TORT LAW

LECTURE 13
PSYCHIATRIC
ILLNESS
Ms Gallop
INTRODUCTION
 Psychiatric injury has tended to provoke very
strong opinions in relation to tort law
 On one end of the spectrum there is the view
that psychiatric illness should be treated as
if were any other physical injury
 Others have a deep scepticism about
psychiatric illnesses and the need to provide
compensation for such injuries.
 English law has tended to steer a middle
course between the two views.
 It is like pure economic loss in that a duty of
care is not always recognised; especially
when the psychiatric injury is caused by
threat or injury to someone else.
 It is considered to be a problem area as:
 (1) There is not enough medical knowledge
 (2) There are worries about fraudulent
claims
 (3) There are also floodgate concerns
 In the beginning there was definitely a degree
of scepticism, and a concern that admitting
claims for psychiatric illnesses in what may be
described as the floodgates argument.
 In Victorian Railway Commissioners v Coultas
(1888) the Privy Council held that the
psychiatric injury suffered by a woman when
she was nearly it by a train after negligently
being allowed onto a level crossing by a
gatekeeper was not a natural and reasonable
result of the negligence and therefore was too
remote.
WITNESSES
 In the case of Dulieu v White (1901) it was
stated that liability for psychiatric illness
would only arise when it was caused by
reasonable fear of personal injury to
oneself.
 If accepted this would preclude liability to
someone who simply witnessed injury to
another persons, or who reasonably feared
injury to another person.
 This was rejected by the Court of Appeal in
the case of Hambrook v Stokes Bros where
the defendant’s were held liable for a fatal
nervous shock suffered by a woman who
watched as a runaway lorry rolled down a
road towards the spot, just out of her view,
where she had just dropped her children. She
was almost immediately told that a child
very similar to her child had been injured. As
a result of her nervous shock she eventually
ended up dying.
 McLoughlin v O’Brian – in this case the
plaintiff, Mrs McLoughlin, suffered nervous
shock after her husband and three children
were involved in a car accident and seriously
injured. One of the children died as a result
of the crash. When the accident occurred Mrs
McLoughlin was two miles away, but she was
told of the accident by a friend and was
driven to the hospital where she arrived
approximately two hours after the accident.
 There she saw her children covered in cuts
and bruises, covered in dirt and oil and heard
them cry and scream. Whilst she was there
one of the children slipped into
unconsciousness.
 As a result of these experiences she suffered
severe shock, depression and a personality
change.
 Held – after being rejected in both the lower
courts the House of Lords gave judgment in
favour of the plaintiff.
 A test for whether someone who was not
directly involved in the accident but who
suffered nervous shock could recover was
established.
 Firstly there had to be a close relationship
between the plaintiff and the victims of the
accident, a criterion met in this case due to
the close family ties.
 Secondly the test further required that the
plaintiff was in close proximity to the
accident in time and place. Although
McLoughlin was not at the scene of the
accident, it was held that witnessing the
immediate aftermath, as she had done, was
sufficient.
 Certain issues were left unresolved,
however, such as whether the court should
adopt a restrictive or expansive approach to
liability for psychiatric injury.
 Where a personal injury is suffered a claim is
possible for loss of amenity resulting from
the injury, but also for pain and suffering.
 However as regards psychiatric illnesses the
claimant must establish that they have
suffered a recognised psychiatric illness
beyond grief, distress or anxiety.
 Alcock v Chief Constable of South Yorkshire –
the Hillsborough Stadium disaster occurred in
1989. The police negligently controlled the
crowds for a football game, and as a result
96 people died and over 400 were injured in
stampedes. As the disaster unfolded it was
broadcast on live TV. There was no question
as to the liability of the police for the death
and injuries suffered by people in the
stadium. Questions remained, however,
about the liability of the police for
psychiatric injury.
 This case was a test case brought by those
claiming post-traumatic stress disorder after
the incident. Some were at the stadium, some
were outside the stadium, some watched the
events unfold on live TV and some had to
identify bodies in the make-shift mortuary at
the ground. The claimant’s ranged from
parents, spouses, fiancées and step-brothers.
 The defendants admitted negligence but
suggested that they did not owe a duty of are
to this class of claimants.
 In this case all the claims failed and a control
mechanism for when secondary victims could
claim was set out:
 (1) There had to be proximity of relationship
(based on love and affection)
 (2) There had to be proximity in time (that is
the injury had to be suffered in the
immediate aftermath)
 (3) There had to be proximity in perception
(there had to be direct sight and sound,
beyond viewing on the television)
PROXIMITY OF RELATIONSHIP
 It is necessary for any claimant to establish a
“close tie of love and affection” with person
injured or endangered.
 In the first instance of Alcock the court held
that all relationships within the nuclear
family, including sibling relationships,
involved relationships of love and affection.
 The House of Lords took a much narrower
approach however and said that the quality of
relationships tended to be so varied that the
presumption was not applicable in such cases.
 In McCarthy v Chirf Constable of South
Yorkshire Police, for example, it was held
that a step-brother did have a relationship of
love and affection with his step-brother who
died in the incident; therefore he could
claim.
 This requirement seems to close the door to
mere bystanders, however in Alcock in
obiter, some judges admitted there might be
liability to a bystander when they witnessed
something that was particularly horrific.
PROXIMITY IN TIME AND SPACE
 It is clear that the person need not actually
be at the accident at the time it occurs. Thus
the aftermath of an accident was extended
by the House of Lords to include temporal
differences, but also spatial differences from
the accident scene to the hospital (for
example).
 In Galli-Atkinson v Seghal the C’s 16 year old
daughter was killed by a car which
dangerously mounted the pavement. The C
went looking for her and found the police
cordon, and was told her daughter was dead.
She then went to the mortuary and viewed
the body. The court held that this
constituted an interrupted sequence of
events and the immediate aftermath
extended to the viewing of the body in the
mortuary.
PROXIMITY OF PERCEPTION
 The claimant must suffer psychiatric injury as
a direcct result of hearing or seeing the
accident or its immediate aftermath.
 For example there can be no liability when
the C is merely told about the accident by a
third party
 In Palmer v Tees Health Authority the C
sought damages after her 4 year old child was
abducted by a former psychiatric patient. A
body was discovered four days later, and the
C suffered visions and nightmares in this time.
 She did not see the body for another three days
after it was found.
 The claim for psychiatric injury was struck out
as at the time the mother was suffering with the
pyschiatric illness she had not seen the body.
 In W V Essex County Council the C’s child had
been sexually abused by a foster parent, with
whom the defendant had placed the child. The
parents had not seen the abuse or its immediate
aftermath, but the HoL declined to strike out
the claim. However they held there was no
proximity in time.
CLAIMS AGAINST THE PRIMARY
VICTIM

 In Greatorex v Greatorex the Claimant, a

fireman, was called to an accident where his
son had been injured, due to his own
negligence. He then sued his son for post-
traumatic stress disorder.
 The Court held that a person who injured
themselves owed no duty of care to a person
who suffered psychiatric injury as a result.
NEGLIGENT GIVING OF
INFORMATION
 AB v Tameside an Glossop Health Authority –
in this case the health authority sent out a
warning letter to a number of patients to
inform them that a former employee was HIV
positive, and there was a small risk of
infection. The patients alleged that they
should have been informed of this risk face-
to-face as opposed to in a letter. It was held
that there was a duty of care in relation to
psychiatric injury in this case, as there was a
previous relationship. However there was no
liability as there was no causation.
NEGLIGENT GIVING OF
INFORMATION
 Allin v City and Hackney Health Authority – in
this case the plaintiff was told that her baby
had died. Six hours later she found out in
fact that her baby had survived. As a result
of this misinformation the claimant suffered
from PTSD. The defendant conceded that
they owed the claimant a duty of care (due
to the previous relationship), and they did
not actual communicate the information
negligently. However it was held that the
defendant’s were liable in this case.