Tort – Psychiatric Harms
Background and context
- Historically courts have been reluctant to allow claims – often
restricted claims to a certain ‘type’ of claimants.
- Courts less cautious nowadays but still impose additional hurdles
upon claimants in certain situations.
Primary Victims
Dulieu v White [1901]
- Mrs D was working in a public house.
- White negligently drove a horse drawn van into the bar where she
was serving.
- Mrs D suffered shock which caused a miscarriage. Sued the
defendant.
- D held liable for causing nervous shock resulting in miscarriage -as
the claimant believed herself to be in danger.
Hambrook v Stokes [1925]
- Mother sees lorry careering down a hill.
- Her children out of sight (Mrs H believed them to be at the bottom of
the hill.
- Collision.
- Suffered through fear of injury to her children.
Court rejected Dulieu as applied only to someone who feared for their own
safety.
- Claimant (CL) involved in an incident caused by the defendant is
known as a ‘Primary Victim’.
- The DEF caused death, injury of imperilment of X, and the CL can
establish a special sort of proximity with X CL is a ‘Secondary
Victim’.
- The CL is a rescuer.
- The CL is an involuntary participant in an incident.
- The CL suffers stress at work.
It must be an event caused by the DEF, in which the CL was involved,
which causes a recognised psychiatric injury to the claimant – anxiety and
stress will generally not suffice.
Primary victims
Page v Smith [1995]
, - Mr Page was injured in a car accident of moderate severity caused
by Smith’s negligent driving.
- No physical injury.
- Mr Page suffered a recurrence of CFS- and became unable to work
again.
- Smith liable.
This case sets out the template for Primary Victims:
- The CL must suffer a recognised psychiatric injury.
- There must be a foreseeable physical Injury.
- Eggshell/Thin Skull Rule applies in primary victim cases. Take
your victim as you find them.
- Mere depression, anxiety and grief are insufficient.
- Medical conditions such as PTSD will generally suffice.
- ‘Severe’ or ‘debilitating’ depression or anxiety or anxiety can,
however, be symptoms of a recognised psychiatric injury.
- “Expert medical evidence will normally be necessary to establish
that the claimant has suffered a recognised psychiatric illness.” Law
Commission Consultation on Liability for Psychiatric Illness, paper
No 137, 1995, HMSO.
The Page criteria: Was the claimant in the so-called ‘Zone of Danger’
(Must be either in the zone of danger or believe themselves to be in.
danger)?
McFarlane v EE Caledonia [1994] CL could not reasonably believe to be in
danger.
Young v Charles Church [1997] Even though CL did not believe themselves
to be imperilled, and objective view was that he was in danger.
McLoughlin v Jones and Others [2002]
Johnston v NEI International Combustion Ltd [2007]
- Incarceration in prison can create risk of physical harm.
- Fear of future events does not constitute physical harm.
- ‘Egg Shell Skull’ Rule
Secondary Victims
An early example: Bourhill v Young [1943]
Background and context
- Historically courts have been reluctant to allow claims – often
restricted claims to a certain ‘type’ of claimants.
- Courts less cautious nowadays but still impose additional hurdles
upon claimants in certain situations.
Primary Victims
Dulieu v White [1901]
- Mrs D was working in a public house.
- White negligently drove a horse drawn van into the bar where she
was serving.
- Mrs D suffered shock which caused a miscarriage. Sued the
defendant.
- D held liable for causing nervous shock resulting in miscarriage -as
the claimant believed herself to be in danger.
Hambrook v Stokes [1925]
- Mother sees lorry careering down a hill.
- Her children out of sight (Mrs H believed them to be at the bottom of
the hill.
- Collision.
- Suffered through fear of injury to her children.
Court rejected Dulieu as applied only to someone who feared for their own
safety.
- Claimant (CL) involved in an incident caused by the defendant is
known as a ‘Primary Victim’.
- The DEF caused death, injury of imperilment of X, and the CL can
establish a special sort of proximity with X CL is a ‘Secondary
Victim’.
- The CL is a rescuer.
- The CL is an involuntary participant in an incident.
- The CL suffers stress at work.
It must be an event caused by the DEF, in which the CL was involved,
which causes a recognised psychiatric injury to the claimant – anxiety and
stress will generally not suffice.
Primary victims
Page v Smith [1995]
, - Mr Page was injured in a car accident of moderate severity caused
by Smith’s negligent driving.
- No physical injury.
- Mr Page suffered a recurrence of CFS- and became unable to work
again.
- Smith liable.
This case sets out the template for Primary Victims:
- The CL must suffer a recognised psychiatric injury.
- There must be a foreseeable physical Injury.
- Eggshell/Thin Skull Rule applies in primary victim cases. Take
your victim as you find them.
- Mere depression, anxiety and grief are insufficient.
- Medical conditions such as PTSD will generally suffice.
- ‘Severe’ or ‘debilitating’ depression or anxiety or anxiety can,
however, be symptoms of a recognised psychiatric injury.
- “Expert medical evidence will normally be necessary to establish
that the claimant has suffered a recognised psychiatric illness.” Law
Commission Consultation on Liability for Psychiatric Illness, paper
No 137, 1995, HMSO.
The Page criteria: Was the claimant in the so-called ‘Zone of Danger’
(Must be either in the zone of danger or believe themselves to be in.
danger)?
McFarlane v EE Caledonia [1994] CL could not reasonably believe to be in
danger.
Young v Charles Church [1997] Even though CL did not believe themselves
to be imperilled, and objective view was that he was in danger.
McLoughlin v Jones and Others [2002]
Johnston v NEI International Combustion Ltd [2007]
- Incarceration in prison can create risk of physical harm.
- Fear of future events does not constitute physical harm.
- ‘Egg Shell Skull’ Rule
Secondary Victims
An early example: Bourhill v Young [1943]
