Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of Parallelewelten.
Psychiatric injury was defined as “a sudden assault on the nervous system” or “a sudden appreciation… of a horrifying event, which violently agitates the mind”. Until relatively recently, the tort of negligence relating to claims for psychiatric injury was very uncertain. However, in recent times, this area of law has become slightly more certain with the laying down of various guideline and criteria governing whether an individual can recover damages as a result of witnessing an event which causes them some form of psychiatric injury.
The issue in this question is whether the police officer in White v Chief Constable of South Yorkshire should have been successful in their claim for their psychiatric injuries on the notion that it would incremental development of the law in psychiatric injury.
In White, the claimants were police officer who had suffered psychiatric injury as a result of their professional involvement in the Hillsborough disaster. Five of the six claimants had assisted the injured and had worked to ensure that there was no further to those leaving the stadium. The sixth claimant had been on duty at the temporary mortuary which had been set up near the ground. None of the claimants had been physical danger. The court of appeal held by 2-1 that a duty of care was owed to the officers actually present on the ground (not the one at the mortuary). Previously in Alcock v Chief Constable of South Yorkshire the court had refused to compensate the claimants who claimed for psychiatric injury as in White. This further provoked outrage from the relatives of those killed and injuries in Hillsborough. The House of Lord had overturned the decision of Court of Appeal in the basis that the public would think it unacceptable to compensate police officers at the ground for psychiatric injury sustained simply in the course of doing their jobs, when compensation had been refused to the relatives in Alcock.
The reasons that the House of Lord rejected the police officer’s claim were stated below: First, the House of Lord by the majority of 4-1 held that the claimants were not classified as primary victims. The claimants raised the argument and said that they have a contract between the chief constable, therefore the employers had a duty to safe guard the employees from personal injury. The House of Lord denied the argument. Their lordship held that, the claimants had no better position than normal bystanders to sue in respect of psychiatric injury simply by virtue of their relationship. However the House of Lord did agreed that the employers owe a duty of care to the employees where a burdensome workload that stress related illness is readily foreseeable. In Farley v Skinner, it was held that the claimant would have a contractual claim in respect of distress arising out a breach where the contract was specifically designed to protect the claimant from distress. But for psychiatric injury that was not directly caused by the employers to the employees, the employees will be treated in exactly the same way as any other secondary victims. Therefore although the Hillsborough police officers witnessed the disaster in a very close range, but they lacked the proximity of relationship, which mean that they do not have a close tie and affection with the victims which make them able to sue the chief constable.
The claimants give another arguments claiming that they were owed a duty of care in their capacity as rescuers. House of Lord rejected this as well and insisted that in relation to psychiatric harm rescuers must meet the same conditions as any other witnesses of injury to third parties. The claimants have to expose themselves to danger or reasonably believed themselves to have done so. They must also meet the requirement for secondary victims.
The issue that rescuers should get compensate is still remain uncertain. In the case of Haynes v Harwood, it was held that a rescuer can claim for physical injuries that he suffers. Facts: the claimant was a police officer who work in a busy street. A boy threw a stone to the defendant’s unattended horses and caused them to blot. The claimant stop the horses and sustained injury. The question, then arises is whether the principle in Haynes can be apply to psychiatric injury as well. This principle in Haynes was adapted in the case of Chadwick v British Transport Commission. Mr Chadwick was a volunteer who wanted to help the victims of a train crush 200 yards from his house. Mr Chadwick, by request of a doctor when into the wrecked carriage to give injection to a women. He saw a “sea of body” and people had been screaming in pain and fear. Before the incident, Mr Chadwick had been a cheerful and active member of the local community and now he developed severe anxiety and neurosis. The court held that the defendants were liable to Mr Chadwick. Before White, it was widely thought that the decision in Chadwick meant that rescuers were to be given special treatment for the purpose of psychiatric injury claims. The court of appeal in White agreed this but the House of Lord overturned the decision by a bare majority of 3-2. Lord Goff and Lord Griffiths thought that rescuers were to special treatment, the majority held that rescuers must either satisfy the “narrow” definition of primary victim (i.e. by being in physical danger) or must bring their claims as secondary victims and satisfy Alcock.
Lord Hoffman gave two reasons why the law should not give special treatment to rescuers unless they had been placed in physical danger. The first was that, if the control mechanism of physical danger were removed, it would become difficult to define the concept of a rescuer — would the term then apply to a bystander who had rendered only some trivial assistance? The second (and in his Lordship’s view more important) reason was that removing the control mechanism of physical danger would produce a result in White that would be unacceptable, in the sense that it would offend against the ordinary person: “… public would think it wrong that policemen , even as part of a general class of persons who rendered assistance, should have the right to compensation for psychiatric injury out of the public funds while the bereaved relatives are sent away with nothing”.
Lord Griffiths disagreed on both points believing that the definition problem could be determined on the facts of each case; further that the public would not find it offensive, in his view, if those who suffer psychiatric injury while rescuing others receive compensation. He was of the opinion that: “ If the rescuer is in no physical danger it will only be in exceptional cases that personal injury in the form of psychiatric injury will be foreseeable for the law must take us to be sufficiently robust to give help at accidents that are a daily occurrence without suffering a psychiatric breakdown. But where the accident is of a particularly horrifying kind and the rescuer is involved with the victims in the immediate aftermath it may be reasonably foreseeable that the rescuer will suffer psychiatric injury……”. The decision of the majority of the House of Lords in White has effectively closed the door on future claims by rescuers who have not been placed in physical danger. In the case of Greatorex v Greatorex the court held that the fireman father, although he is a rescuer, could not succeed as primary victims because he was not in physical danger.
It is very important to understand the dilemma that this decision causes. One side is that if the duty is extended then out to which extend are the courts willing to extend it? Will it open the flood gates? Next is, will it cause other classes of claimants to lose its respect for the judicial system, a system which favours one class over another.
The historical developments of nervous shock are slow to take form and this is shown in the case, heard in the Privy Council, of Victorian Railway Commissioners v Coultas. In this case, a railway crossing gate keeper negligently allowed a carriage to cross over the tracks and, train was due to pass. The plaintiff, who was pregnant, was travelling in the carriage and, thinking she would be killed by the train, suffered severe shock and miscarried her baby. The Privy Council decided that there was no liability for psychiatric injury without a physical injury. The reasons given for this were the relative unknown working of the mind and the thought that any leaning towards favouring a claim as such may lead to a lot of falsified claims.
By the early of twentieth century, the courts began to award damages for what was for many years called nervous shock. A claimant who becomes mentally ill because of the shock to his nervous system caused by an incident that either threatened his own safety or involved witnessing exceptionally distressing injuries to others could in certain circumstances recover compensation for psychiatric injury. In the case of Dulieu v White and Sons in which a pregnant barmaid, working behind the bar in a pub, suffered nervous shock when a run away horse and carriage crashed through the front of the pub and stopped a short distance from where she was standing. She subsequently miscarried her child. Kennedy J uphold her claim, citing the case of Wilkinson v Downton. His lordship did not hold with the thought that the possible increase in fraudulent claims, as mentioned in the Victorian Railway case, was a good enough reason to deny a legitimate claim, stating: “such a course involves the denial of redress in meritorious cases, and it necessarily implies a certain degree of distrust, which i do not share, in the capacity of legal tribunals to get at the truth in this class of claim”. The desire of the courts to exercise control over the scope of liability led to what is known as the ‘ impact theory’, allowing a plaintiff to claim for damages arising out of psychiatric illness under the proviso that this damage was caused by a reasonable fear of injury caused by the defendants negligence.
As time wore on, the courts are more willing to allowing claim for psychiatric injury with certain limits, especially for secondary victims. Secondary victims are those who may not de directly involved in the original accident, and be at no personal risk of physical injury, but nonetheless witness injury to others and suffer psychiatric harm in consequence. To recover damages, a secondary victim must generally establish a close tie of love or affection with the primary victim (only for certain person such as spouses, parents and children) and proximity in time and place to the accident. In Hambrook v Stokes Bros, a pregnant mother, accompanying her children to school, suffered a miscarriage and died of complications arising from that because she feared her children had been killed by an out of control lorry. A majority of the court of appeal held her claim. Generally in order to have a success claim in nervous shock for secondary victim, it required that the claimant should present at the scene of, or very close to the accident. However, even if the claimant is not actually present, where thet come across the ‘immediate aftermath’ of the accident the mechanism will be satisfied. In the case of McLoughlin v O’ Brian, the claimant’s husband and children were involved in a car accident. All the family members are seriously injured and one of them almost die immediately. The claimants went to hospital an hour later. The House of Lord held that in coming upon the ‘immediate aftermath’ of the accident in which her family had been so grievously injured, she was well within the scope of duty to avoid nervous shock. Witnessing the aftermath, they said, was equivalent to witnessing the incident itself since nothing in the horror of the sight that met her had changed. Lord Wilberforce, indentified three factors, or control mechanisms as stated above that needed consideration in each and every case. These control mechanisms are limiting in the respect that it can be very difficult for a plaintiff to prove closeness in love or affection. The range of people who could claim could be possible stretch from the closest of family to an ordinary bystander. A bystander would less likely to succeed in recovery though owing to a point made by Lord Wilberforce. He noted that the law always denied recovery to “mere bystanders” and the justification for this was twofold; either “such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life” or “defendants cannot be expected to compensate the world at large”. It is this point that, i feel, is unfair for the following reasons. The bond of love and affection is purely emotional and unquantifiable. How does the court measure the degree to which one person love another?
For claimant who is a primary victim, the law would be more generous to award damages compare to secondary victims. In the case of Page v Smith, the claimant was involved in a collision with a car driven by the defendant. He suffered no physical injury but he suffered chronic fatigue syndrome and unable to work. The defendant argued that, as the claimant does not suffered physical injury, he was no liable for injury through shock. The House of Lords found for the claimant. In case involving ‘nervous shock’, they said, a clear distinction must be made between primary and secondary victims. For the latter one, certain control mechanisms limit the potential liability for psychiatric harm. Shock in a person of normal fortitude must be foreseeable. But Mr Page was a primary victim of the defendant negligence act. It was readily foreseeable that he would be exposed to personal injury, and physical and psychiatric harm were not to be regarded as different kinds of damage. Once physical injury to a primary victim is foreseeable, he can recovery both physical and psychiatric harm arose.
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