Personal Injury: Nervous Shock/psychiatric Injury

Front 1

McLoughlin v O'Brian [1983]

Back 1

Decided after Anns v Merton London Borough Council [1978]: decision now to be mitigated by Caparo Industries plc v Dickman [1990].

Parent-child and spousal relationships satisfy the closeness of relationship required to satisfy the Alcock test.

There must be proximity in time and space. Here, two hours was deemed proximate enough. This criterion also encompasses the idea that the claimant must have perceived the events with their own unaided senses and that their psychiatric condition arose as a direct reaction to this. This extends to witnessing the immediate aftermath.

Example of Secondary Victim: the claimant was informed that there had been an accident involving her family. She then went to the casualty department of the hospital where she saw members of her family in a distressed and injured state. The claimant suffered nervous shock. The House of Lords held that she was entitled to recover. The majority of the judges thought that it would be wrong to use the basic test of foresight of harm and that additional policy limitations would need to be introduced. However, they were happy to extend the liability of those who witnessed the immediate aftermath of an event and made various statements suggesting that further expansion was possible.

Front 2

Alcock v Chief Constable of South Yorkshire Police

Back 2

Difference between primary victim and secondary victim established.

Primary victim - someone who suffers nervous shock as a result of reasonable fear for their own physical safety. They do not have to actually suffer physical injury. To determine if primary victim, objective test as to whether they were in reasonable fear for their own physical injury (i.e. involved in the traumatic event in question.) Once determined, apply Caparo.

Secondary victim - suffers nervous shock due to fear for someone else' safety, normally a close relative. Do not need to fear for their own physical safety. Witnesses the traumatic event in question, and suffers nervous shock as a result, but is not involved in said event.

Established test for establishing duty of care for secondary victims:

1. whether the claimant has suffered a recognised psychiatric illness;

2. foreseeability of the psychiatric damage;

3. the relationship between the claimant and 'the victim';

4. proximity in time and space; and

5. manner of perception.

And the court will always take into account whether it is fair, just and reasonable for a duty to be imposed.

There must be proximity in time and space. Here, nine hours was NOT deemed proximate enough. This criterion also encompasses the idea that the claimant must have perceived the events with their own unaided senses and that their psychiatric condition arose as a direct reaction to this. TV is not enough here.

Here, claimants were secondary victims. Some of the claimants were at the football ground at the time of the disaster, but none were in danger or reasonably feared for their own safety. They suffered nervous shock as a result of witnessing their relatives/friends in danger. Other claimants were not at the grounds at the time but suffered nervous shock after finding out about the disaster and rushing to the ground and, in some cases, having to identify the dead bodies of their relatives.

Closeness will be identified on the facts - but generally, a fiancee, parents and spouses will be sufficiently close, but grandparents, uncles, aunts and siblings will not.

Front 3

Dulieu v White [1901]

Back 3

Example of primary victim: claimant was a pregnant barmaid. The defendant negligently crashed his coach and horses through a wall in her pub. She suffered nervous shock (and later a miscarriage) because she reasonably feared that she would be harmed in the collision. She was entitled to recover as a primary victim.

Front 4

Chadwick

Back 4

If a rescuer or a bystander (or anyone else for that matter) suffers nervous shock as a result of fearing for his own safety then he will be a primary victim.

Here, the claimant succeeded in his claim for nervous shock as a result of helping to rescue victims from a horrific rail crash. It has been observed that the claimant in this case was actually a primary victim.

Front 5

Wigg v British Railways Board (1986)

Back 5

If a rescuer or a bystander (or anyone else for that matter) suffers nervous shock as a result of fearing for his own safety then he will be a primary victim.

A train driver who tried to rescue someone trapped under a train recovered compensation. This is because he was himself in danger and suffered the nervous shock as a result of fearing for his own safety.

Front 6

White v Chief Constable of the South Yorkshire Police [1999]

Back 6

Here, the claimants were police officers on duty during the Hillsborough football stadium disaster. They had assisted in removing the dead bodies and carrying the injured to safety as well as trying to resuscitate spectators. Their action was for PTSD as a result of these experiences. They claimed both as employees and as professional rescuers. The House of Lords dismissed their appeal. Their status as employees did not automatically convert the claimants from secondary victims to primary victims. The ordinary criteria of nervous shock from Alcock applied. Their argument as to being professional rescuers also failed in that they had not actually been exposed to danger themselves.

Front 7

Cullin v London Fire & Civil Defence Authority [1999]

Back 7

Here the claimant was a fire fighter who suffered psychiatric injury after witnessing two colleagues trapped inside a burning building. His attempt at rescuing them had failed. Despite the defendant's contention that this case mirrored White, the court disagreed. In Cullin, it could be argued that the claimant in his rescue attempt was either exposed to the danger or reasonably believed he could be subjected to physical injury. As such he was a primary victim.

Front 8

McFarlane v EE Caledonia Ltd [1994]

Back 8

Bystanders' position considered: claimants should possess the 'customary phlegm' of the reasonable man - so usually strangers will not be able to claim as secondary victims - even if the events are horrific (such as here.)

In this case, the Court of Appeal considered the liability for nervous shock suffered by the claimant after an oil rig disaster. During the disaster, the claimant was aboard a vessel which remained in the area collecting other survivors. The court rejected the claimant's claim as a primary victim for nervous shock, because they did not feel that the claimant was in fact in reasonable fear for his physical safety at the time. The test was objective, not subjective.

Front 9

Reilly v Merseyside HA [1995]

Back 9

Nervous shock must be a medically recognised form of psychiatric illness.

Here, the court refused to compensate a couple trapped in a lift for over an hour for what the court considered to be only normal human emotion following an unpleasant experience.

Front 10

Psychiatric Damage

Back 10

To define it, reference is made to both the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association and the Glossary of Mental Disorders in the International Classification of Diseases

Front 11

Hinz v Berry [1970]

Back 11

Depression is form of Nervous Shock

Front 12

Bourhill v Young [1943]

Back 12

A physical illness, sustained after the event in question and resulting from nervous shock may also form the subject of a claim. It must however be first recognised that the psychiatric condition giving rise to the physical symptoms was a recognised psychiatric condition and that both the psychiatric and physical injuries are 'material'.

Here, it was a miscarriage - but it can also be a heart attack.

In this case, the defendant was a motorcyclist who crashed and killed himself by his own negligence. The claimant, who was pregnant, did not see the crash but heard it and later saw some blood on the road. She suffered nervous shock as a result and subsequently miscarried her child. It was held that no duty of care was owed to the claimant. Whilst it was foreseeable that the defendant might physically harm other road users with his negligent driving, it was not foreseeable that someone in the claimant's position would suffer nervous shock.

Front 13

Re GB, RB, and RP (1997)

Back 13

PTSD is Nervous Shock.

Front 14

Vernon v Bosley (no 1) [1997]

Back 14

Grief or bereavement may also be classified a can be a form of Nervous Shock - if it goes beyond the normal human emotion (such as pathological grief syndrome.)

Front 15

Hambrook v Stokes Bros [1925]

Back 15

Parent child or spousal relationships are sufficient to satisfy the Alcock requirement of closeness between claimant and victim.

Here, a mother suffered nervous shock after witnessing a runaway lorry heading down a hill towards her children.

Front 16

Greatorex v Greatorex [2000]

Back 16

Where the actual victim for whose safety the secondary victim feared was the defendant himself, the secondary victim's claim will fail.

Here, the defendant did not owe a duty of care to the claimant fire officer (his father) who arrived at the scene and subsequently suffered psychiatric damage on seeing injuries to his son.

Front 17

Taylor v A Novo Ltd [2013]

Back 17

There must be proximity in time and space.

The claimant's mother was injured at work due to the negligence of the defendant employer, and was making a good recovery when she unexpectedly collapsed and died at home three weeks after the accident. The claimant witnessed her mother's death but not the initial accident. This did not satisfy the requirement of witnessing the accident or its immediate aftermath.

Front 18

W v Essex County Council [2000]

Back 18

There must be proximity in time and space.

In this case, the claimants against the claimed against the defendant council for placing with them for foster care a 15-year-old boy who had a history of perpetrating sexual abuse. They alleged that they suffered psychiatric injury when they learned, some four weeks later that the boy had sexually abused their children. The defendants argued that the parents did not have proximity in time or space to the acts of the abuse as they had not witnessed any of the events. In considering the Alcock criteria, Lord Slynn recognised the need for flexibility when dealing with new situations which were not covered by existing precedent. The House of Lords refused to strike out the claim, holding that the claimants had an arguable case.

Front 19

North Glamorgan NHS Trust v Walters [2002]

Back 19

Impact needs to be sudden:

The claimant suffered psychiatric illness after negligent medical treatment led to the death of her 10 month-old baby. The Court of Appeal held that although the events leading to the claimant's psychiatric condition took place over 36 hours, the series of events leading to the death could together constitute a 'horrifying event', including witnessing the medical negligence. They also confirmed the trial judge's ruling that the claimant's appreciation of events was 'sudden' because each separate event had an immediate impact.

Front 20

Sion v Hampstead HA (1994)

Back 20

Impact needs to be sudden:

The claimant failed in a similar case to North Glamorgan NHS Trust v Walters because the psychiatric damage took place over a longer period and gradually came to the realisation that medical negligence had caused the injuries. Unlike in Glamorgan this was not a sudden reaction to a horrifying event. "A psychiatric illness caused not by a sudden shock but by an accumulation of more gradual assaults on the nervous system over a period of time is not enough."

Front 21

Rabone v Pennine Care NHS Foundation Trust [2012]

Back 21

The claim here was brought by the parents of a girl who committed suicide. She had been admitted to hospital following a suicide attempt and, despite her parents' concern that her condition was not improving, the hospital allowed her two days' home leave during which she committed suicide. Her parents brought an action in their own right for breach of Article 2 ECHR (right to life) which imposes a duty on a public authority towards a person under their control to protect them from a real and immediate risk to life.

Although the victim was a voluntary patient she was extremely vulnerable, the hospital had assumed responsibility of her, and could and should have stopped her leaving. The court found that there was a real risk which increased over the two days' home leave, which was sufficient to make it an immediate risk. The hospital knew/should have known of this risk, and no reasonably psychiatric doctor would have let her go. The parents were therefore successful in their action and were awarded £5000 damages each.

This provides an avenue for recovery for relatives unable to satisfy the Alcock criteria for duty of care in negligence, but it is of limited scope since the action can only be brought against the State, the State must have had sufficient control over the victim, and there must have been a real and immediate risk to life of which the defendant knew or ought to have known.