2.

Duty of care 1: psychiatric illness

Essential reading
L&O 337-378
Handford, “Psychiatric Injury in Breach of a Relationship” (2007) 27 Legal Studies 26
– on Westlaw

Notes from Steele

1.1 The nature of psychiatric damage

If a relevant form of psychiatric damage is caused by the defendant’s neg, the crucial
question is whether the def owed a duty to the claimant in respect of that damage.
Distinction must be made between recognised psychiatric conditions and a normal
emotional distress of one sort or aonther.

Can we make a distinction between physical and psychiatric harm? Arguably not. Per
Lord Wilberforce in McLoughlin v O’Brian .
Difficulty of distinguishing bw psychiatric and physical harm long been recognised,
not always given the significance it deserves. Difficulty of this distinction in Page v
Smith –about ME – genuinely difficult to categorise as physical or psychiatric.

1.2 CONTROL DEVICES

Shock

The first control device is the requirement that the injury should have been caused by
shock. Where the event that brings about the psychiatric harm is death, injury or
endangerment of another, a claimant will be owed a duty in respect of psychiatric
harm, only if the harm results from a sudden shocking event.

Is shock required in other cases? Possible that it is in cases where the claimant fears
for his her own safety dulieu v white, page v smith - but this not reason given for
rejecting a claim based on page v smith in rothwell v chemical and insulating co ld.
Is the shock requirement entirely respectable- clearly not required where the claimant
suffers psychiatric harm through being over worked.
But
Requirement continues Jaensch v Colley – emphasises that mere knowledge of
distressing fact not enough, need perception of distressing phenomenon by plaintiff

Main purpose of ‘shock’ requirement is to avoid claims by individuals who are

considered too remote from the initial incident – aims to avoid opening liability
floodgate.

Reasonable Fortitude and Specific Forseeability

In any case of negligence, forseeability of ham is essential to establishing that a duty

of care is owed, and that the harm is not too remote from the breach. In cases of
psychiatric harm to a secondary victim, the following distinctive question applies:
Would it be foreseeable that a person of ‘ordinary fortitude’ might suffer psychiatric
injury, in the circumstances as they occurred?

3 departures from the normal approach to foreseeability

a) exception to the egg shell skull rule. In secondary victim cases involving
psychiatric damage, it must be foreseeable that a person of ordinary fortitude
 would suffer psychiatric harm in the circumstances. If a secondary victim has
a particular susceptibility to psychiatric harm (an egg shell personality) he or
she may not be owned a duty

b) psychiatric injury must be foreseeable ‘the test for liability for shock is
foreseeablility of injury by shock’ Denning in king v Phillips

c) In secondary cases, foreseeability of harm is judged with hindsight, on the

basis of the events as they actually occurred. The normal approach is to
judge forseeability at the time of the negligent act or omission.

This special kind of forseeablility- specific foreseeability

In McLoughlin v Jones Brooke LJ sees this as a separate control device from

reasonable fortitude. In the case itself- didn’t apply because there was a pre-
existing contractual relationship between d and c, they were solicitor and
client.

Home Office v Robert Butchart – Defendant argued that the claim for
psychiatric injury caused by witnessing the suicide of a fellow prisoner. As
such, the control devices for secondary victims should apply. CoA accepted
that his claim was for breach of duty owed to him as a vulnerable prisoner, to
take reasonable care to safeguard him from harm. McLoughlin v Jones
applied- since the claimant was known to be ‘vulnerable’ a specific
forseeability criterion not an obstacle to his claim. BUT the claim was
categorised as one by a primary victim and this avoided the additional criteria
laid down in alcock regarding the relationship bw claimant and injured person.

Not clear whether the ‘specific forseeability’ control device is to apply to all
psychiatric damage cases apart from cases like page v smith- Rothwell seemed to
suggest this.
It remains possible that the ‘specific foreseeability control device is of application to
all psychiatric damage cases apart from instances like page v smith but in the maj of
primary victim cases it has not been an issue- because many of these cases turn on
the foreseeability of psychiatric harm to the particular claim ant in the particular
circumstances.

In future perhaps the landmark cases of Alcock and Page v Smith will come to
represent isolated special cases where all control devices, and no control devices
respectively aply. The rest of the field would be governed by specific foreseeability as
a general control device.

The Alcock Criteria

Further control devices have been applied in secondary victim cases, introducing
particular requirements described in terms of ‘proximity’- turn on the nature of the
relationship with the endangered party and the shocking event. See White v Chief
Constable of South Yorkshire.

‘PRIMARY VICTIM’ CASES

Primary victim cases where the claimant is physically injured or endangered

Dulieu v White
P was pregnant, behind the bar of a pub- horse-drawn van was negligently driven
into the building. There was no physical contact w P but CoA accepted that as a
consequence of the shock, she became seriously ill and gave birth prematurely. Held
that injury could be compensated. Kennedy J drew a limiting line- the shock, where it
operates through the mind, must be a shock which arises from a reasonable fear of
immediate personal injury to oneself. A has no legal duty to shock B’s nerves by the
exhibition of negligence towards C etc…

Page v Smith
Moderate impact road accident- plaintiff mildly physically injured but no immediate
physical harm. After the accident – he suffered the exacerbation of a previously
existing condition ME. Brought about by psychiatric route. HoL held that the plaintiff
could in principle recover damages, subject to further consideration by the court of
factual causation (was the worsened condition truly caused by the accident)

Important point here is majority approach to assess the forseeability of personal

injury (physical and psychiatric) from the point of view of the defendant at the time of
negligence. Forseeability in the practical sense rather than specific
foreseeability. FIPS is what is normally applied in tort of negligence, but not in
secondary victim cases. FIPS does not require that the means by which damage
actually came about should be foreseeable.

Important for Page v Smith because impact of vehicles not v forceful, only in respect
of a person with a pre-existing disposition to illness could it be foreseeable that this
particular impact could lead to psychiatric harm. So the SF test for secondary victims
would fail.

SF test practical where plaintiff is a secondary victim bc- if you do not know the
outcome of the event, it is impossible to say whether the def should have foreseen
injury by shock – therefore necessary to take into account what happned in order to
apply the test of reasonable foreseeability at all..

SF test makes no sense for primary victim- liability for physical injury depends on
what was reasonably foreseeable by the def before the event. It could not be right
that a neg def should escape liability for psychiatric injury just because, though
serious physical injury was foreseeable, it did not in fact transpire.
Lord Lloyd said foreseeability of psychiatric injury not essential in such a case,
provided some personal injury was foreseeable.

So basically PAGE v SMITH est that primary victim cases are logically different from
secondary victim cases. In PVC’s, personal injury is foreseeable and a duty of care is
established, the ‘kind’ of personal injury is irrelevant.
In SVC’s, there is no likelihood of physical impact involving the claimant, thus the
only way that damage can foreseeably be done is through the psychiatric route, and
foreseeability of injury by this route must be established.

Another criticism of page v smith- restrictive approach to the definition of a primary

victim – it is suggested that lord Lloyd didn’t intend to limit the category of primary
victims to those who are endangered. A party who is within the zone of physical
danger is a primary victim, he didn’t say that only such a party is a primary victim.

Rothwell v Chemical and Insulating Co Ltd

Claimants had all developed ‘pleural plaques’ as a result of occupational exposure to

asbestos dust, but these plaques were not considered by HoLs to amount to ‘material
physical injury’. Anxiety caused by fear of future disease was also not recoverable
damage.
One of the claimants not only had suffered anxiety, but also had developed an
anxiety neurosis – this would be capable of giving rise to liability if it could be
established that a duty was owed. HoL decided a DUTY OF CARE WAS NOT
OWED.

Lord Hoffman ‘The right to protection against psychiatric illness is limited and does
not extend to an illness which would be suffered only by an unusually vulnerable
person because of apprehension that he may suffer a tortuous injury. Risk of disease
is not actionable and neither is a psychiatric illness caused by contemplation of that
risk’

Page v Smith- no application to a case of fear of future injury.

But- does ‘unusually vulnerable person’ sound like a control device in what would be
a primary victim case…? Simply bc it is a case of psychiatric harm…

Distinguished page and smith because:

- foreseeable event was that the claimant would contract an asbestos related
disease. If that event occurred, it could no doubt cause psychiatric as well as
physical injury- but the event has not occurred. It would be an unwarranted
extension of PvS to apply it to psychiatric illness cause by apprehension of
the possibility of an unfavourable event.
Nb- could the ‘event’ be initial exposure to asbestos??

Important implication of judgements of HoL in Rothwell is that there is a control

device applicable to psychiatric injury cases which do not fall within PcS, namely the
form of required foreseeability. Restriction incorporates presumption of reasonable
fortitude.
Because there has been no suggestion that this was a secondary victim case, it
would appear that at least this control device applies to primary victims who are not
covered by Page v Smith.
Also possible that the SF test would be applied here- departure from PvS??

Stress at Work Cases

Claimant is not ‘secondary’ victim but could be described as the primary beneficiary
of the distinct duty to avoid psychiatric harm. The possibility of a negligence action in
such cases was recognised only relatively recently…
Since walker, shape of tort liability for psychiatric harm altered, previous focus on
secondary victim shifted.

Walker v Northumberland County Council

P employed by D as an area social services officer. In 1986 he suffered a nervous
breakdown- 3 months away from work. Before his return, P’s superior agreed that
assistance would be available to lessen the burden of his work. In the event, he had
very limited assistance. 6 months later, he suffered a second nervous breakdown.
Held: an employer owed a duty to take reasonable steps to avoid exposing an
employee to a health-endangering workload. Duty hadn’t been breached at time of 1st
breakdown since it was unforeseeable in light of info given to employer, but HAD
been breached at time of second breakdown.

Issues of foreseeability and causation likely to arise in this area.

Hatton v Sutherland
Court of appeal accepted that a duty of care was owed in respect of psychiatric harm
caused by stress at work, set out guidance on the issues relating to breach of the
duty. House of Lords unanimously approved the guidelines set out in Hatton in
Barber v Somerset CC.

Hale LJ
1) There are no special control mechanisms- ordinary principles of employer’s
liability apply
2) Q is whether this kind of harm to this particular employee was reasonably
foreseeable a) an injury to HEALTH which is b) attributable to stress AT
WORK.
3) Foreseeability depends on what the employer knows or ought reasonably to
know about the employee. An employer is usually entitled to assume that the
employee can withstand the normal pressures of the job unless he knows of
some particular vulnerability.
4) Test is the same whatever the employment
Many more guidelines- seem to make sense, must take reasonable steps, read
through them again…
Harm will normally be ‘truly indivisible’

Since Walker, claims for employment-related psychiatric illness hve become

common.
Daw v Intel Corporation- emphasised by CoA that providing a counselling service is
not necessarily a route to avoiding liability.

Beyond employment cases; assumptions of responsibility and contractual

relationships.

There are other cases where the claimant will be regarded as a primary victim in the
absence of physical danger, beyond the employment cases

Leach v Chief Constable of Gloucestershire Constabulary

Police asked the plaintiff, a volunteer on a youth homeless project, to act as
‘appropriate adult’ during interviews of a suspect, West. West turned out to be a
serial killer and details of his murders particularly harrowing… P not warned of
circumstances of the case, was offered no counselling until after West committed
suicide in prison and was told falsely that she would not be required to gie evidence
in court. P brought an action for PTSD, psychological injury and a stroke. Court of
Appeal allowed her appeal in part, no duty should be recognized which would
interfere w conduct of police interviews, but duty to provide counselling and in
respect of false assurances…

There is a wide range of cases in which there is recognised to bea duty not to cause
psychiatric damage to the claimant, contradicting any general perception that such
damage by it’s nature constitutes a ‘problem’.

Attia v British Gas

Property damage- claim for psychiatric damage caused by witnessing a fire in the
claimants home- claim allowed. CoA thought psychiatric illness might be considered
foreseeable in light of all the circumstances, unlikely that psychiatric illness will be a
foreseeable consequence of property damage, particularly if the ‘reasonable
fortitude’ test is also applied, perhaps a destructive fire in one’s house is particularly
exceptional…
1.4 SECONDARY VICTIMS

A secondary victim is one whose psychiatric injury flowed from the injury to, or death
or endangerment of, another party.
Used to only be able to claim if P herself is injured or endangered, otherwise no duty
in respect of psychiatric harm. Law then changed accepted that some of those who
were not endangered could recover for psychiatric harm, but only if their injury is the
effect of ‘shock’ suffered in a relevant way.

Hambrook v Stokes – mother saw lorry careering round bend where she knew her 3
children to be- collision out of sight, mother feared her children were involved. In
these circumstances, the mother was owed a duty so far as she suffered psychiatric
injury as a consequence of what she saw and perceived directly, fear for her children
rather than fear for herself would suffice.

McLoughlin v O’Brian
P’s husband and 3 of her children involved in a serious road accident caused by neg
of 1st def. P informed of accident 2 hours later and was driven to hospital, there she
learned her youngest daughter had been killed. Chaotic and harrowing scenes as
she saw her husband and other children who were still being treated. She alleged
that she suffered severe shock resulting in psychiatric illness inc depression and
personality change.
Court of appeal ruled that her injury was foreseeable but that even so, no duty was
owed to a plaintiff who was not present at the scene of the accident and had not seen
the consequences til 2 hours later
HOUSE OF LORDS ALLOWED P’s APPEAL.
Judgement raises the q as to whether a duty of care may be denied on policy
grounds, in cases where the injury is reasonably foreseeable. Agreement that
compensation of secondary victims without the addition of control devices may lead
to over-extensive liability…

Judgement- moves line of recovery only slightly- incorporating an extended

understanding of ‘immediate aftermath’

For a claimant who has no physical involvement in an accident to recover damages

for psychiatric injury, it is clear that they must show closeness of more than one
form: closeness to the victim in terms of relationship and physical closeness in time
and form. Also important is the ‘means by which the shock is caused’- needs to be
equivalent to direct and unaided perception of the event.

Distinction in approach bw lord Wilberforce and Lord Bridge. Wilb- closeness

requirements and directness of perception clearly set by existing authorities. Bridge-
appears to suggest that the relevant q’s are all q’s of foreseeability, and argues that
limiting rules should be supported by reasoned justifications.

Alcock v Chief Constable of South Yorkshire

Case arose from disaster at Hillsborough Football Stadium. Alcock claims were
brought by relatives of some of the supporters who were killed, injured or
endangered though admitted negligence in the policing of the crowd. CASE
REMAINS THE LEADING AUTHORITY ON THE CRITERIA OF RECOVERY FOR
SECONDARY VICTIMS.

Plaintifss claiming for nervous shock resulting in psychiatric illness which they
alleged was caused by the experiences inflicted on them by the disaster- all relatives
etc of someone injured.
Compared to mcloughlin- immediate aftermath- not liable here in the identification
cases, identification took place 8 hours after the event- not immediate aftermath.
Simultaneous broadcast of the disaster not to be equated with ‘sight or hearing of the
event or its immediate aftermath’ because broadcasters code of ethics meant that
there were no pictures of suffering by recognisable individuals.
All appeals were dismissed

The Alcock Criteria Summarised

1) Category of relationship. The plaintiff must be in a close and loving
relationship with the primary victim. In certain cases (spouse, parent, child)
the law will presume such a relationship although it can be rebutted by the
defendant. In other cases, no ties are presumed and therefore the plaintiff
must prove that they existed- applies to siblings
2) Physical Proximity. The plaintiff must be close to the action in time and space.
Although the ‘immediate aftermath’ will suffice, identification of the body some
8 hours later was not close enough in this case.
3) Immediate Perception and Shock. The injury must have been caused by a
shocking event. Broadcast on tv didn’t give rise to the sort of shock that would
be equivalent to witnessing an event. Open whether broadcasts could ever be
equivalent to direct perception.
Left open whether there might be circumstances so horrific that even a bystander
without close relationship to the primary victims might be able to recover…?

Reasoning behind alcock—Ackner sought sound reasons of principle – explains the

need for a close and loving relationship in terms of forseeability. If there is a close
and loving relationship, then the def ought to forsee that psychiatric harm to p is likely
to follow… long way from ‘Practical’ form of foreseeability.

Lord Oliver on the other hand appealed not to foreseeability but to ‘proximity’.
Although he thought that proximity did not operate as a precise test, he suggested
that it captured the real issues of policy that arose – where, in other words, to draw
the line.

BYSTANDERS
Challenge for the ‘foreseeability’ approach, even the restrictive form of foreseeability
would allow that in an extreme case, a mere bystander may be able to recover.
Would the courts recognise a duty to bystanders- or are the control devices
supposed to avoid claims by remote parties…?

McFarlane v EE Caledonia – couldn’t reconcile the existence of control devices with

the possibility that a mere bystander may exceptionally be owed a duty on the
grounds of specific foreseeability... refused to recognise a duty of care towards a
mere bystander.

J. Stapleton really not happy with state of law in alcock- particularly requirement for
‘close ties of love and affection’ should a brother have to prove this??

Employees and Rescuers Who Witness Injury to Others: Primary or Secondary

Victims?

White v Chief Constable of South Yorkshire Police

Arose from Hillsborough stadium disaster, a number of police officers brought claims
for psychiatric injury suffered as a result of their involvement in the event and its
aftermath. Liability was admitted in respect of those officers who were most actively
involved in the immediate area of the ground where the deaths and injuries occurred.
5 plaintiffs – representative of the roles played by the other plaintiffs, four were on
duty in the stadium, the fifth was responsible for stripping bodies and filling out
casualty forms at the hospital. House of lords eventually ruled for the defendant

1. The employers duty to employees did not extend to avoiding psychiatric harm
where the employee would (without the contract of employment) be a
secondary victim. Alcock criteria applied. – unable to show close ties of love
and affection

2. That a rescuer who had not been exposed to the risk of physical injury was
not a ‘primary victim’ and also had to satisfy the Alcock criteria.

Rescuers should be in range of foreseeable physical injury- as occurred in Chadwick

v British Railways Board.

White- judges wanted to stop incremental development- area already messy, not
refined analytical tols which will enable the courts to draw lines by way of
compromise solution in a way that is coherent and morally defensible. Reason in
Rothwell for restricting the ambit of Page v Smith.

Rescuers after White

Hoffman- majority in white merely declined to extend the boundaries of liability to
rescuers who were not themselves primary victims because they were not physically
endangered. Was Page v Smith trying to define primary victims… not really… why
the control mechanism?

Unwilling participants other than rescuers

‘participants’ could be for example those who reasonably believe that they are
responsible for death or serious injury to others.
Alcock treated such participants as primary victims- based on cases such as Dooley
v Cammell Laird & Co (crane operator whose crane dues to a fault, dropped its load
towards fellow workers owed a duty of care in respect of psychiatric damage)

Restrictive approach to rescuers and ‘unwilling participants’ is reinforced in:

Monk v Harrington
Claimant witnessed the aftermath of an accident at work during the construction of
the new Wembley stadium in which a platform fell 60ft, killing a worker below and
injuring another. Claimant was foreman and went to the rescue- held not to be a
primary victim bc even though he was classified as a rescuer, he was not physically
endangered. Bc Claimant also played a role supervising the erection of the platforms
he argued that belief in his own responsibility played a part in causing his psychiatric
illness. Took the form of an excessive concern with safety etc, couldn’t return to
work…
Court rejected both parts of his claim. Unreasonable belief in his own responsibility
for which the defendants could not be possible.
Case makes it legitimate to wonder whether it is really appropriate to force claimants
whose mental harm is not denied to claim that they were fearful for their own safety,
rather than appalled by witnessing at close proximity fatal injuries to a fellow human
being.

Clear from the auths esp McLoughlin and Alcock that no duty will be owed to a
claimant whose psychiatric injury flows from bereavement and grief per se. Must be a
perception of a ‘shocking event’ – related to a felt need to limit the number of
potential claims. The fine lines that need to be drawn in order to satisfy the
requirement of a ‘shocking’ event in tragic circumstances are hard to defend. Ie
example Sion v Hampstead Health Authority – watching your son deteriorate for 14
days and eventually die not shocking enough…

North Glamorgan NHS Trust v Ceri Ann Walters – court of appeal has shown a
willingness to develop the law in respect of this criterion – held that a DoC was owed
in respect of psychiatric harm to a mother whose 10 month olf son suffered an
eplileptic seizure and died 36 hours later. 36 hours could constitute one shocking
event.

Conclusions
Where secondary victims are concerned, the law has imposed certain restrictions. It
has proved difficult to provide a proper justification which would allow courts to
distinguish bw successful and unsuccessful cases. Justifications have ranged from
foreseeability through floodgates to proximity.

Law commission has proposed new legislation on the area.

Liability for psychiatric Damage: Searching for a Path between Pragmatism
and Principle – Michael A Jones

English law has at least 4, and possibly more categories of victim whose entitlement
to compensation depends upon the precise context in which they happen to sustain
their psychiatric harm. Practical result is that law is both too restrictive and too
generous in the way it responds to claimants who have sustained psychiatric harm,
depending upon the category into which they happen to fall.

Thinks it’s sensible to treat psychiatric damage as a different type of damage – not
the same as physical injury. Although we should change the rules applied both to
cases of ‘pure’ psychiatric harm and cases in which psychiatric harm arises from
physical injury. Test for liability in both cases should be forseeability of psychiatric
damage.
Fault liability requires foreseeability of harm as a fundamental requirement of
attributing responsibility for that harm to a culpable defendant.

Recommendations –
1) ‘Thin skull rule’ should not apply to cases of ‘physical injury’ so as to create a
‘passport’ for the claimant to recover compensation for psychiatric harm.

2) Arbitrary rules applied to the recovery of pure psychiatric harm being replaced by a
foreseeability test. The foreseeability test should be based not on the foresight of
medical experts but on the foresight of the reasonable man or woman as guided by
medical evidence and interpreted by the court.

II – Categories of Claimant.

Claimants who suffer physical injury- resulting psychiatric harm

Claimants who sustain ‘pure’ psychiatric harm

Claims arising from participation Claims outside the ‘nervous

In or in observation of a single traumatic shock paradigm’
Event.

Primary Secondary
Victim Victim

Australian and Canadian courts more sensible- Canada test is ‘reasonable foresight
of nervous shock to the plaintiff’

A. Psychiatric Harm Following Physical Injury to the Claimant

Generally non-problematic. If a claimant suffers physical injury and subsequent

psychiatric harm, assuming that the breach of duty can be established, everything
turns on establishing the causal link between the negligence and the damage.
Eg if claimants physical injuries result in clinical depression, the defendant is liable
for the depression and the foreseeable consequences of the depression. (Pigney v
Pointer’s Transport Services – including victim’s suicide)
Category can be problematic in that ‘thin skull rule’ applies- effect is that subject to
proof of the causal connection, a claimant who suffers minor, even trivial, physical
harm, may recover for psychiatric harm that is totally unforeseeable.

B. Claims for Pure Psychiatric Harm in the Paradigm “Nervous Shock” Action
Involving Participation in or Observation of a Traumatic Event.

Problematic cases. Starting point was to reject claims altogether. Dulieu v White first
succeeded for psychiatric harm sustained as a result of being put in fear for her own
safety by the defs negligence. This was extended to ‘RICOCHET’ victims in
Hambrook v Stokes Bros- claimant recovered for psychiatric harm as a result of
being put in fear for her children’s safety by D’s neg.

House of Lords came close to adopting a test for the duty of care based simply on
foreseeability of psych harm in McLoughlin v Brian but in Alcock House of Lords
came down firmly in favour of some specific restrictions on claims by ricochet victims,
even when the damage was foreseeable.

Alcock- distinction bw primary and secondary victims that has created its own body of
litigation as claimants have sought to place themselves in the more favourable
‘primary’ victim category.

(i) Primary Victims

Includes someone who:
1) was actually exposed to the risk of physical injury, even though no physical injury
occurred. (eg Dulieu)
2) Reasonably believed himself or herself to be at risk of physical injury (McFarlane v
EE Caledonia –genuine but unreasonable belief not good enough)
3) who, as a result of Ds negligence, reasonably believed that he or she had been
the cause of injury to someone else.

For primary victims- foreseeability of damage was sufficient to est responsibility/ duty
of care.

Position complicated in Page v Smith – HoLs- held –that in the case of primary
victims, the test was whether the defendant could reasonably foresee that his or
her conduct would expose the claimant to the risk of personal injury, whether
physical or psychiatric.

If yes – it was irrelevant that physical injury did not occur or that the psychiatric injury
was unforeseeable because the claimant had an ‘eggshell personality’. The
defendant had to take the victim as found.
Page means that a primary victim is treated as if he had sustained a physical injury
and is then dealt with on the same basis as a claimant who suffers consequential
psychiatric harm, even if the psychiatric harm was entirely unforeseeable.
Page doesn’t even really fit with the medical understanding of the causes of
psychiatric harm – ie minor injury not really a cause…

White gave Page a twist- held that not only was exposure to the risk of foreseeable
physical injury a sufficient condition for a claimant to qualify as a ‘primary victim’ it
was also a necessary condition.
A claim for psychiatri damage based on the employment relationship bw policemen
and chief constable at Hillsborough disaster, given that the Chief Constable was
vicariously liable for the negligent decision to permit football fans outside the stadium
to crowd into a confined area. Overturned in HoL because it seemed unjust that the
police officers should succeed in their claims for psychiatric damage arising from
what they had witnessed when the claims of the relatives of the same dead and
injured victims had been rejected in Alcock,

The effect of White is that if the claimant foes not fall within the zone of physical
danger, either as someone who was actually exposed to the foreseeable risk of
physical injury, or who reasonably believed that he or she was exposed to such a
risk, he or she does not qualify as a primary victim.

ii) Secondary Victims

Secondary victim characterised in Alcock as a claimant who was simply a passive

and unwilling witness of injury caused to others. Have a number of hurdles to jump:

- Circumstances must be such that psychiatric injury was foreseeable in a

person of ‘customary phlegm’ (Bourhill v Young) (Rule doesn’t apply to
primary victims)
- There must be a relationship bw accident victim and claimant which involves
close ties of love and affection.
- Claimant must either be present at the secene of the accident or come upon
its immediate aftermath. This involves physical proximity, which must be
close, in both time and space.
- Psychiatric Injury must have been the product of what the claimant perceived
with his or her own unaided senses. Ie cant be told by others.
- The manner in which the psychiatric illness was caused must involve a
sudden assault on the nervous system- a sudden appreciation by sight or
sound of a horrifying event, which violently agitates the mind.

Rare that this list of qualifying criteria be fulfilled. Designed to exclude ordinary
bystander.

C. Claims for Pure Psychiatric Harm where the Claimant Falls Outside the
“Nervous Shock” Paradigm of Sudden Traumatic Events

Action where there was no physical injury to the claimant, and no ‘shocking event’
‘nervous shock’.
1) relative onset of psych condition. 2) relationship of some sort between the
claimant and defendant (not usually strangers)
Cases include: a) the liability of an employer for psychiatric harm in terms of
occupational stress Walker v Northumberland CC, Hatton v Sutherland.
b) the liability of a professional person for foreseeable psychiatric harm to the client
arising out of professional negligence Landau v Warner (psychiatrist)
c) The liability of a prison authority to a prisoner who is known to be at risk of
developing a psychiatric condition Butchart v Home Office
d) Mental harm due to distressing knowledge, such as anxiety at the prospect of
illness or disability caused by the def’s negligence or being informed by a medical
professional, wrongly, that one’s young child had died Allin v Hackney Health
Authority

In some of these cases the language of primary and secondary victims has arisen –
employees claiming in respect of occupational stress for example have been
described as primary victims- even though this label adds nothing… in fact confuses
what you need to prove- ie with employees- reasonable forseeability of psychiatric
damage test – not the test for primary victims, who don’t necessarily have to
demonstrate that the psychiatric harm was foreseeable.
III. Consequences of these Categorisations in Relation to Pure Psychiatric Damage

The most obvious consequence of the rules is their arbitrary effects as between
different claimant sustaining psychiatric harm, let alone as between those claimants
sustaining psychiatric harm and those suffering physical injury.

Effect of Page was to privelege certain categories of claimant who do not even have
to prove that their psychiatric harm was foreseeable. Ie all forms of personal injury
are the same ‘type’ of damage.

Yet, if all forms of personal injury are to be treated on the same basis, the position of
secondary victims, who are subject to highly restrictive rules, looks particularly
anomalous.

White causes problems because of the slightly arbitrary distinction bw primary –

continuing risk of physical injury- and secondary who was just a witness. Neither
physically injured, both psychiatric injurys- one will be compensated, one will get
nothing. Brother/witness probably will have more serious psychiatric injury than
rescue worker that doesn’t get physically injured but is just there.. weird distinction.

Categories of primary and secondary victim can break down under close scrutiny
- W v Essex County Council – HoL held that it was at least arguable that the
parents of children abused by a boy placed with them as a foster child by the
local authority might establish that they were primary victims on the bassi that
they had suffered psychiatric damage as a consequence of the feeling that
they were indirectly responsible for their children’s sexual abuse.

Abitrary effects of the categorisation for secondary victims

- requirement that loved one/claimant be proximate in time and space to the
event causing injury to loved one or to immediate aftermath. Fine distinctions
between relatives who took a while to get to the hospital etc. Should liability
depend on a race with the ambulance?
- Requirement of illness being the product of ‘sudden shock’ –what about
gradual onset of symptoms? Ie watching a child slowly die rather than
suddenly die. Capricious distinctions.
- Secondary victims can’t recover for being informed about the event – but in
some situations which do not fit the conventional ‘nervous shock’ paradigm a
primary victim can recover for what he or she is tod. This can produce a
situation in which a mother told about the death of her child who has been
killed by the negligence of the def cannot recover for her psych harm whereas
a mother negligently informed that her child has died, when it has not, can
recover Allin.

IV. Psychiatric Harm Following Physical Injury to the Claimant

Can also be arbitrary bc of the ‘thin skull rule’ and causation test

A. The thin skull rule

Basic principle is that D must take claimant as found, so D is responsible even if C’s
injury is more extensive due to a pre-existing condition that D didn’t know about.
Proffessor Fleming ‘Human bodies are too fragile and life too precarious to permit a
defendant nicely to calculate how much injury he might inflict.’
Countervailing policy judgement to be made which is linked to the whole basis of fault
liability. This is that fault liability looks to a defendant’s culpability as the reason for
concluding that the defendant ought to be held responsible and therefore ought to
pay for the claimants harm.
Culpability involves foresight of harm, and it is argued, the defendant’s foresight
should relate to the harm that the claimant has actually suffered, not merely foresight
of any damage that might have been caused by the defs conduct. No such thing as
‘liability in the air’ liability depends on the reasonable forseeability of the consequent
damage- inextricably linked to damage.
This conflicts/strikes a balance with ‘thin skull rule’

Page contrasts with alcock- page putting physical and psychiatric under the banner
of ‘personal injury’ whereas in alcock calls ‘nervous shock’ a ‘type of claim in a
category of its own’ ‘Shock is no longer a variant of physical injury but a separate
kind of damage.

In a system of fault based liability, should the defendant be saddled with the financial
consequences of the claimant’s unforeseeable psychiatric reastion. O condition was
almost entirely to do with the claimants unforeseeable psychiatric condition that was
almost entirely due to the claimant’s make up or constitution and virtually nothing to
do with the defendant’s negligence??

Although there are of course many occasions when granting compensation for
psychiatric harm following physical injury is entirely appropriate, the most common
probably being a claimant’s depression arising from a permanent disability. Problem
is when physical injury is followed by something that most ordinary individuals would
see as an entirely unforeseeable psychiatric condition.

V. The Medical Context

Law commission considered that the floodgates argument still justified some
restrictions on liability for psychiatric harm beyond a simple foreseeability test.
Psychiatry and psychiatric diagnoses can be surrounded by uncertainty, subject to
dispute even within psychiatry, stigmatising for the patient, and poorly understood by
the general public. They can also involve normative judgements.

Last quarter of 20th cent has seen a greater willingess by judiciary to engage with
psychiatry as a discipline. Law trying to reflect medical understanding – lawyers
relying heavily on classifications of psychiatrists, particularly those contained in
manuals.
Lawyer must be cautious about using psychiatric diagnoses, allow for inherent
uncertainty in the patient’s diagnosis and understand that the very categories of
psych disorders themselves can be quite fluid – not like physical conditions. Lawyers
like PTSD because it includes in its definition a causal relationship bw the claimant’s
psychiatric condition and a traumatic ‘stressor’- causation virtually built into the
diagnosis.

VII. How should Lawyers Respond to Claims involving Psychiatric Harm?

2 responses
1) Abolish liability altogether for psychiatric harm
2) Argue that the test for liability for psych harm should be foreseeability of
psychiatric injury.
Law commission didn’t want to abolish liability- seeks to widen the scope of recovery
by secondary victims by removing the need for them to be present at the scene of the
event or its aftermath and abolishing the requirement for a sudden shocking event-
these changes would bring UK law in line with AUS law.

Foreseeability of psychiatric injury the test for everyone? – too wide for claimants
who are secondary victims and too narrow where the claimant is a primary victim. But
is the principle underlying it correct???
Another objection to foreseeability is the uncertainty of its application.
Ie ‘one judge may credit him with more foresight than another’ – lord denning
But this is a problem is not unique to claims involving psychiatric damage, it is
inherent in all claims for negligence where reasonable foresight plays a role.

Much would depend on how a foreseeability test was applied in practice, Canada and
Aus seem to come to sensible conclusions… the question of what is foreseeable is
normally assessed ex post facto, on the basis of what a hypothetical reasonable
person would say it was proper to foresee. Judgement as to what should be done on
the basis of ‘informed judicial opinion’

The test would expand the range of claimants- by removing artificial barriers for
secondary victims and would reduce the range of claimants by requiring that primary
victims and claimants who sustain physical injury to demonstrate that psychiatric
harm was foreseeable in the circumstances. All claimants would be required to show
‘customary phlegm’ even where they had sustained physical injury, and thus
excluding from compensation the unforeseeable psychiatric reactions of claimants
who currently benefit from an extremely relaxed application of the thin skull rule.

Seminar outline
Tort of Negligence- things to show

Duty of care – legal question, courts will apply test.

Anns v Merton- reasonably foreseeable that a failure to take care will lead to harm
Caparo Industries v Dickman – reasonably foreseeability, also public policy reasons

Difficulties start when the C and D are in a relationship where the courts haven’t
recognised a duty before. Courts proceed incrementally- drawing analogies

Breach
Damage
Causation
Remoteness

Defences for negligence

Psychiatric Injury

If you break my leg – damages will include economic loss but also for non-financial
loss (ie for pain and suffering) (How much does pain cost?). Emotional and
psychiatric damage is treated differently. Liability is subject to rules which seem
arbitrary and unfair.
Why? Problems of evidence? Sometimes bad claimants fake injuries – can be same
for physical injury- not really a problem. MEDICAL KNOWLEDGE – psychiatrist’s
ideas have changed enormously in the last 200 years, lots of disagreement between
different psychiatrists about what counts as illness, appropriate treatments etc. ME is
an example…

McLoughlin v O’Brian [1983] AC 410 – whatever is unknown about the mind-body

relationship, it is now accepted by medical science that recognisable and sever
physical damage to the human body and system may be caused by the impact,
through the senses, of external events on the mind.

Recognised psychiatric illness – illustrations:

Normal reactions of grief etc are not to be seen as psychiatric injury- should they be
compensated anyway- can be just as bad. The courts will not say that there is a duty
of care unless psychiatrist recognises the damage as a legitimate illness.

Floodgates problem – courts afraid of recognising duty of care in situations, don’t

want to trigger too many claims. Psychiatric Illness has potential to open the
floodgates because of large number of potential claimants (ie bystanders, relatives),
not like physically hurting someone. Much easier to give people psychiatric trauma.
Although – doesn’t seem particularly fair for claimant who is refused a duty because
of floodgate arguments, pursuing the unjust result because of a fear of numerous
claims.
Once you let the moral idea into the law that it is wrong to harm due to your
carelessness if it is reasonably foreseeable and that you should pay compensation. If
you don’t apply this evenly amongst all classes of people/types of harm, going to be
some injustice. Pragmatic considerations cutting across moral considerations –
unsatisfactory, leads to arbitrariness.
But- do we want to live in a society where everyone sues everyone else all the
time…? Get on with your life……
Socially useful things will not get done because people will be scared that they’ll be
sued all the time.
So the pragmatic considerations ARE important.

Claimants will either be primary victims, secondary victims, or neither (in which case
they’ll get nothing). Matters a lot to claimant whether they are primary or secondary.
Aim for primary.

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 388

Bourhill v Young [1943] AC 92
Page v Smith [1996] 1 AC 155

Calvert v William Hill Credit Ltd [2008] EWHC 454 (Ch) at [122]-[135] – about a
‘gambling addiction’ pathological gambler… look at methodology of psychiatrists,
looks a bit dodgy…

Primary and secondary victims:

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 388
Relatives of Hillsborough victims
Victims categorised into primary and secondary.

Primary victims are those involved “mediately or immediately” in the accident. In

Alcock, if you were at the ground and involved in the crowd crush, primary victim, and
the reason WHY you got a psychiatric injury is because you were scared of being
killed etc in the crush.

Secondary victims are the rest (i.e. bystanders, witnesses). These are the main
appellants, friends and family of the victim who were watching ie at home, from a
safer part of the stand. Ie mother suffering psychiatric injury because her son has
been crushed to death in accident.

Page v Smith – different idea of primary and secondary victim. Primary victim if you
are at risk of physical injury as a result of the defendant’s actions. Claimant in Page
was at risk of suffering a physical injury, even though she didn’t actually get hurt.
Slightly different from Alcock – someone could be a participant in an accident without
being at risk of physical injury- what does participant mean??

Dulieu v White- Guy in charge of lorry, negligently lets it run down a hill, smashes into
a pub, barmaid suffers psychiatric injury as a result of the shock of the lorry smashing
into the wall. On the facts of Dulieu v White she was never actually at risk of physical
injury – she was safe from harm – doesn’t matter because of the circumstances of
the case – it was reasonable for her to think that she MIGHT suffer a physical injury.
Alcock- would say she was a participant in an accident. Doesn’t quite fit with Page.

Can you be a primary victim if you are actually in physical danger but you don’t know
that you are??
Young v Charles Church Scaffolding Ltd – Workman has long metal pole, walking
with his mate, loud bang, he falls to the ground dead, flames everywhere, pole had
come into contact with live cables overheard. Friend doesn’t know about the cables,
doesn’t know he was at risk, afterwards when he is told how lucky he is to be alive
etc, at that moment he suffers psychiatric injury- court of appeal – he was a primary
victim. Because he was in the danger zone. The thing about the Page v Smith
danger zone is that it is open to manipulation- court can include more people or
narrow it down depending

Lunney and Oliphant- jumbo jet flying over city- something’s wrong, plane could fall
at any minutes- who is in the danger zone? Everyone—or no one? Saying that you
come within the sphere of reasonably foreseeable danger isn’t such a clear line-
court can make it bigger/smaller depending on findings of fact.

3 Awkward cases
W v Essex County Council – teenage boy put into care, history of sexually abusing
other children. Social services place him in a foster home, parents have children of
their own, the fostered boy abuses their children, social services didn’t tell them
about his history. Parents suffer psychiatric injury- suffer guilt stress, feel responsible.
At no point were THEY at risk of physical harm themselves… makes it look like they
are secondary victims (but if they were wouldn’t get anything). House of Lords says
that the category of primary victims not closed and that these parents should be in it.
Result seems to be ‘right’ but screws up what we think primary victim means-
definitely not within Page/Alcock requirements. How does it fit with the rest of the
law?

Re Organ Retention Group Litigation [2005] QB 506, [1]-[4], [183]-[204] - parents of

deceased children whose organs were retained after post-mortem examination
treated as primary victims. Children who died in hospital, the hospital without telling
the parents of the children, keep organs that they have taken out of their bodies for
medical research. Parents really upset, sue the hospital for psychiatric injury because
hospital failed to get our consent and offer us counselling for this. They would not be
able to meet the requirements if claiming as secondary victims- can they be primary
victims? Justice Gage – they are primary victims because if they were secondary
victims- presuppose that the children were primary victims – but the children can’t be
primary victims, so the parents must be primary victims. Presupposing that they must
be one or the other. The third option is that they are neither…

If you are a primary victim, D will have a duty to you whenever it is reasonably
foreseeable for a class of person to whom you belong might suffer some kind of
personal injury if D is careless. Personal injury could be physical or psychiatric.
Page v Smith – car crash- Def says that it is not reasonably foreseeable that if they
fail to take care, the effect of the crash will be to trigger latent ME – ie no caparo
foreseeability. Don’t have to show psychiatric injury was foreseeable as long as
physical injury was foreseeable. Distinguishing primary and secondary on the basis
that primary victims are at risk of physical harm- you are owed a duty of care for
psychiatric harm if it can be shown that physical harm is a reasonably foreseeable
consequence of the Def’s carelessness. Either physical or psychiatric- is good
enough.

In Grieves – house of lords invited to overrule Page- don’t.

The facts are slightly different in Grieves and court declines to say that there was a
duty of care. Asbestos at work guy, potential to get a particular kind of cancer, he
didn’t actually have the cancer, he had plural plaques (growths that don’t hurt) and
they ‘don’t count’ as physical injury even though they aren’t good and are exclusively
caused by asbestos in lungs- ie the asbestos could cause cancer…
Thought that he was likely to get cancer and this made him depressed- sues his
employer, tries to use Page to say that it was a reasonably foreseeable consequence
of exposure to asbestos that he would suffer some physical or psychiatric injury.
House of Lords says you cant take advantage of rule in page because Page only
applies where the psychiatric injury is an immediate response to a past event that
could have caused physical injury. Must get injured then and there…

Claims by secondary victims governed by strict rules:

Alcock some of the claimants suffered psychiatric illness after their relatives died in
the crush, pathological grief syndrome.
In both Alcock and McLoughlin v O’Brien. Starting point must show that someone
else was injured, ie that there was a primary victim. Claim is that because of
something bad happening to someone ELSE, you suffered from a psychiatric injury.

Mcloughlin facts – the one about the wife that went to hospital a couple of hours after
the car accident. If what you are complaining about is psychiatric illness because
someone else has been harmed, you must show certain things. Proximity
requirements – of perception.. . same rule comes out in Alcock.

Proximity of relationship - close tie of love and affection

Proximity in time and space to the accident
Perception by own sight or hearing, not third party reports. You must show that by
means of your own unaided senses, you saw the harm that the primary victim
suffered.
Dearness, nearness and hearness.
Must be “shock” – ‘the sudden appreciation by sight or sound of a horrifying event,
which violently agitates the mind’
Requiring secondary victims to have a close tie of love and affection, makes sense
that members of family etc are likely to be upset about it. Reasonably foreseeable
thing…?
The other requirements are completely arbitrary, designed to keep a lid on recovery.
Does it make sense that you should be less entitled to claim because you were told
about an accident on the telephone rather than actually watch it happen? There are
cases in which the different requirements have been manipulated by the courts. Point
is that if you fall on the wrong side of the line that’s really just bad luck…

In white lord hoffman ‘In this area of the law the search for principle was called off in
Alcock, no one can pretend that the existing law is founded on principle’
‘incrementalism is not the right answer’ – ie blurring the lines to let claimants in etc.
Either you allow everyone to recover or nobody or you draw a completely arbitrary
line not pretending that it is ‘fair’. No whinging.
Issue in white- Also about Hillsborough stadium disaster- policemen who were there
on the day who suffer from PTSD… they couldn’t claim as primary victims because
they weren’t at risk themselves. Can they claim as secondary victims following
alcock? NO because there were no close ties of love and affection.
Should they still be allowed to recover?
Tried to use the employee/employer relationship – ie employer’s liability? House of
lords says NO. can’t get around the proximity requirements by saying that employers
fall into a different category?
Tried to use ‘rescuers’ argument- policy perspective, rescuers should be treated well,
be able to recover– rescuing is something we want to encourage…
Under French law there is a duty to rescue- we don’t have that in English law. Would
the existence of that duty make a difference in white? Is it fair to impose a positive
legal duty on someone and then not allow them to claim compensations for the bad
consequences?

Class of primary victims:

Zone of foreseeable physical danger

Rescuers now excluded: White v Chief Constable of the South Yorkshire Police
[1999] 1 All ER 1 - note concern to avoid different treatment police officers and
bereaved relatives.

Unwitting instrument of another’s negligence? (Hunter v British Coal [1998] 2 All ER

97 - proximity requirement)

Primary victim need not (always) prove foreseeability of psychiatric injury

Page v Smith [1996] 1 AC 155 Lord Lloyd said foreseeability of psychiatric injury not
essential in such a case, provided some personal injury was foreseeable.

So basically PAGE v SMITH est that primary victim cases are logically different from
secondary victim cases. In PVC’s, personal injury is foreseeable and a duty of care is
established, the ‘kind’ of personal injury is irrelevant.
In SVC’s, there is no likelihood of physical impact involving the claimant, thus the
only way that damage can foreseeably be done is through the psychiatric route, and
foreseeability of injury by this route must be established.

Grieves v FT Everard & Sons Ltd [2008] 1 AC 281.

Primary victim’s liability

Greatorex v Greatorex [2000] 1 WLR 1970

Employees
White v Chief Constable of the South Yorkshire Police [1999] 1 All ER 1 (as above) -
no special protection for employees as secondary victims

Stress at work cases:

About people who get stressed out at work – in these cases the courts are saying in
brief, if you are an employer, you are entitled to make the assumption that your
employees will have a normal level of psychiatric robustness. If you place them under
a reasonable amount of stress/pressure, they are not going to suffer a psychiatric
illness. But if an employee lets you know they are feeling the strain, you don’t do
anything about it, they develop depression. You owe them damages because under
the circumstances you owe them a duty to not make them psychiatrically ill. Maybe
give them counselling/support, reallocate them to another duty. LJ Hale is good in
Hatton – gives guidelines for stress-at-work cases.

White and Alcock requirements still govern employees who suffer psychiatric illness
because of witnessing something shocking at work etc

Hatton v Sutherland [2002] 2 All ER 1 - no special control mechanisms if psychiatric

injury arises out of the work. Treat it according to ordinary principles of employer’s
liability.

Barber v Somerset County Council [2004] 1 WLR 1089 (HL appeal from one of the
Hatton cases)

Hartman v South Essex Mental Health and Community Care NHS Trust [2005] ICR
782, [1]-[16], [126]-[137]

Prisoners
Butchart v Home Office [2006] 1 WLR 1155

Optional further reading

Jones, “Liability for Psychiatric Damage: Searching for a Path between Pragmatism
and Principle” in Neyers et al (eds) Emerging Issues in Tort Law (2007)
Teff "Liability for Negligently Inflicted Psychiatric Harm: Justifications and
Boundaries" [1998] CLJ 91

Points for seminar discussion

(1) Why is a recognised psychiatric injury required for liability?

(2) Why are the duty rules for psychiatric injury so different from the rules for physical
damage?

(3) What distinguishes primary victims from secondary victims?

(4) How do the principles governing stress at work cases differ from the principles
relating to primary and secondary victims? Is the different treatment for stress at work
cases coherent?

Sample questions for discussion in tutorial 1

(1) ‘The distinction between primary and secondary victims in recovery for psychiatric
illness is unsustainable.’ Discuss.
(2) Duncan negligently takes a corner too fast, and ploughs his car into a village
green where cricket is being played. Ashley is watching the cricket, but escapes
injury. Her dogs are killed, and she suffers from pathological grief disorder as a
result. Ian, an ambulance driver, treats the injured at the scene and is severely
traumatised by what he sees. Fred is a paramedic at the scene, but suffers no
immediate ill effect. Subsequently, he explains to his employer (Flintoff Hospital) that
he feels depressed and unable to continue with his work. Flintoff Hospital are short
staffed and tell him he must continue on the ambulances. The Hospital’s staff
counsellors are too busy to see him. Fred is subsequently diagnosed with clinical
depression and has to resign from work. Grace is standing close to the village green
with her daughter. Neither is injured, but Grace cannot stop thinking that it could have
been her daughter who was killed. Grace suffers from clinical depression as a result
of the accident. Advise the parties on their rights and responsibilities in tort.