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Psychiatric injury claims
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Most psychiatric injury/illness claims will either arise following an accident (a ‘nervous shock’ claim) or will arise as a consequence of occupational stress.
The most high profile nervous shock claims arose from the Hillsborough disaster in 1989. These were brought by spectators against the police, and by the relatives of some of the victims who had either seen the disaster as it played out on the TV, or were actually at the Sheffield Wednesday football stadium when it took place (Alcock v Chief Constable of South Yorkshire Police  1 AC 310). Yet more claims were made by the police officers on duty on that day, who felt traumatised by what they witnessed (White v Chief Constable of South Yorkshire  2 AC 455 – see below under ‘Psychiatric injury: employees’). These are leading cases in claims for psychiatric injury.
To successfully establish a case for psychiatric injury, there needs to be medical evidence from an expert that attests the Claimant suffered from a recognised psychiatric illness, which is more than temporary grief, fright or emotional distress. Quite a number of different psychiatric illnesses have been recognised over the years, including:
- Pathological grief disorder – Vernon v Bosley  1 All ER 577
- Chronic fatigue syndrome – Page v Smith  AC 155 (see below)
- Post traumatic stress disorder – Alcock v Chief Constable of South Yorkshire Police  1 AC 310
To establish that a Claimant has suffered a recognised psychiatric injury or illness, the medical expert will make reference to two main systems of classification of psychiatric illnesses that are currently in use in the United Kingdom. These are:
- The Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, 4th Edition (DSM IV)
- The World Health Organisation International Classification of Mental and Behavioural Disorders, 10th Edition (ICD-10)
The most common claim for psychiatric illness results from post traumatic stress disorder (PTSD), usually following a life-threatening experience or following exposure to the sudden death of a close relative. Symptoms of PTSD include:
- Flashbacks, panic attacks
- Chest pain, palpitations
- Constipation, diarrhoea
- Nausea, eating disorders
- Extreme fatigue
- Loss of libido
Primary victims and secondary victims
To successfully establish a claim for negligently inflicted psychiatric illness, first the would-be Claimant must fall into one of two categories: primary or secondary victims (as established in Alcock v Chief Constable of South Yorkshire Police  1 AC 310). Although both primary and secondary victims can bring a claim, primary victims tend to fare better in the courts.
These victims must be involved in the events ‘as a participant’. Primary victims have to show that their injury – whether physical or psychiatric – could be reasonably foreseen as a result of the Defendant’s negligence, so as to bring the Claimant within the scope of the Defendant’s duty of care.
Key cases include the following:
In Corr v IBC Vehicles  EWCA Civ 331, the Claimant brought a claim under the Fatal Accidents Act after her husband committed suicide. Her husband had been an employee of the Defendant and during that employment, was seriously injured in an accident at the Defendant’s factory. The husband had suffered from PTSD which led to serious depression, and eventually suicide some six years after the accident. In hearing the case, the Court of Appeal held that the Claimant didn’t need to show that at the time of the accident, her husband’s suicide was reasonably foreseeable, as her husband’s suicide flowed from the psychiatric illness, for which the Defendant was admittedly responsible.
In Page v Smith  AC 155, the House of Lords considered for the first time a case that was brought by a primary victim. In this case, the Claimant’s car collided with the Defendant’s car. The Claimant suffered no physical injury but following the accident, the Claimant alleged that there was a recurrence of chronic fatigue syndrome, something he had suffered some twenty years earlier. The House of Lords held that the Claimant was a participant in the accident and was therefore a primary victim. For that reason it was not required for the Claimant to show that the psychiatric harm he had endured was foreseeable in a person of normal fortitude. It did not matter either that the Claimant had a preexisting condition and could therefore be seen to be predisposed to psychiatric illness. The ‘egg shell skull’ rule applied, which means that the Defendant had to take his victim as he found him.
In Johnstone v NEI International Combustion Limited  UKHL 39, a claim was brought by workers who had been exposed to asbestos negligently by the Defendant, and subsequently developed clinical depression after they were told that they had pleural plaques which was an indication that there was a risk they could fall ill in the future. In fact, the House of Lords rejected their claim. The Claimants had argued that they should be classified as primary victims and therefore ought to be able to recover damages, irrespective of whether psychiatric injury was reasonably foreseeable from the Defendant’s negligence or not. This was rejected because the illness resulted from the fear of the possibility of future illness – this future illness had not actually happened, and was therefore not actionable.
Secondary victims are witnesses to the injuries that were caused to the primary victims. Secondary victims have not suffered a physical injury but have suffered psychologically as a result of the events that they saw or heard. They must demonstrate that it was reasonably foreseeable that a person of reasonable fortitude would have suffered some psychiatric injury. How foreseeable the psychiatric injury is, is the crucial part for secondary victims, as they will usually be outside the scope of persons who may suffer foreseeable physical injury.
As well as the test of reasonable fortitude, Alcock also requires that a secondary victim meets three additional control mechanisms for their claim for damages as a result of psychiatric injury to succeed. These are as follows:
- There must be a close tie of love and affection to the immediate victim.
- There must be closeness in time and space to the incident or its aftermath.
- The Claimant must suffer ‘nervous shock’ through their own unaided senses.
On these three points, aside from Alcock, some additional cases are worth noting:
In Galli-Atkinson v Seghal  EWCA Civ 697 the facts were that the Claimant was present at the scene of a road traffic accident where her daughter had just died. Although told of her daughter’s death, she did not see the body until later in the mortuary. On viewing the body she broke down and suffered from the psychiatric illness that she was claiming for. On appeal, the Court found that the later viewing of the body could be seen as part of the aftermath of the incident, and she was entitled to claim damages. Contrast this with Alcock where several of the claimants were not at the football ground but went there later to identify their relatives’ bodies. The earliest of these claimants arrived 8-9 hours after the accident took place, and the House of Lords held this notto be part of the immediate aftermath.
In Walters v North Glamorgan NHS Trust  EWHC 321 (QB) the facts were that a mother witnesses the decline and death of her baby resulting from misdisagnosis at the hospital where the baby was being treated. The period of time from the onset of the injury to death was 36 hours. The Court accepted that the mother could be a secondary victim if the psychiatric injury was induced by a sudden appreciation by the sight or sound of the horrifying event, or its immediate aftermath. Further, they held that the whole 36 hour ordeal was a horrifying event and the Claimant was therefore entitled to damages.
In Taylor v Novo  EWCA Civ 194, the facts were that the Claimant’s mother suffered a head injury at work, which the Claimant was not witness to. Three weeks after this, the mother died of a pulmonary embolism which the Claimant did witness. The Claimant’s initial claim for damages for psychiatric injury was successful but this was later reversed by the Court of Appeal, who held that there was a lack of physical and temporal connection between the original accident and the unexpected sudden death of the mother, and therefore the claim must fail.
Psychiatric injury: employees
There are a number of noteworthy cases in relation to claims for psychiatric injury by employees:
In Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146, an employee claimed to have suffered psychiatric injury having witnessed a fellow employee electrocuted in close proximity to him. The Court held that he was able to recover damages as a primary victim from his employer, because of the risk that he himself could have been injured. In this case the Court noted that the statutory protection was not limited to physical electrocution but would also protect employees from the types of injury that could be foreseen as likely to happen where the electrical equipment or cabling was permitted to become a source of danger to them. This of course included the mental illness that the Claimant sustained due to the shock of witnessing his colleague being electrocuted, when he himself was lucky enough to escape electrocution.
In Hunter v British Coal  QB 89 CA, the facts of the case were that the Claimant was a driver in a coalmine. The Claimant’s vehicle struck a hydrant, and this caused the hydrant to leak. He and a colleague attempted to stop the leak unsuccessfully, and he then went to find help. He had gone 30 metres when the hydrant burst, and the Claimant was informed someone was injured. Returning to the scene, he was told this was the colleague who had been helping him. Feeling responsible, the Claimant suffered from depression and nervous shock, and brought a claim against his employer. The Court held that a claimant who believed they were the cause of another’s death in an accident that was in fact caused by a defendant’s negligence, was able to recover damages as a primary victim if they had been directly involved in the incident as a participant. However, if the claimant was not at the scene, they would not be able to recover damages as a primary victim just because they felt responsible for what happened. So far as the case in hand was concerned, the Claimant was 30 metres away when the incident occurred and was not informed of his colleague’s death until 15 minutes later, and so it was held that there was insufficient proximity in time and space with the incident. A further point was that the illness suffered by the Claimant was an abnormal reaction to being told of a colleague’s death brought on by a feeling of responsibility that was not rational, and it was not therefore a foreseeable consequence of the Defendant’s breach of care.
Of course, the Hillsborough case of White v Chief Constable of South Yorkshire  2 AC 455 is also a leading case on employees claiming psychiatric injury:
In White, the police officers who were on duty at the time of the Hillsborough tragedy claimed against the police service for psychiatric injury. None of them had been exposed to any physical danger which they accepted, but they argued that the Chief Constable was vicariously liable for the negligence of the police officer that caused the accident, as a consequence of letting the crowds of people into the pens. Their argument was that by negligently creating what was a horrific situation, the Chief Constable was in breach of his duty of care not to expose them to unnecessary risk of injury. This argument was rejected by the House of Lords, who confirmed the position that unless the employee can show a risk of physical injury (and therefore be treated as a primary victim), they would be treated as a secondary victim and subject to the control tests described in Alcock above.
So to be clear, the Alcock control tests will apply to all claims for psychiatric injury where personal injury is not reasonably foreseeable.
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