1
LW 201: Tort Law
WEEK 2: PSYCHIATRIC HARMS
What is a Tort?
● A ‘civil wrong’ which can be associated with, inter alia:
○ A breach of any duty of care (negligence)
○ Interference with property (nuisance)
○ The sanction for a tort is usually some form of damages (compensation)
○ A breach of any Doc owed to the claimant which causes harm to any
interest protected by law
○ Components of negligence:
■ A Doc
■ A breach of that duty
■ An interest protected by law
What are the interests protected by law?
● Psychiatric Harms: the protection of one’s mental health
● Vicarious Liability: the liability of employers
● Economic Loss: the protection of one’s financial interest
● Non-standard duties: everything else (limited class)
Psychiatric Injuries: some background and context
● Historically courts have been reluctant to allow claims – often restricted claims to
a certain ‘type’ of claimant
● Courts are less cautious nowadays but still impose additional hurdles upon
claimants in certain situations
Early examples of Psychiatric Harm
● Dulieu v White [1901] 2 KB 669
● Hambrook v Stakes [1925] 1 KB 141
Dulieu v White [1901] 2 KB 669
● Mrs Dulieu was working in a public house.
● White negligently drove a horse-drawn van into the bar where she was serving.
● Mrs Dulieu suffered shock which caused a miscarriage—and sued the defendant.
, 2
● The defendant was held liable for causing nervous shock resulting in miscarriage –
as the claimant reasonably believed herself to be in danger.
Hambrook v Stakes [1925] 1 KB 141
● Mother sees a lorry careering down a hill
● Her children are out of sight (but Mrs. H believe them to be at the bottom of the
hill)
● Collision
● She suffered through fear of injury to her children
● Court rejected Dulieu as applied only to someone who feared for their own safety
Reasons for the Court's caution?
● FLOODGATES – fear of indeterminate liability.
● POTENTIAL FOR FRAUD – people may exaggerate their claims.
● PROBLEMS OF PROOF - difficulties of diagnosis, cost of expert evidence.
● PSYCHIATRIC ILLNESS LESS SERIOUS than personal/physical injury
● THE CLAIMANT IS OFTEN A ‘SECONDARY’ VICTIM.
● A FEAR OF ‘JUDICIAL ACTIVISM’ - Parliament, not the judges, should deal
with this area.
This ‘Judicial Caution’ has resulted in only a number of (decreasing) categories:
● The claimant (CL) is involved in an incident caused by the defendant (CL is a
‘PRIMARY VICTIM’).
● The DEF causes death, injury or 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 (but note, this type of person is no longer recognised as a
distinct legal category…)
● The CL is an INVOLUNTARY PARTICIPANT in an incident.
● The CL suffers STRESS AT WORK.
Primary Victims:
● The must be an event caused by the Defendant
● In which the claimant was involved
● Which causes a recognised psychiatric injury to the claimant – anxiety and stress
will generally not suffice.
, 3
Primary victims: Page v Smith [1995] AC 155
● Mr Page was injured in a car accident of moderate severity caused by Smith’s
negligent driving.
● No physical injury.
● But Mr Page suffered a recurrence of CFS – which had been in remission, and he
became unable to work again.
● Smith liable.
● Page v Smith sets out the template for Primary Victims:
○ The claimant must suffer a recognised psychiatric injury
○ There must be a foreseeable physical injury (note, there is no requirement
that psychiatric harm is foreseen)
○ “Eggshell/Thin Skull Rule” applies in Primary Victim cases: Take your
victim as you find them
● The claimant must suffer a recognized psychiatric injury
● ‘Mere’ depression, anxiety and grief are insufficient.
● Medical conditions such as PTSD will generally suffice
● ‘Severe’ or ‘debilitating’ depression or anxiety can, however, be symptoms of a
recognised psychiatric injury
Primary Victims: The Page Criteria
● The claimant must suffer 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)
● PLEASE AVOID THE TEMPTATION TO DIAGNOSE YOUR CLIENT
● There must be a foreseeable physical injury. Was the claimant in the so-called
‘Zone of Danger’?
● Some examples of ‘the zone of danger’:
○ McFarlane v EE Caledonia [1994] 2 All ER 1
○ Young v. Charles Church (1997) 39 BMLR 146
○ McLoughlin v. Jones and Others [2002] QB 1312
○ Johnston v NEI International Combustion Ltd [2007] UKHL 2007 39
(often known as ‘Rothwell’ or ‘Grieves’)
● The claimant must either be in the zone of danger or reasonably believe
themselves to be:
○ McFarlane v EE Caledonia [1994] 2 All ER 1
○ The claimant could not reasonably believe to be in danger
, 4
○ Young v. Charles Church (1997) 39 BMLR 146
○ Even though claimant did not believe themselves to be imperilled, and
objective view was that he was in danger
● The scope of the zone of danger
○ McLoughlin v. Jones and Others [2002] QB 1312
● Incarceration in prison can create is risk of physical harm
○ Johnston v NEI International Combustion Ltd [2007] UKHL 2007 39
(often known as ‘Rothwell’ or ‘Grieves’)
■ Asbestos case
● Fear of future events does not constitute physical harm
● The ‘Egg Shell Skull’ Rule
○ Remember that in Page v Smith Mr Page suffered a recurrence of
CFS…should Smith be held liable for a pre-existing condition that,
arguably, render Mr Page more susceptible to harm?
○ Yes – one should take one’s victim as you find them.
WEEK 3: PSYCHIATRIC HARM: SECONDARY VICTIMS
Psychiatric Harm: A Recap
● Psychiatric Harm cases generally fall into distinct categories of claimant
● These are Primary Victims and Secondary Victims
● To be a Primary Victim the Page v Smith criteria are applied:
○ A recognized psychiatric injury
○ Foresight of physical injury
○ The ‘Egg-Shell Skull’ Rule applies to Primary Victims
Psychiatric Harm: Secondary Victims
● Some context:
○ 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.
Secondary Victims: What are they and how do they differ from Primary Victims?
● An early example:
LW 201: Tort Law
WEEK 2: PSYCHIATRIC HARMS
What is a Tort?
● A ‘civil wrong’ which can be associated with, inter alia:
○ A breach of any duty of care (negligence)
○ Interference with property (nuisance)
○ The sanction for a tort is usually some form of damages (compensation)
○ A breach of any Doc owed to the claimant which causes harm to any
interest protected by law
○ Components of negligence:
■ A Doc
■ A breach of that duty
■ An interest protected by law
What are the interests protected by law?
● Psychiatric Harms: the protection of one’s mental health
● Vicarious Liability: the liability of employers
● Economic Loss: the protection of one’s financial interest
● Non-standard duties: everything else (limited class)
Psychiatric Injuries: some background and context
● Historically courts have been reluctant to allow claims – often restricted claims to
a certain ‘type’ of claimant
● Courts are less cautious nowadays but still impose additional hurdles upon
claimants in certain situations
Early examples of Psychiatric Harm
● Dulieu v White [1901] 2 KB 669
● Hambrook v Stakes [1925] 1 KB 141
Dulieu v White [1901] 2 KB 669
● Mrs Dulieu was working in a public house.
● White negligently drove a horse-drawn van into the bar where she was serving.
● Mrs Dulieu suffered shock which caused a miscarriage—and sued the defendant.
, 2
● The defendant was held liable for causing nervous shock resulting in miscarriage –
as the claimant reasonably believed herself to be in danger.
Hambrook v Stakes [1925] 1 KB 141
● Mother sees a lorry careering down a hill
● Her children are out of sight (but Mrs. H believe them to be at the bottom of the
hill)
● Collision
● She suffered through fear of injury to her children
● Court rejected Dulieu as applied only to someone who feared for their own safety
Reasons for the Court's caution?
● FLOODGATES – fear of indeterminate liability.
● POTENTIAL FOR FRAUD – people may exaggerate their claims.
● PROBLEMS OF PROOF - difficulties of diagnosis, cost of expert evidence.
● PSYCHIATRIC ILLNESS LESS SERIOUS than personal/physical injury
● THE CLAIMANT IS OFTEN A ‘SECONDARY’ VICTIM.
● A FEAR OF ‘JUDICIAL ACTIVISM’ - Parliament, not the judges, should deal
with this area.
This ‘Judicial Caution’ has resulted in only a number of (decreasing) categories:
● The claimant (CL) is involved in an incident caused by the defendant (CL is a
‘PRIMARY VICTIM’).
● The DEF causes death, injury or 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 (but note, this type of person is no longer recognised as a
distinct legal category…)
● The CL is an INVOLUNTARY PARTICIPANT in an incident.
● The CL suffers STRESS AT WORK.
Primary Victims:
● The must be an event caused by the Defendant
● In which the claimant was involved
● Which causes a recognised psychiatric injury to the claimant – anxiety and stress
will generally not suffice.
, 3
Primary victims: Page v Smith [1995] AC 155
● Mr Page was injured in a car accident of moderate severity caused by Smith’s
negligent driving.
● No physical injury.
● But Mr Page suffered a recurrence of CFS – which had been in remission, and he
became unable to work again.
● Smith liable.
● Page v Smith sets out the template for Primary Victims:
○ The claimant must suffer a recognised psychiatric injury
○ There must be a foreseeable physical injury (note, there is no requirement
that psychiatric harm is foreseen)
○ “Eggshell/Thin Skull Rule” applies in Primary Victim cases: Take your
victim as you find them
● The claimant must suffer a recognized psychiatric injury
● ‘Mere’ depression, anxiety and grief are insufficient.
● Medical conditions such as PTSD will generally suffice
● ‘Severe’ or ‘debilitating’ depression or anxiety can, however, be symptoms of a
recognised psychiatric injury
Primary Victims: The Page Criteria
● The claimant must suffer 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)
● PLEASE AVOID THE TEMPTATION TO DIAGNOSE YOUR CLIENT
● There must be a foreseeable physical injury. Was the claimant in the so-called
‘Zone of Danger’?
● Some examples of ‘the zone of danger’:
○ McFarlane v EE Caledonia [1994] 2 All ER 1
○ Young v. Charles Church (1997) 39 BMLR 146
○ McLoughlin v. Jones and Others [2002] QB 1312
○ Johnston v NEI International Combustion Ltd [2007] UKHL 2007 39
(often known as ‘Rothwell’ or ‘Grieves’)
● The claimant must either be in the zone of danger or reasonably believe
themselves to be:
○ McFarlane v EE Caledonia [1994] 2 All ER 1
○ The claimant could not reasonably believe to be in danger
, 4
○ Young v. Charles Church (1997) 39 BMLR 146
○ Even though claimant did not believe themselves to be imperilled, and
objective view was that he was in danger
● The scope of the zone of danger
○ McLoughlin v. Jones and Others [2002] QB 1312
● Incarceration in prison can create is risk of physical harm
○ Johnston v NEI International Combustion Ltd [2007] UKHL 2007 39
(often known as ‘Rothwell’ or ‘Grieves’)
■ Asbestos case
● Fear of future events does not constitute physical harm
● The ‘Egg Shell Skull’ Rule
○ Remember that in Page v Smith Mr Page suffered a recurrence of
CFS…should Smith be held liable for a pre-existing condition that,
arguably, render Mr Page more susceptible to harm?
○ Yes – one should take one’s victim as you find them.
WEEK 3: PSYCHIATRIC HARM: SECONDARY VICTIMS
Psychiatric Harm: A Recap
● Psychiatric Harm cases generally fall into distinct categories of claimant
● These are Primary Victims and Secondary Victims
● To be a Primary Victim the Page v Smith criteria are applied:
○ A recognized psychiatric injury
○ Foresight of physical injury
○ The ‘Egg-Shell Skull’ Rule applies to Primary Victims
Psychiatric Harm: Secondary Victims
● Some context:
○ 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.
Secondary Victims: What are they and how do they differ from Primary Victims?
● An early example:
