Psychiatric harm

• Tuesday 21 November 2pm-2.50pm


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• Psychiatric Harm


  A Recap
• Categories of claimant in Psychiatric Harm cases

  • Primary Victims
  • Secondary Victims
• Primary Victims


  • The Page v Smith criteria are applied:
  • A recognised psychiatric injury
  • Foresight of physical injury
  • The 'Egg-Shell Skull' Rule applies
• Secondary Victims


  • It is more difficult to succeed in a claim
  • Proximity requirements limit liability
  • The analysis is more complex
  • Policy plays a larger part
  • The courts are more cautious
  • The courts seem to have lost their way
• Early example of Secondary Victim

  • Bourhill v. Young [1943] AC 92
  • Mrs Bourhill had stumbled upon the aftermath of Young's motorbike accident – she suffered nervous shock as a result of what she witnessed
  • Mrs Bourhill was in no physical danger
  • Mrs Bourhill had no connection with the deceased/injured
  • Claim failed – Mrs Bourhill was just a witness to an event
• Early example of Secondary Victim

  • Bourhill v. Young [1943] AC 92
  • Bourhill remained authority for the proposition that 'mere bystanders' or witnesses to events could not claim to be victims of psychiatric harms for over 40 years
• McLoughlin v. O'Brian [1983] AC 410


  • Mrs M at home. Her husband and children were involved in a car accident 2 miles away (caused by the def's negligence)
  • Mrs M was told of accident about 1 hour later and went to hospital: she witnessed awful scenes…
  • Mrs M suffered severe shock, depression and a change of personality
  • Could she claim damages for the psychiatric harm caused?
• All members of the Lords thought 'yes' – Mrs McLoughlin was a 'secondary victim'
• McLoughlin Judgment


  • Proximity of time and space
  • Proximity of perception
  • Proximity of relationship
• Per Lord Wilberforce (representing the majority view), Mrs McLoughlin had suffered a serious injury due to the defendant's negligence and it was reasonably foreseeable that a person such as Mrs McLoughlin would suffer a psychiatric illness as a result
• Proximity of 'Time and Space'

  Although Mrs McLoughlin did not witness the accident itself, she did see the 'aftermath' of the event
• Proximity of 'Perception'


  Although Mrs McLoughlin was told about the event by a neighbour, she was present at the immediate aftermath and witnessed a horrifying event first hand
• Proximity of 'Relationship'


  Unlike Mrs Bourhill, Mrs McLoughlin has a significantly close relationship with those injured
• Per Lord Bridge, an adherence to these categories would "freeze the law in rigid posture" and would limit the ability of otherwise deserving claimants to succeed
• 95 spectators crushed to death (plus Anthony Bland died of his injuries later...) and 400 spectators injured in the Hillsborough Disaster
• The Hillsborough Disaster was televised simultaneously on TV, and broadcast on the radio
• Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5


  • A 'Test' Case arising out of the Hillsborough disaster
  • Claims for damages for psychiatric illness brought by 15 relatives and a fiancee of the victims of the tragedy
  • Some claimants had been present at the match, but not in the area where the disaster occurred
  • Other claimants had watched the events on TV or heard it on the radio
  • The Chief Constable denied he owed a duty of care to the claimants
• The House of Lords unanimously adopted Lord Wilberforce in McLoughlin: In addition to a reasonable foreseeability of harm is needed, there must be proximity of relationship, proximity of time and space, and proximity of perception
• Proximity of Relationship


  • A close tie of love and affection
  • Proximity is presumed in the case of a spouse, parent or child, and possibly fiancé
  • More distant relatives must show that their relationship is so close that it is comparable to a spouse, parent or child
• Proximity of Time and Space

  • Proximity to the traumatic event also includes coming upon its 'immediate aftermath' – see McLoughlin v. O'Brian
  • The HoL held that 'immediate aftermath' did not extend to cover those who had attended temporary mortuaries 8 or 9 hours after the Hillsborough disaster
• Proximity of Perception


  • Claimant must see or hear the terrible event or its immediate aftermath with "their own unaided senses"
  • Notification by a third party (e.g. newspaper, TV, radio, or someone else) will not do
  • Those who saw the Hillsborough disaster on TV did not establish the necessary proximity
  • Lord Ackner said that a claim might not necessarily be ruled out, however, but this would be an exceptional case
• Alcock - 2 further requirements

  • Shock must be caused by a 'sudden appreciation' of danger. There must be a sudden impact on the nervous system
  • The event must be one which is sufficiently horrific as to be likely to cause shock to a person of ordinary fortitude
• Alcock v Chief Constable of South Yorkshire Police is a leading case, is STRONG AUTHORITY – it is a UNANIMOUS decision, and has created a difficult hurdle for claimants
• Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792


  • Alcock: "A sudden appreciation of danger"
  • In Walters a mother claimed damages for psychiatric harms caused by the defendant hospital
  • Mrs Walter's son died following a misdiagnosis and misprognosis
  • The chain of events – which lasted for 36 hours – would constitute an broken continuum; it was 'a seamless tale with an obvious beginning and an obvious end'
• Galli-Atkinson v Seghal [2003] All ER (D) 341


  • A 'sympathetic' approach to proximities?
  • Mrs Galli-Atkinson claimed damages for psychiatric harm following the death of her daughter due to the defendant's negligent driving
  • Mrs Galli-Atkinson did not see or hear the accident, but was told of it by a third party
  • She visited the mortuary a short time late: the 'aftermath' would, on the facts of this case, include a visit to the mortuary
• Taylor v A Novo (UK) Ltd [2014] QB 150 CA


  • A woman was injured at work due to the defendant's negligence
  • A few weeks later the woman died of her injuries
  • Her daughter was present at her mother's death but she was not present at the scene of the original incident
  • The daughter's claim would fail for lack of proximity of time and space, and perception: she had not witnessed the 'event' but instead she was present during the 'consequences of that event'
• Paul v. Royal Wolverhampton NHS Trust; Polmear v. Royal Cornwall Hospital NHS Trust; Purchase v. Ahmed [2022] EWCA Civ 12


  • In all three appeals a family member died as a result of medical negligence
  • In all cases this death occurred some time after the event
  • In two cases the death occurred in the presence of a family member. In the third the family member was present at the immediate aftermath
  • The question turns on the relevance of any time intervals between the clinical negligence, the damage caused by it, and the horrific event that ultimately causes the psychiatric injury to the claimant
  • For a secondary victim to be sufficiently proximate to claim for psychiatric injury against the defendant whose clinical negligence caused the primary victim injury, the horrific event cannot be a separate event removed in time from the negligence
• On the basis of the above, all of the claims were dismissed. Leave to appeal to the Supreme Court granted
• Rescuers


  Once, rescuers were considered to be a distinct category of claimant, inherently worthy of the protection of the law
• White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (House of Lords)


  • Police involved at Hillsborough who suffered PTSD sued the Chief Constable in negligence for damages
  • Unless a rescuer is physically endangered, or reasonably believes he is, he is not a primary victim
• Greatorex v. Greatorex [2000] 4 All ER 769


  • Claimant, a fireman (suffered PTSD) after rescuing his son from a trapped car after an accident – son had been drinking and drove on the wrong side of the road. Father sued son
  • Even though he was a secondary victim (proximities and reasonable foreseeability rules satisfied), no duty of care on the grounds of policy – where primary victim's (the son's) injury was self-inflicted
• Unwitting Agents of Misfortune/Involuntary Participants


  This is where the negligent act of the defendant has put the claimant in a position where he is (or thinks he is) the involuntary cause of another person's death or injury, and this results in the claimant suffering psychiatric injury
• Dooley v. Cammell Laird [1951] 1 Lloyd's Rep 271


  • Crane-driver suffered Psych illness after seeing a defective rope on his crane snap thereby causing the crane to drop its load into the hold of a ship where he knew his fellow employers were working
  • Although no one was in fact injured, the claimant had feared for their safety. Suffered nervous shock. Sued his employer. Claim successful
• Hunter v British Coal [1998] 3 WLR 685


  • Mr Hunter believed himself to be to blame for the death of a colleague, Mr Carter. The actual blame lay with his employers, British Coal
  • Mr Hunter's claim for psychiatric injuries dismissed…the spectre of Alcock haunts this judgment
  • Per Brooke LJ: "The law requires a greater degree of physical and temporal proximity than was present in this case before Mr Hunter could be treated as a…victim in Mr Carter's accident"
• Barber v. Somerset CC [2004] 2 All ER 385

  • No 'special rules' for governing cases of occupational stress, instead the behaviour of the employers would be measured against "the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know…"