2.3.2 Psychiatric Illness Lecture

How does Tort Treat Psychiatric Illness?

Claims in tort for negligently caused psychiatric illness have their own set of rules. Psychological ramifications may be further reaching than physical ones. Some restrictions need to be put in place in order to have a practically viable system for compensating psychiatric harm caused by negligence.

Restrictions can be separated into two camps: Restrictions on the nature of the psychiatric harm that can be claimed for; and certain restrictions on the elements of negligence involved in establishing a breach (duty, breach, causation, remoteness).

General Rule One: Psychiatric Injuries Must Be Medically Recognised:

Not all psychiatric harms are recognised by the law equally. It must be a medically recognised condition. Some conditions that have been recognised as such are:

Generally, sadness, grief or general distress are not actionable, unless they are so bad that they cause a recognisable psychiatric illness (Hinz v Berry [1970]; Rothwell v Chemical and Insulating Co [2007]).

General Rule Two: Psychiatric Injuries Must Be Caused by a Sudden Event:

The psychological ‘injury’ must be caused by a sudden event. ‘Slow burn’ illnesses are unlikely to be actionable (Alcock v Chief Constable of South Yorkshire [1992]). This does not mean that the injury must be ‘immediate’ (Walters v North Glamorgan NHS Trust [2002]).

Duty of Care and Psychiatric Harm:

A duty of care must be established between the defendant and the claimant. This is based on three elements: foreseeability; proximity; and the nature of ‘shock’ (Alcock).

A distinction is drawn between primary victims (or those involved in the accident) and secondary victims (those who witness the incident). Foreseeability of only physical injury to primary victims will allow psychiatric injury to be sufficiently foreseeable to be actionable (Page v Smith [1996]).

There are two specific groups that were primarily classified as primary victims:

  1. Rescuers who attend the scene of the accident (Alcock). Now only those that are either objectively exposed to danger, or hold a reasonable belief that they are so can claim (White and Others v Chief Constable of the South Yorkshire Police [1999]).
  2. People who believe themselves to have caused the death or injury of another (Dooley v Cammell Laird [1971]; Hunter v British Coal). Now these victims are regarded as secondary.

Secondary victims may only claim if they satisfy a number of criteria.

  • There must be a close emotional link between the traumatic event and the claimant’s psychiatric injury, or that they be closely related in some way to a primary victim (Alcock).
  • The victim must be close in terms of ‘spatial and temporal proximity’ to the incident (McLoughlin v O’Brian [1983]).
  • They must hear or see the immediate aftermath of the instigating event (Alcock).

Other Legal Principles:

It must be reasonably foreseeable that (specifically) psychiatric injury might occur. However, the claimant’s particular psychiatric injury does not need to be foreseeable (the ‘egg-shell skull’ rule, Brice v Brown [1984]).

Secondary victims cannot recover where the primary victim is also the defendant (Greatorex v Greatorex [2004]). However, witnessing damage to property may be enough to establish a case for psychiatric injury (Attia v British Gas [1988]). Negligently presenting shocking news t someone may also cause actionable harm (Allin v City and Hackney Health Authority [1996]).

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