Psychiatric Injury Claims in Tort Law

After witnessing a tragic accident, it is possible to experience an extreme and traumatic response that can have a long-term impact upon the life of an individual. The psychological illness obtained from such an incident is commonly called psychiatric injury, or previously known to the courts as ‘nervous shock’.[1] Nervous shock can appear in the form of depression, PTSD, chronic pain syndrome or panic disorder etc.[2] However it can also be the physical reaction to the shock as seen in Bourhill v Young (1945).[3] Psychiatric injury is a newly developed, incremental extension of the law and therefore has to be addressed separately. Claims prior to the 20^th century held little weight as they lacked proof that an individual was genuinely suffering from shock. However, due to recent medical developments it is far easier to assess someone’s mental state.[4] Further issues had arisen in the early development of this area of law as it allows the opening of the ‘floodgates’. Because of this, it was necessary to put in place a set of ‘guidelines’ that identified who is eligible for compensation and who is not. Applying this information, this essay is designed to advise the parties affected by the negligence of the track inspection and repair company and show the strengths and limitations to the tort of nervous shock.

When assessing whether a person is eligible to claim for psychiatric injury, it is crucial to identify whether they are a primary or a secondary victim. Page v Smith (1995) [5] is used to recognise primary victims. Here, the plaintiff was involved in a car accident that caused them little physical damage but consequently led them to relapse from myalgic encephalomyelitis. Lord Keith and Lord Jauncey held that personal harm was “reasonably foreseeable” [6] in this case, regardless of whether the harm was physical or psychological. Hedley describes this foreseeability as the “zone of danger”, the extent of which is decided by the courts.[7] As a result, individuals who are directly involved in an accident and subsequently injured – be it physically or psychologically – are classed as primary victims and therefore are easily able to claim.

The issue arises when seeking compensation for secondary victims. These types of victims are not directly involved in the accident but are affected by it.[8] As stated previously, in order to avoid ‘floodgates’, secondary victims have to meet the criteria set out in the Hillsborough litigation Alcock v Chief Constable of South Yorkshire (1991)[9] in order to identify whether they were owed a duty of care. Initially, Jones v Wright (1991)[10] assessed claimants on a two-part basis: “First, the necessary degree of relationship between the claimant and the person in danger. Second, the question of geographical proximity to the event.” However, this only included a parent – child relationship, meaning many cases were rejected. It also failed to include people who witnessed the direct aftermath of the event, deeming only the people present in or outside the stadium within “geographical proximity.” This was replaced by Alcock where secondary claimants had to prove reasonable foreseeability, in alignment with Lord Wilberforce’s statement in McLoughlin v O’Brian (1983)[11], and have a medically evidenced psychiatric injury. They further had to have sufficient “proximity and time” to the incident[12] and have a ‘close relationship’ to the injured.[13] All four requirements have to be proven in order to make a claim. This was more effective in finding justice for the victims as it widened the boundaries. The journal of Personal Injury Litigation in their commentary on Page v Smith (1996), described such restrictions upon secondary victims being “…solely as a floodgates mechanism.”[14] However, could be seen as harsh as many people who were affected by the events of the Hillsborough failed on at least one element of the test.

Catalina is a primary victim as she was directly present at the crash and therefore exposed to the risk of physical injury. On the grounds of Page v Smith (1996),[15] it is reasonably foreseeable that due to the negligent maintenance of the track, the train would crash and harm those waiting at the platform. As Catalina was on the platform at the time of the accident, it would be reasonably foreseeable for her to protect herself – in this instance in the form of diving for protection, thus showing that she is owed a duty of care. The action of “diving” shows that Catalina feared for her own safety. In this way, the case of Dulieu v White (1901)[16] shows us that a person is eligible for damages if they are worried about the impact the accident may have on them. In White (1901), Justice Kennedy stated that “The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself.”[17] Applying this to Catalina, the train crashing into the platform would cause fear of ‘immediate personal injury’ and therefore the depression obtained from such an event would be sufficient enough injury to claim.

Darnell may be considered a secondary victim and therefore would have to comply with the regulations set in Alcock in order to be successful in his claim. Comparing Darnell to the claimant in Dooley v Cammell Laird (1951),[18] Darnell may be successful as he feared for his wife’s safety; similar to the claimant’s fear for their co-worker’s safety in Cammel Laird (1951). Darnell also has a “close relationship”[19] to the injured which may be sufficient enough to claim in particularly horrific accidents according to Lords Ackner, Keith and Oliver.[20]

Despite this, however, Darnell lacks “proximity and time” which is imperative when claiming as a secondary victim according to the requirements of Alcock. Due to the fact that Darnell merely witnessed the accident on the television, it is likely that he would fail in a claim as he was not physically present at the incident, nor did he turn up afterwards and experience the impact. Persons affected by the Hillsborough disaster but not present at the match were considered “…not in proximity to the events and would not have suffered shock in the sense of a sudden assault on the nervous system.”[21] Furthermore, television companies are not allowed to broadcast accidents where individuals can be identified as this would be classed ‘novus actus interveniens.’[22] Darnell would not have watched his wife directly suffer on television thus not witnessing the event with his own senses. As a result, Darnell would not able to claim for damages with respect to psychiatric injury. This may be seen as harsh as Darnell nevertheless feared for his wife knowing she was on the train at the time of the crash. It could further be argued that Darnell experienced the accident with his eyes and ears, regardless of whether this was through the television.

Joy might make a claim as it could be argued that she fits the requirements of Alcock with the ‘close relationship’ of being the mother of a victim. Joy also may have the required proximity and time as, although she was not at the stadium during the incident, she witnessed her daughter’s corpse only four hours after. McLoughlin v O’Brian (1983) added another incremental extension to the law whereby one could still witness an event with their own senses ‘two hours’ afterwards.[23] Unlike Darnell, Joy witnessed what could be deemed the ‘immediate’ aftermath with her own senses and not through a third party, meaning she may have grounds to claim. This is similar to Galli-Atkinson v Seghal (2003) where the immediate aftermath was “…extended from the moment of the accident until the claimant left the mortuary.” [24] This was because there was a continued chain of events that could be likened to Joy’s experience as there was little time from when she was told about the accident to when she saw her daughter’s body. In the case commentary of McLoughlin, M Owen notes that “…the mother’s motivation in going to the hospital was similar to that of a rescuer.”[25] In this way, it may be reasonably foreseeable that Joy would have attended the mortuary after the incident and therefore it should be irrelevant how long it took her to get there.

In contrast, however, it is probable that Joy would fail in her claim as the courts take a firm approach to the amount of time after an accident that can be classed as the immediate aftermath. According to Lord Ackner in McLoughlin (1983) and Lord Keith in Alcock (1991), the immediate aftermath only extends to two hours, anything thereafter is no longer immediate. Taking this into account, arriving four hours after the event would not be sufficient enough to claim. This is supported by Berisha v Stone Superstore (2014)[26] where it was not acceptable to appear five hours after an incident. This is another successful strategy of the courts to avoid the ‘floodgates’ and fraudulent claims. However, this is criticised as Joy fulfils the requirement of a ‘close relationship’ and experienced the aftermath with her senses, whether this be immediately after or not.

Randy may be able to claim as a rescuer, which is a secondary victim that experiences shock from assisting primary victims in an accident. Here, Randy may be seen as ‘rescuing’ by handing out bottles of water and blankets. The courts take the view that it is within public policy to support such conduct and therefore rescuers may be more likely to succeed in their claims.[27] It is also reasonably foreseeable that someone would attempt to provide aid to people suffering as seen in Chadwick v British Railways Board (1967) because “danger invites rescue.”[28] However it is argued that volunteering to help others affected by an accident should not allow for compensation because the rescuer has to objectively expose themselves to danger and therefore should accept the consequences of this. Randy may also fit the ‘proximity’ requirement set in Alcock as he appeared at the scene only “a few minutes after the crash” and therefore would have experienced the direct aftermath of the incident, unlike Joy who arrived four hours after.

Regardless of this, it is likely that Randy would not be able to claim as a rescuer as he only handed out “bottles of water and blankets.” This was not seen as sufficient enough in McFarlane v Wilkinson (1997)[29] whereby the claimant suffered nervous shock after handing out blankets to those affected by an exploded oil rig. The courts found that rescuing requires a more active role and that merely handing out blankets did not constitute as rescuing. Applying this, as Randy did little to assist the injured, it is likely that he would not be able to claim. If Randy had pulled people out of the wreck, risking his own safety, then the courts might have reconsidered. Tilley observes that there should be a distinction between those that are “actively helpful” and others being “ghoulishly curious.”[30] Randy could have witnessed the commotion while driving past and been inquisitive, but being dragged to help as a result. This would not make him eligible to claim.  

Finally, it is likely that Crashback Ltd would not be able to claim for damages of psychiatric injury as no one was hurt with regards to the café. However, it is reasonably foreseeable that if a train crashes into a platform, it will hit the café located at said platform. We can glean from the case of Spartan Steel & Alloys Ltd v Martin & Co Ltd (1973)[31] that the café should be entitled to damages, including payment of staff during the rebuild and loss of goods, caused by the negligence of ‘The Rocket’.

In conclusion, it is obvious that the law regarding psychiatric injury is very strict and often harsh for secondary victims. This is seen in the scenario as only Catalina would be eligible to claim as a primary victim. However, due to the requirements of Alcock, Darnell has the relationship to the victim but was not present in time and space and Randy’s attempt at rescuing would not be accepted by the courts. Although the failure of both of these claims seem harsh, Joy’s claim appears particularly unfair as she fulfilled all of the requirements of Alcock except proximity, which she missed by a mere two hours. However, this is obviously an effective way of avoiding the opening of the floodgates.

Bibliography

Books:

J Cooke, Law of Tort (13^th Edn. Pearson Education Limited 2017)

C Elliot and F Quinn, Tort Law (8^th Edn. Pearson Education Limited 2011)

Law Reports:

Case Comment “Test of Foreseeability – primary victim – damage of same kind” Journal of Personal Injury Litigation (1995) 155 – 158

S Hedley “Nervous Shock: Wider Still and Wider?” The Cambridge Law Journal (1997)254 – 257

M Owen “Negligence – Nervous shock” The Cambridge Law Journal (1983) 41-43

J Tilley “The Risk of Shocking the Rescuer” Cambridge Law Journal (1967) 157-160

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[1] C Elliot and F Quinn, Tort Law (8^th Edn. Pearson Education Limited 2011)38

[2] J Cooke, Law of Tort (13^th Edn. Pearson Education Limited 2017)68-69

[3] Bourhill v Young [1945] AC 92

[4] Ibid 68

[5] Page v Smith [1996] AC 155, [1995] 2 All ER 736

[6] Ibid

[7] S Hedley “Nervous Shock: Wider Still and Wider?” The Cambridge Law Journal (1997)254

[8] Cooke (n 2) 71

[9] Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907

[10] Jones v Wright [1991] 2 WLR 814 (QBD); [1991] 3 All ER 88 (CA)

[11] McLoughlin v O’Brian [1983] AC 410

[12] Elliot and Quinn (n 1) 43

[13] Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907

[14] Case Comment “Test of Foreseeability – primary victim – damage of same kind” Journal of Personal Injury Litigation (1995) 155 – 158

[15] Page v Smith [1996] AC 155, [1995] 2 All ER 736

[16] Dulieu v White [1901] 2 KB 669

[17] Justice Kennedy: Dulieu v White [1901] 2 KB 669

[18] Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271

[19] Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907

[20] Cooke (n 2) 80

[21] Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907

[22] Cooke (n 2) 81

[23] McLoughlin v O’Brian [1983] AC 410

[24] Galli-Atkinson v Seghal [2003] EWCA Civ 697

[25]  M Owen “Negligence – Nervous shock” The Cambridge Law Journal (1983) 42

[26] Berisha v Stone Superstore [2014] LTL

[27] Elliot & Quinn (n 1) 46

[28] Chadwick v British Railways Board [1967] 1 WLR 912

[29] McFarlane v Wilkinson (1997) 2 Lloyd’s Rep 259

[30] J Tilley “The Risk of Shocking the Rescuer” Cambridge Law Journal (1967) 159

[31] Spartan Steel & Alloys Ltd v Martin & Co Ltd [1973] QB 27