Psychiatric harm
The case law relating to negligently inflicted psychiatric harm has been divided into claims by
secondary victims and claims by primary victims. Secondary victims are those who suffer psychiatric
harm as a result of injury to, or death, or impairment of another (a mother seeing her child being killed
due to the defendant’s negligence and suffering PTSD). In these cases, policy-based restrictions have
applied to limit the recognition of duties to take care. Primary victims, on the other hand, include
those who suffer psychiatric damage by being exposed to physical danger, reasonably believing that
they were exposed to physical danger, or somehow getting involved in an accident as a rescuer or an
unwilling participant. Other categories of primary victim claims are also emerging, for example,
where the defendant has assumed responsibility towards the claimant or where there is a prior
contractual relationship.
The nature of psychiatric damage:
Psychiatric damage is capable of being recoverable under the tort of negligence. But there is a sharp
distinction that has to be drawn between recognised psychiatric conditions which may constitute
damage, and normal emotional distress of one sort or another.
McLoughlin v O’Brian [1983], common law gives no damages for the emotional distress which any
normal person experiences when someone he loves is killed or injured. The first hurdle which a
plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering
not merely grief, distress, or any other normal emotion, but a positive psychiatric illness. Severe
physical damage to the human body and system may be caused by the impact through the senses of
external events on the mind. It follows that physical damage such as an accident may lead to
psychiatric harm.
Dulieu v White & Sons [1901], a nervous shock which causes serious bodily illness is said to be
accompanied by physical injury.
Page v Smith [1995], some injuries such as chronic fatigue syndrome or ‘M.E’ cannot be categorised
as either purely physical or psychiatric.
Control devices to limit recovery of psychiatric harm in general:
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. But shock is not required where the claimant suffered psychiatric harm through being
overworked. The purpose of the sudden shock requirement is largely to avoid claims by individuals
who are considered too remote in time and space from the initial incident. The requirement aims to
close the floodgates of liability. However, it also rules out claims where an event is not sufficiently
shocking or sudden to cause foreseeable illness even when witnessed first-hand. This is to be judged
on an objective basis.
Jaensch v Coffey [1984], psychiatric illness requires shock which is understood in the context of the
sudden sensory perception, that is by hearing, seeing, or touching, of a person, thing, or event, which
is so distressing that the phenomenon offences the plaintiff's mind and causes a recognisable
psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not
compensable, the plaintiff needs to hear, touch, or otherwise perceive the distressing phenomenon.
Liverpool Women’s Hospital v Ronayne [2015], psychiatric illness must be caused by a specific
shocking event. In this case, doctors negligently performed a negligent operation on the claimant’s
wife, and they made her seriously ill. He witnessed her in the aftermath and suffered a psychiatric
1
, illness (PTSD). She remained in intensive care for 5 weeks. The Court held that he did not witness a
shocking event, but a series of events over a period of time, so he was not owed a duty of care.
Young v MacVean [2015], this control device ruled out claims the claim of the plaintiff after seeing
the aftermath of the fatal accident that a loved one was the victim of.
Primary victim claims:
Primary victims are those who suffer psychiatric damage by being exposed to physical danger
themselves, reasonably believing that they were exposed to physical danger, or somehow getting
involved in an accident as a rescuer or an unwilling participant. They are participants in the accident
not mere bystanders. The test of foreseeability is foreseeability in the practical sense, which is the
ordinary kind of foreseeability applied in the tort of negligence. It involves asking “would a
reasonable person in the place of the claimant at the time of negligence have foresaw the risk of
personal injury?”.
Physical injury accompanied by psychiatric harm:
It is common for those suffering physical injury to recover damages not only in respect of their
physical injuries but also for any mental effects including psychiatric damage associated with these
injuries. Psychiatric injuries are no less real than physical ones, and they can contribute to the
financial consequences of an injury including loss of earnings.
Physical endangerment without physical impact may lead to mental harm:
Dulieu v White [1901], the plaintiff who was pregnant was behind the bar of a public house when a
horse-driven cart was negligently driven into the building. There is no physical contact with the
plaintiff, but the Court of Appeal accepted that as a consequence of the shock, she became seriously
illness and gave birth prematurely. It was held that such an injury could be compensated for but the
only limitation to such a claim is that the shock must be a shock which arises from a reasonable fear
of immediate personal injury to oneself.
Page v Smith [1996], a moderate-impact road accident in which the plaintiff was mildly physically
endangered but suffered no immediate physical harm has led him to suffer the exacerbation of a pre-
existing condition known as chronic fatigue syndrome. The plaintiff was a participant, and he was
himself directly involved in the accident and well within the range of foreseeable physical injury.
Chronic fatigue syndrome is very hard to categorise as either psychiatric or physical in its nature, but
it had clearly been brought about by the psychiatric route. By a majority, the House of Lords held that
the plaintiff could in principle recover damages subject to further consideration of factual causation,
as in “had the worsening of the condition truly been caused by the accident?” In the case of a car
accident such as this, the defendant could reasonably foresee that it would cause personal injury to the
plaintiff (physical or psychiatric). Thus, he owes a duty of care to the plaintiff. The only thing left to
decide is whether the physical injury is enough to enable the plaintiff to recover damages for nervous
shock. In the case of a secondary victim, the question will usually turn on whether the foreseeable
injury was psychiatric (not physical), since there is no likelihood of physical impact involving the
claimant. The test of foreseeability is foreseeability in the practical sense based on what “a reasonable
person in the place of the claimant at the time of negligence would have foresaw”.
McLoughlin v Jones [2001], the plaintiff was a primary victim and the negligence on part of the
solicitor was said to have led to his imprisonment. Thus, the defendant solicitor was liable.
Barber v Somerset [2004] UKHL, the court affirmed that the test of foreseeability in primary victim
cases is “practical foreseeability” based on whether the reasonable person would have foreseen the
risk of personal injury, because an employer owes a duty to each individual employee and not a
random member of the public. Thus, an employer may know, or he should know, of a particular
2
The case law relating to negligently inflicted psychiatric harm has been divided into claims by
secondary victims and claims by primary victims. Secondary victims are those who suffer psychiatric
harm as a result of injury to, or death, or impairment of another (a mother seeing her child being killed
due to the defendant’s negligence and suffering PTSD). In these cases, policy-based restrictions have
applied to limit the recognition of duties to take care. Primary victims, on the other hand, include
those who suffer psychiatric damage by being exposed to physical danger, reasonably believing that
they were exposed to physical danger, or somehow getting involved in an accident as a rescuer or an
unwilling participant. Other categories of primary victim claims are also emerging, for example,
where the defendant has assumed responsibility towards the claimant or where there is a prior
contractual relationship.
The nature of psychiatric damage:
Psychiatric damage is capable of being recoverable under the tort of negligence. But there is a sharp
distinction that has to be drawn between recognised psychiatric conditions which may constitute
damage, and normal emotional distress of one sort or another.
McLoughlin v O’Brian [1983], common law gives no damages for the emotional distress which any
normal person experiences when someone he loves is killed or injured. The first hurdle which a
plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering
not merely grief, distress, or any other normal emotion, but a positive psychiatric illness. Severe
physical damage to the human body and system may be caused by the impact through the senses of
external events on the mind. It follows that physical damage such as an accident may lead to
psychiatric harm.
Dulieu v White & Sons [1901], a nervous shock which causes serious bodily illness is said to be
accompanied by physical injury.
Page v Smith [1995], some injuries such as chronic fatigue syndrome or ‘M.E’ cannot be categorised
as either purely physical or psychiatric.
Control devices to limit recovery of psychiatric harm in general:
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. But shock is not required where the claimant suffered psychiatric harm through being
overworked. The purpose of the sudden shock requirement is largely to avoid claims by individuals
who are considered too remote in time and space from the initial incident. The requirement aims to
close the floodgates of liability. However, it also rules out claims where an event is not sufficiently
shocking or sudden to cause foreseeable illness even when witnessed first-hand. This is to be judged
on an objective basis.
Jaensch v Coffey [1984], psychiatric illness requires shock which is understood in the context of the
sudden sensory perception, that is by hearing, seeing, or touching, of a person, thing, or event, which
is so distressing that the phenomenon offences the plaintiff's mind and causes a recognisable
psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not
compensable, the plaintiff needs to hear, touch, or otherwise perceive the distressing phenomenon.
Liverpool Women’s Hospital v Ronayne [2015], psychiatric illness must be caused by a specific
shocking event. In this case, doctors negligently performed a negligent operation on the claimant’s
wife, and they made her seriously ill. He witnessed her in the aftermath and suffered a psychiatric
1
, illness (PTSD). She remained in intensive care for 5 weeks. The Court held that he did not witness a
shocking event, but a series of events over a period of time, so he was not owed a duty of care.
Young v MacVean [2015], this control device ruled out claims the claim of the plaintiff after seeing
the aftermath of the fatal accident that a loved one was the victim of.
Primary victim claims:
Primary victims are those who suffer psychiatric damage by being exposed to physical danger
themselves, reasonably believing that they were exposed to physical danger, or somehow getting
involved in an accident as a rescuer or an unwilling participant. They are participants in the accident
not mere bystanders. The test of foreseeability is foreseeability in the practical sense, which is the
ordinary kind of foreseeability applied in the tort of negligence. It involves asking “would a
reasonable person in the place of the claimant at the time of negligence have foresaw the risk of
personal injury?”.
Physical injury accompanied by psychiatric harm:
It is common for those suffering physical injury to recover damages not only in respect of their
physical injuries but also for any mental effects including psychiatric damage associated with these
injuries. Psychiatric injuries are no less real than physical ones, and they can contribute to the
financial consequences of an injury including loss of earnings.
Physical endangerment without physical impact may lead to mental harm:
Dulieu v White [1901], the plaintiff who was pregnant was behind the bar of a public house when a
horse-driven cart was negligently driven into the building. There is no physical contact with the
plaintiff, but the Court of Appeal accepted that as a consequence of the shock, she became seriously
illness and gave birth prematurely. It was held that such an injury could be compensated for but the
only limitation to such a claim is that the shock must be a shock which arises from a reasonable fear
of immediate personal injury to oneself.
Page v Smith [1996], a moderate-impact road accident in which the plaintiff was mildly physically
endangered but suffered no immediate physical harm has led him to suffer the exacerbation of a pre-
existing condition known as chronic fatigue syndrome. The plaintiff was a participant, and he was
himself directly involved in the accident and well within the range of foreseeable physical injury.
Chronic fatigue syndrome is very hard to categorise as either psychiatric or physical in its nature, but
it had clearly been brought about by the psychiatric route. By a majority, the House of Lords held that
the plaintiff could in principle recover damages subject to further consideration of factual causation,
as in “had the worsening of the condition truly been caused by the accident?” In the case of a car
accident such as this, the defendant could reasonably foresee that it would cause personal injury to the
plaintiff (physical or psychiatric). Thus, he owes a duty of care to the plaintiff. The only thing left to
decide is whether the physical injury is enough to enable the plaintiff to recover damages for nervous
shock. In the case of a secondary victim, the question will usually turn on whether the foreseeable
injury was psychiatric (not physical), since there is no likelihood of physical impact involving the
claimant. The test of foreseeability is foreseeability in the practical sense based on what “a reasonable
person in the place of the claimant at the time of negligence would have foresaw”.
McLoughlin v Jones [2001], the plaintiff was a primary victim and the negligence on part of the
solicitor was said to have led to his imprisonment. Thus, the defendant solicitor was liable.
Barber v Somerset [2004] UKHL, the court affirmed that the test of foreseeability in primary victim
cases is “practical foreseeability” based on whether the reasonable person would have foreseen the
risk of personal injury, because an employer owes a duty to each individual employee and not a
random member of the public. Thus, an employer may know, or he should know, of a particular
2
