Psychiatric Injury Law detailed notes
Psychiatric injury has traditionally been known by courts as nervous shock
which then has brought much confusion in the area of law by being
completely misleading. This term implies that claimants can seek
damages because they are shocked as the result of the defendant’s
negligence, upset, or frightened. In order to claim for nervous shock, the
claimants have to prove that they have suffered from a genuine illness or
injury. In some situations, the illness or injury may be a physical, brought
as a result of mental shock. For example, in Bourhill v Young, a woman
had a miscarriage as a result of shock caused by witnessing a terrible
road accident. If the shock has not caused a physical illness or injury, the
claimant must prove that it caused a positive psychiatric illness as
described in McLoughlin v O’Brian. Some examples of these include,
clinical depression, personality changes and post-traumatic stress
disorder, which mostly occurs in reaction to the violent or unexpected
death of a close person.
However, this does not include people who are simply upset by a shock no
matter how bad it is, they have to recognize psychiatric illness and
medical evidence will be needed to prove that. Therefore, claimants who
can prove such injury can only claim in negligence if they can be able to
establish that they are owed a duty of care by the defendant in regarding
the psychiatric illness, and the defendant’s negligence caused the injury.
The case law then has developed a set of rules covering different
situations of a claimant depending on their relationship with the event
that caused the shock. These categories have varied at different stages of
the law, however since the most recent case of Alcock v Chief Constable
of South Yorkshire as well as White v Chief Constable of South
Yorkshire there are now three categories:
Those who are physically injured in the event caused by the defendant
and psychiatrically injured as a result of it (primary victims)
Those who are put in danger of physical harm but actually only suffer
psychiatric injury (primary victims), and
Those who are NOT put in danger of physical injury but only suffer
psychiatric injury as a result of witnessing such injury to others (secondary
victims).
Primary Victims
A primary victim is one who suffers psychiatric injury after being directly
in an accident and is either himself physically injured or put in a fear of
injury. An accident victim who suffers physical injury due to the
negligence of another person can recover damage not only for the
physical injuries but also for the psychiatric injury. The case of White v
, Chief Constable of South Yorkshire confirms that if a person negligently
puts another to a risk of injury, then they will be liable for any damage.
This was established by the leading case of Dulieu v White & Sons where
the defendant negligently drove his van into the premises, the victim
feared for her safety, although she was not actually struck, she was
frightened and suffered miscarriage as a result. The defendant was
regarded liable even though there was no physical impact as he could
have foreseen that the claimant would have suffered such shock.
Therefore, we can see that the issue of foreseeability has been taken into
account regarding the primary victims, where if psychiatric injury is
foreseeable in such a situation then the claimant can claim and be
compensated.
The leading case of primary victims who are exposed to injury, but not
actually physically hurt, is the case of Page v Smith where the victim was
involved in an accident but was not injured, however he later suffered a
serious illness called myalgic encephalomyelitis. Before the accident, this
illness was in remission but after the accident the symptoms began to
occur and he claimed it was caused by the shock of the accident. It was
held in such a case there was duty of care and it was not necessary that
the psychiatric injury itself was foreseeable because the defendant’s
behavior would expose the victim to a risk of physical injury. This
approach was followed in Simmons v British Steel plc where the claimant
was physically injured in a workplace accident. He developed a severe
skin condition as a result of shock and anger that happened to him. He
had to take a lot of time off work, which then led him to develop a
depressive illness. It was decided that the defendants were liable for his
skin condition and depression that he suffered. It did not matter that the
type of injuries was not foreseeable or that the victim who was more
psychologically healthy might not have been affected in this way, as they
had exposed him to a foreseeable risk of physical injury.
Although the claimant can claim for psychiatric illness caused by fears for
their own safety even though no physical injury occurred, there has to be
some basis for the fears. In McFarlane v Wilkinson, it was held that the
fear has to be reasonable given the nature of the risk as well as the
claimant’s situation. However what is unclear is whether the claimant can
be considered as a primary victim if they were not actually in physical
danger but had reasonable grounds for thinking that they might be. The
two leading judgments in the case of White v Chief Constable of South
Yorkshire differ a bit in this situation: First it was discussed that the
claimant must have objectively exposed himself to danger or reasonably
believed that he was doing so; on the other hand it was referred to
primary victims being in the position of foreseeable physical injury.
Obviously in many cases the reasonable belief that the claimant was in
danger arises from the fact that they actually were.
Moreover in CJD Group B Claimants v The Medical Research Council it was
suggested that there might be a group which could not be considered as
Psychiatric injury has traditionally been known by courts as nervous shock
which then has brought much confusion in the area of law by being
completely misleading. This term implies that claimants can seek
damages because they are shocked as the result of the defendant’s
negligence, upset, or frightened. In order to claim for nervous shock, the
claimants have to prove that they have suffered from a genuine illness or
injury. In some situations, the illness or injury may be a physical, brought
as a result of mental shock. For example, in Bourhill v Young, a woman
had a miscarriage as a result of shock caused by witnessing a terrible
road accident. If the shock has not caused a physical illness or injury, the
claimant must prove that it caused a positive psychiatric illness as
described in McLoughlin v O’Brian. Some examples of these include,
clinical depression, personality changes and post-traumatic stress
disorder, which mostly occurs in reaction to the violent or unexpected
death of a close person.
However, this does not include people who are simply upset by a shock no
matter how bad it is, they have to recognize psychiatric illness and
medical evidence will be needed to prove that. Therefore, claimants who
can prove such injury can only claim in negligence if they can be able to
establish that they are owed a duty of care by the defendant in regarding
the psychiatric illness, and the defendant’s negligence caused the injury.
The case law then has developed a set of rules covering different
situations of a claimant depending on their relationship with the event
that caused the shock. These categories have varied at different stages of
the law, however since the most recent case of Alcock v Chief Constable
of South Yorkshire as well as White v Chief Constable of South
Yorkshire there are now three categories:
Those who are physically injured in the event caused by the defendant
and psychiatrically injured as a result of it (primary victims)
Those who are put in danger of physical harm but actually only suffer
psychiatric injury (primary victims), and
Those who are NOT put in danger of physical injury but only suffer
psychiatric injury as a result of witnessing such injury to others (secondary
victims).
Primary Victims
A primary victim is one who suffers psychiatric injury after being directly
in an accident and is either himself physically injured or put in a fear of
injury. An accident victim who suffers physical injury due to the
negligence of another person can recover damage not only for the
physical injuries but also for the psychiatric injury. The case of White v
, Chief Constable of South Yorkshire confirms that if a person negligently
puts another to a risk of injury, then they will be liable for any damage.
This was established by the leading case of Dulieu v White & Sons where
the defendant negligently drove his van into the premises, the victim
feared for her safety, although she was not actually struck, she was
frightened and suffered miscarriage as a result. The defendant was
regarded liable even though there was no physical impact as he could
have foreseen that the claimant would have suffered such shock.
Therefore, we can see that the issue of foreseeability has been taken into
account regarding the primary victims, where if psychiatric injury is
foreseeable in such a situation then the claimant can claim and be
compensated.
The leading case of primary victims who are exposed to injury, but not
actually physically hurt, is the case of Page v Smith where the victim was
involved in an accident but was not injured, however he later suffered a
serious illness called myalgic encephalomyelitis. Before the accident, this
illness was in remission but after the accident the symptoms began to
occur and he claimed it was caused by the shock of the accident. It was
held in such a case there was duty of care and it was not necessary that
the psychiatric injury itself was foreseeable because the defendant’s
behavior would expose the victim to a risk of physical injury. This
approach was followed in Simmons v British Steel plc where the claimant
was physically injured in a workplace accident. He developed a severe
skin condition as a result of shock and anger that happened to him. He
had to take a lot of time off work, which then led him to develop a
depressive illness. It was decided that the defendants were liable for his
skin condition and depression that he suffered. It did not matter that the
type of injuries was not foreseeable or that the victim who was more
psychologically healthy might not have been affected in this way, as they
had exposed him to a foreseeable risk of physical injury.
Although the claimant can claim for psychiatric illness caused by fears for
their own safety even though no physical injury occurred, there has to be
some basis for the fears. In McFarlane v Wilkinson, it was held that the
fear has to be reasonable given the nature of the risk as well as the
claimant’s situation. However what is unclear is whether the claimant can
be considered as a primary victim if they were not actually in physical
danger but had reasonable grounds for thinking that they might be. The
two leading judgments in the case of White v Chief Constable of South
Yorkshire differ a bit in this situation: First it was discussed that the
claimant must have objectively exposed himself to danger or reasonably
believed that he was doing so; on the other hand it was referred to
primary victims being in the position of foreseeable physical injury.
Obviously in many cases the reasonable belief that the claimant was in
danger arises from the fact that they actually were.
Moreover in CJD Group B Claimants v The Medical Research Council it was
suggested that there might be a group which could not be considered as
