenti non fit injuria requires a freely entered and voluntary agreement by the Claimant, in
full knowledge of the circumstances, to absolve the Defendant of all legal consequences of their
actions. There is a considerable overlap with contributory negligence and since the introduction of the
Law Reform (Contributory Negligence) Act 1945, the courts have been less willing to make a finding of
volenti preferring to apportion loss between the parties rather than taking an all or nothing approach.
 
 The requirements of the defense are thus:
  
1. A voluntary
 
2. Agreement
 
3. Made in full knowledge of the nature and extent of the risk.
 
1. Voluntary
The agreement must be voluntary and freely entered for the defence of volenti non fit injuria to
succeed. If the Claimant is not in a position to exercise free choice, the defence will not succeed. This
element is most commonly seen in relation to employment relationships, rescuers and suicide.
 2. Agreement

The second requirement for the defence of volenti non fit injuria is agreement. The agreement may be
express or implied. An example of an express agreement would be where there exists a contractual term
or notice. However, this would be subject to the controls of s.2 of the Unfair Contract Terms Act 1977.
An implied agreement may exist where the Claimant's action in the circumstances demonstrates a
willingness to accept not only the physical risks but also the legal risks. 
  
Nettleship v Weston [1971] 3 WLR 370
 
Lord Denning:

"Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to
waive any claim for negligence. The plaintiff must agree expressly or impliedly to waive any
claim for any injury that may befall him due to the lack of reasonable care by the defendant: or
more accurately due to the failure by the defendant to measure up to the duty of care which the
law requires of him".
 
 Smith v Charles Baker & Sons [1891] AC 325  Case summary
 
Lord Watson:
"In its application to questions between the employer and the employed, the maxim as now
used generally imports that the workman had either expressly or by implication agreed to take
upon himself the risks attendant upon the particular work which he was engaged to perform,
and from which he has suffered injury. The question which has most frequently to be considered
is not whether he voluntarily and rashly exposed himself to injury, but whether he agreed that,
if injury should befall him, the risk was to be his and not his masters.
 
3. Knowledge
  
The Claimant must have knowledge of the full nature and extent of the risk that they ran:

Wooldridge v Sumner & Anor [1963] 2 QB 43 Case summary 

The test for this is subjective and not objective and in the context of an intoxicated Claimant, the
question is whether the Claimant was so intoxicated that he was incapable of appreciating the nature of
the risk:
 
Morris v Murray [1991] 2 QB 6  Case summary 
 
Volenti non fit injuria in employment relationships
  
As long ago as 1891, the House of Lords recognised that an employee who complained of unsafe
practice, but nevertheless continued to work could not truly be said to have voluntarily agreed to waive
their legal rights:
 
Smith v Charles Baker & Sons [1891] AC 325  Case summary
 
This position of the law was affirmed in:
 
Bowater v Rowley Regis Corporation [1944] KB 476  Case summary
 
As a matter of public policy, the defence is not generally available where an employer is in breach of
statutory duty, however limited exceptions exist to this:
 
Imperial Chemical Industries Ltd v Shatwell [1965] AC 656  Case Summary
 
Volenti non fit injuria - rescuers
 
A rescuer is not regarded as having freely and voluntarily accepted the risk:
 
Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Case summary
 
This applies to professional rescuers:
 
Haynes v Harwood [1935] 1 KB 146 Case summary
Ogwo v Taylor [1987] 3 WLR 1145 Case summary

If however, there is no real need to rescue, the Claimant may be held volens:

Cutler v United Dairies [1933] 2 KB 297 Case summary

 
Volenti non fit injuria - Suicide 
 
Where the Claimant commits suicide, originally it was held that they would be treated as volens if they
were of sound mind, but if they were of unsound mind the defence of volenti non fit injuria  would have
no application:
 
Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283  Case summary 
 
However, this distinction was abandoned as it would essentially deprive the duty of substance:
 
Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360  Case summary
 
Volenti non fit injuria in context of sporting events
 
A participant in sporting events is taken to consent to the risk of injury which occurs in the course of the
ordinary performance of the sport.
 
Condon v Basi [1985] 1 WLR 866  Case summary
 
This was also taken to apply to spectators at sporting events:
 
Wooldridge v Sumner & Anor [1963] 2 QB 43  Case summary
 
This principle has also been held to apply outside of sports, to a high spirited 'game':
 
Blake v Galloway [2004] 3 All ER 315  Case summary

Volenti non fit injuria in relation to drunk drivers

 
In Dann v Hamilton [1939]  1 KB 509 (Case summary) it was held that a person accepting a lift from a
drunk driver was not to be treated as volens unless the drunkenness was so extreme and so glaring that
accepting a lift would be equivalent of to intermeddling with an unexploded bomb or walking on the
edge of an unfenced cliff.
 
An example of where this was successfully invoked can be seen:
 
Morris v Murray [1991] 2 QB 6  Case summary 
The impact of s.148(3) of the Road Traffic Act 1972 (Now s.149(3) RTA 1988) was considered in Pitts v
Hunt and it was held that it precluded the application of the defence of volenti in circumstances where a
person accepted a lift from an intoxicated driver in circumstances where the driver was subject
to compulsory insurance.
 
Pitts v Hunt [1990] 3 All ER 344  Case summary
 
Volenti non fit injuria - Occupiers Liability
 
 S. 2(5) Occupiers' Liability Act 1957 and s. 1(6) of the Occupiers' Liability Act 1984 provide that occupiers
owe no duty in respect to risks willingly accepted by that person as his. It appears that there is no need
to establish an agreement.
 
For an application of the Scottish equivalent provision see:
 
Titchener v British Railways Board [1983] 1 WLR 1427 Case summary
Contributory negligence

At common law, contributory negligence acted as a complete defence. However, under the Law Reform
(Contributory Negligence) Act 1945, contributory negligence operates as a partial defence whereby the
courts can apportion loss between the parties. This makes it a more attractive option to the courts than
other defences which can operate harshly and absolve a defendant of liability no matter how much at
fault they may be. Consequently the defences of volenti non fit injuria and ex turpi causa are perhaps of
less significance.
 
S.1(1) Law Reform (Contributory Negligence) Act 1945 provides that where a person suffers damage as a
result partly of  his own fault and partly the fault of another(s), a claim shall not be defeated by reason
of the fault of the person suffering damage. Thus contributory negligence operates as a partial defence.
At first instance in Pitts v Hunt [1990] 3 All ER 344 (Case summary) the court used this section to find
that the Claimant was 100% contributory negligent. However, this was held to be illogical and
inconsistent with the wording of the Act which requires the damage to be partly the fault of both
parties.
 
Contributory negligence can operate in three party situations. The courts must, however, always assess
the degree to which the Claimant contributed to his own injury:
 
Fitzgerald v Lane [1989] 1 AC 328    Case summary
 
Stapley v Gypsum Mines [1953] AC 663    Case summary
 
Capps v Miller [1989] 1 WLR 839       Case summary

Froom v Butcher [1976] QB 286         Case summary

Gough (an infant) v Thorns [1966] 1 WLR 1387   Case summary

Jones v Livox Quarries [1952] 2 QB 608

O'Connell v Jackson [1971] 3 WLR 46
Barrett v Ministry of Defence [1995] 1 WLR 1217
 
Pitts v Hunt [1990] 3 All ER 344   Case summary
 
Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360  Case summary

Courts are reluctant to make a finding of ex turpi causa preferring the defence of contributory
negligence:

Revill v Newberry [1996] 2 WLR 239   Case summary

 Occupiers Liability

Revill v Newbery [1996] 2 WLR 239   Case summary

 
Titchener v British Railways Board [1983] 1 WLR 1427 

Wheat v E Lacon & Co Ltd [1966] AC 552

British Railways Board v Herrington  [1972] AC 877

Lowery v Walker [1911] AC 10

Cotton v Derbyshire Dales District Council [1994] EWCA Civ 17

Darby v National Trust (2001) 3 LGLR 2

 
Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231

Ferguson v Welsh [1987] 1 WLR 1553

Gwilliam v West Hertfordshire Hospitals NHS Trust [2003] QB 443

Harris v Birkenhead Corp [1976] 1 WLR 279

Jolley v Sutton [2000] 1 WLR 1082

Ratcliff v McConnell [1997] EWCA Civ 2679

  
Roles v Nathan [1963] 1 WLR 1117

White v St Albans City and District Council [1990] EWCA Civ 18

Staples v West Dorset District Council [1995] PIQR 439

 
Allurement principle:

Taylor v Glasgow City Council [1922] 1 AC 44

White v Blackmore [1972] 3 WLR 296

Remedies
  
 
Damages

British Transport Commission v Gourley [1956] AC 185

Cookson v Knowles [1979] AC 5
Corbett v Barking, Havering and Brentwood Health Authority [1991] 2 QB 408

Darbishire v Warran  [1963] 1 WLR 1067

Donnelly v Joyce [1974] QB 454

H West & Son Ltd v Shephard [1963] 2 WLR 1359

Hardwick v Hudson [1999] 1 WLR 1770

 
Hay & Anor v Hughes [1975] QB 790

Hayden v Hayden [1992] 1 WLR 986

Heil v Rankin [2000] 2 WLR 1173

Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65

Hodgson v Trapp [1989] AC 807

Housecroft v Burnett [1986] 1 All ER 332

Hunt v Severs [1994] 2 AC 350

Jefford v Gee [1970] 2 WLR 702

Lagden v O'Connor [2003] 3 WLR 1571

Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174

Parry v Cleaver [1970] AC 1

Pickett v British Rail Engineering [1980] AC 136 

Spittle v Bunney [1988] 1 WLR 847

West v Shephard [1963] 2 WLR 1359

Wise v Kaye [1962] 1 QB 638

 
Exemplary damages

Rookes v Barnard [1964] AC 1129

Kuddus v Chief Constable of Leicestershire [2001] 2 WLR 1789

John v MGN Ltd [1997] QB 58
Cassell & Co Ltd v Broome [1972] 2 WLR 645

Injunctions

Kennaway v Thompson [1981] QB 88

Prince Albert v Strange  (1849) 2 De Gex & Sim 652

Further reading

Law Commission Report - Damages for personal injury 1999

Law Commission Report - Damages for personal injury - non pecunary losses 1999

Law Commission Report - Aggravated, exemplary and restitutionary damages 1997