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Pure Psychiatric Injury

Tort (University of Manchester)

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Pure Psychiatric Injury – Duty IV

Law Reform Considera0on

o Both the English and Sco1sh commissions recommended a statutory reform but both remain
unenacted as the department of cons9tu9onal a:airs stated that it rejected the English laws
commission as it believes the government considers it preferable to allow the courts to con9nue to
develop the law in this area.
o Both Sco1sh and English a?empts to clarify the law have fallen upon deaf ears and its unlikely to
change.
o Some judges believe that parliament should get involved to legislate, men9oned in Walters v North
Glamorgan NHS trust where COA remarked that “parliament must do it” also repeated this no9on in
White v CC of South Yorkshire Police
Pure Psychiatric Injury
o occurs where that personal injury is su:ered as a result of D’s negligence, where PI negligently
inPicted and consequen9al much easier for C to recover damages by way of compensa9on as the
cause of ac9on is complete upon proof of the immediate physical damage
o Johnson v Le Roux Fourie  business women wanted minor surgery to her nose and surgeon
proposed a more radical surgery, leW her with serious damages to her nerves and eyes, su:ered
depression - it was held the psychiatric consequences of c’s physical injuries taken into account and
was awarded 80,000
o Farell v Merton  C gave birth to son but due to D negligence child born with irreversible brain
damage and su:ered cerebral palsy, wasn’t told about his serious injuries and was just informed he
had a hard 9me with C-sec9on – recovered £75,000
Property damage
o Where C’s cherished property is damaged/destroyed and from which C su:ers mental injury as a
result of witnessing it when doesn’t appear to be treated as consequen9al mental injury but takes up
the principle of PSI

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o Page v Smith  physical injury was foreseen to C but psychiatric injury occurred whilst unforeseeable
was compensable
o Wagon Mound principle  applies, C who su:er PI must show that the injury was reasonably
foreseeable.
RECOGNISED PSYCHIATRIC INJURY | THRESHOLD PRINCIPLE
o D can’t be liable to C for negligently inPicted PSI unless C su:ered recognisable psychiatric injury
1. Legal policy reason – the most judicially cited and accepted one
2. Remoteness of damage -
3. De minimis damage – Lord Bingham in Watkins v Home secretary said distress/anxiety don’t
meet the de minimis threshold of damage
o Policy  Mcloughlin v Brian – C husband and children le1 home and injured in crash, one of children
died and she su6ered depression and a personality change, she was compensable for her recognized PI
o Lord Wilberforce recognised how wide shock can be interpreted and argued the law needs to be
reformed in placing some limita9on on the extent of claims being made under this issue
- Mental injury easier to fake/exaggerate
- ConPic9ng witnesses/expert evidence etc.
o Damages too remote  was it foreseeable to su:er mentally as a result?
DIAGNOSTIC CLASSIFICAITON
o COA in Sutherland v Ha?on said there was a classieca9on of mental disorders by referencing to.
1. American diagnos9c and sta9s9cal manual of mental disorder DSM-V – preferred one as it has
wider range of symptoms and used more due to its development
2. Interna9onal sta9s9cal classieca9on of mental and behavioural disorders ICD-10
o 1. Never intended to be used for legal reasons, 2. con9nuing uncertainty as to whether
classieca9ons are reference point for recognising psychiatric illness at law 3. Whether judges
should decide whether the criteria in the classieca9on is sa9seed or whether deference to
psychiatrist experts is always required, uncertain. 4. Court relying on the classieca9on can
prove problema9c as new changes haven’t been incorporated.
o Reilly v Merseyside HA  Hospital visitor trapped in liW su:ered anxiety disorder, no
recognisable PI as but normal emo9ons of panic – not suhcient to cons9tute phsycial
damage/or PI

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THE TYPE OF CLAIMANT

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o C involved in car accident due to D negligent driving – Page v Smith

o C involved in workplace accident accident/incident due to employer’s D negligence – Donachie v CC of
GMP
o C vic9m of medical misdiagnosis or mistreatment by D – RK v Oldham NHS trust
o C vicinity of a violent person/violent act because of D’s negligence – A v Essex
o Guilt-ridden primary vic9ms – endorsed as a primary vic9m in English law
o Employees who are involved in mishaps/accidents with fellow employees in the workplace – Hunter v
Bri9sh Coal Corp (C su6ered from depression stemming from his belief that he brought the death of a
work colleague who was killed by an exploding water hydrant – exploded and C was 30 metres away
never saw the body of the colleague deceased – held C claim failed, wasn’t in zone of physical danger
himself)
o where rescuers were in the zone of danger, can be classieed as primary vic9ms in modern law post
White/Frost – Chadwick v Bri9sh Transport Comm
- where rescuer C assists vic9m D who self-inPicted his injuries due to his own negligent/deliberate
act and C su:ers a psychiatric injury in e:ec9ng that rescue, D doesn’t owe C a duty of care to
avoid that psychiatric injury for policy reasons
o Greatorex v Greatorex – car accident due to drinking, trapped in car with injuries, ere ohcer was
father of driver, nowhere near incident just accident his a?endance – C su:ered PTSD and it was held
he couldn’t recover damage’s as a primary vic9m as he was never in any physical danger, nor in fear of
any danger from car accident.
o Fear of the future vic9ms – exposed to a disease-causing agent, worry about contrac9ng disease in the
future aren’t primary vic9ms under Page v Smith category notwithstanding that the very fact that C
has been exposed to that dangerous agent has put C in the ‘zone of danger’
o Leading case sets the principle – Creutzfeldt-Jacob v UKMRC (young children showed signs of student
growth as part of a clinical trial and the type of hormone injected was capable of infecFng the
injectees with jakob disease leaving them with unimaginable su6ering and certain death – there risk
caused them to develop psychiatric injuries, it was held they are not primary vicFms)
SECONDARY VICTIMS
o 2nd vic9m is a spectator/bystander to the death/injury of an immediate vic9m which was caused by
D’s negligence and who su:ers psychiatric injury as a result - Alcok v CC of south Yorkshire

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o Wild v Southend Univ Hospital NHS = mother is to be considered the immediate vicFm to whom the
father is a potenFal 2nd vicFm
o Property damage – C can’t be regarded as 2nd vic9m to that property but may recover for psychiatric
injury as a residuary C
- A1a v Bri9sh Gas – held that C claim to witnessing her house burn in front of her house was
permi?ed, D owed a duty of care to avoid her seeing the destruc9on
- Bingham LJ, e.g. of a scholar life work or research destroyed before his eyes as a result of D
careless conduct

DUTY OF CARE REQUIREMENTS

o Reasonable foreseeability
o For the ‘guilt-ridden’ primary vic9m, however, the Wagon Mound principle applies, i.e.,
C’s psychiatric injury must have been reasonably foreseeable.
o For the guilt-ridden primary vic9m, C must prove foreseeability of psychiatric injury, in order
to recover for precisely that type of injury, thus complying with the Wagon Mound principle
(per Lord Slynn in W v Essex CC, who considered the parents’ psychiatric injury as a result
of bringing their children and boy G under the one roof was reasonably foreseeable – it was

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certainly not foreseeable that the parents would su:er any physical injury, i.e., sexual
assault, from G, but the key point was that the type of injury for which the parents were
claiming had to be foreseeable, viz, psychiatric injury).
o If D has placed C in a zone of physical danger via his acts or omissions, then proximity will
temporally be established by the par9es’ physical and temporal closeness. However, C must
have been, in fact, exposed to a risk of physical injury, or reasonably believed that he was so
exposed. Where C temporally and physically proximate to horrifying events
o REQUIREMENT OF SHOCK  Unse?led as to whether the psychiatric injury incurred by the
primary vic9m must have been induced by a shock in the legal sense – lord Keith called it a
sudden assault on the nervous system
SECONDARY VICTIM CLAIMANTS | DUTY OF CARE REQUIREMENTS
o 2nd vic9m must prove that this psychiatric injury was a reasonably foreseeable consequence
D’s acts/omissions
o rela9onship proximity: close 9e of love and a:ec9on  2nd vic9m C must prove that he
shared a close 9e of love and a:ec9on with the immediate vic9m of D’s negligent act or
omission | close 9es may be rebu?ably presumed in some types of rela9onship between C
and immediate vic9m but in other cases the 9e must be established by evidence
o some9mes a close 9e cant be established at all
1. long standing workmates and friends weren’t close enough in Gregg v Ashbrae Ltd
2. cousins employed as army ohcers in a warzone weren’t close enough in Bici v MOD
3. strangers involved in a car accident will always fail the criterion in Fagan v Goodman

SPATIAL AND TEMPORAL PROXIMITY

o 2nd vic9m C must have been present at the accident involving the immediate vic9m or at the
immediate aWermath of the accident – immediate aWermath is approx. 2 hours only
o C must be physically and temporally proximate to either D’s act/omission which gave rise to
the accident or to the immediate aWermath. It’s not suhcient if C is proximate only to the
immediate vic9m’s death where that death occurred some9me aWer D’s act/omission and
injury to the immediate vic9m and outside the immediate aWermath of the accident.
o Taylor v Novo  injured in a work accident, employer admi?ed breach, su:ered serious
injuries to the head/leW food and seemed to be making a good recovery un9l 21 days she
su:ered thrombosis and died at home – daughter witnessed death but not accident
- it was held she wasn’t suhciently proximate because she wasn’t present at the scene of
the accident, nor involved in its immediate aWermath. Witnessing the death 21 days later
wasn’t suhcient to sa9sfy the criteria

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o Direct percep9on  2nd vic9m, C psychiatric injury must have been caused by direct
percep9on of the accident or of its immediate aWermath with C’s own eyes/ears and not by
hearing about it from a 3rd party
NORMAL FORTITUDE
o D isn’t liable for a psychiatric injury that a 2nd vic9m has su:ered only because C is
abnormally suscep9ble/vulnerable to such injury. D is only liable to C if a person of ordinary
for9tude would foreseeably have su:ered some psychiatric injury – once that is proven then
C can recover for the full extent of his psychiatric injury

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ELEVATED PRIMARY VICTIM CLAIMANTS

o Whether D owes an elevated primary vic9m – C – a duty of care
o Dealt with in AB v Leeds  Facts previously, parents of the babies whose organs harvested
and retained aWer a post-mortem were treated by Gage J as primary vic9ms but 2/3
claimants failed to prove that it was either foreseen or reasonably foreseeable that they
would su:er psychiatric injury when they discovered that their dead children organs had
been retained.
o Proximity  Usual proximity factors geographic, temporal and rela9onal have to be assumed
o Normal for9tude rule  elevated primary vic9m C can recover for his psychiatric injury even
if it was sustained because C lacked mental for9tude of a normal person
FEAR OF THE FUTURE CLAIAMNTS
o remember they aren’t primary vic9ms but have been permi?ed to recover for psychiatric
injury under the caparo test
o for these claimant’s – psychiatric injury must have been reasonably foreseeable – C must
prove that a person of normal for9tude wold foreseeably su:er from some psychiatric injury
in which event C can recover for the full extent of his injury
o Proximity – given temporal proximity between C psychiatric injury and D’s act/omissions may
be absent – legal proximity will be usually dependant on whether D assumed a legal
responsibility toward C to avoid his psychiatric injury
RESIDUARY CLAIMANTS
o In limited circumstances C can recover damages for negligently-inPicted psychiatric injury
without establishing primary/2 nd vic9m status at all
o C permi?ed to recover as a residuary C
o Men9oned in AB v Leeds Teaching Hosp NHS that those claimant for pure psychiatric injury
must be placed in either primary/2nd vic9m categories

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