LLAW1005 LAW OF TORT I SEMESTER 1 2023

4. NEGLIGENCE: PSYCHIATRIC HARM

Dr Shane Chalmers
26 September 2023
Outline of Lecture

 introduction

 brief history

 lines of enquiry
− psychiatric harm of a recognised kind?
− primary victim or secondary victim?
− damage to property as a source of psychiatric harm?
− psychiatric harm from contributing to 3rd party injury/death?
− no physical imperilment?

2
Elements of Negligence

 Recognised harm
− (1) Did P suffer harm of a recognised kind?

 Duty of care and scope of duty

− (2) Did D owe P a duty of care?
− (3) Was the harm suffered by P within the scope of the duty owed by D?

 Breach of duty
− (4) Did D breach their duty of care?

 Causation and remoteness

− (5) Did D’s breach cause the harm suffered by P?
− (6) Was the harm too remote? 3
Introduction

 “psychiatric harm”
− also called “nervous shock”
− a diagnosable illness (eg, Post Traumatic Stress Disorder)
− damage caused by psychiatric means
− includes physical harm caused by nervous shock (miscarriage, heart attack)

 general enquiry
− question: did D owe a duty to take care not to cause P psychiatric harm?
− straightforward scenarios: if P suffers psychiatric harm and physical harm,
then the answer is relatively easy (damages for physical and psychiatric
harm)
− difficult scenarios: if P suffers psychiatric harm in the absence of any other
4
type of harm, then the answer is more difficult
 A Brief History

 reluctance to recognise psychiatric harm

− Dulieu v White [1901] 2 KB 669: “a claim for damages for physical injuries
naturally and directly resulting from nervous shock which is due to the
negligence of another in causing fear of immediate bodily hurt is in principle not
too remote to be recoverable in law” (Kennedy J)
− so “in principle” one could recover, but only if extreme fear for one’s safety
− scepticism about whether psychiatric harm was real; litigation “floodgates” fears
− see also Victorian Railways Commissioner v Coultas (1888) 13 App Cas 222

 gradual expansion of the recognition

− King v Phillips [1953] 1 QB 429: “Every driver can and should foresee that, if he
drives negligently, he may injure somebody in the vicinity in some way or other;
and he must be responsible for all the injuries” (Lord Denning) 5
Lines of Enquiry – Current Position

1. Psychiatric harm of a recognised kind?

2. Primary victim or secondary victim?

3. Damage to property as a source of psychiatric harm?

4. Psychiatric harm from contributing to 3rd party injury/death?

5. No physical imperilment?

6
1. Psychiatric Harm of a Recognised Kind?

 question
− does the claimed harm amount to psychiatric harm of a recognised kind?
− Hinz v Berry [1970] 2 QB 40 (Lord Denning): “No damages are to be given for
the worry”; “damages are, however, recoverable for nervous shock”, that is,
“for any recognisable psychiatric illness”

 cf Ravenscroft v R Transatlantic [1992] 2 All ER 470

− P’s psychiatric harm was of a recognised kind, but the decision followed Alcock,
ie, P’s harm must have been caused by “sudden appreciation by sight or sound
of a horrifying event which violently agitated the mind” (Lord Ackner)
− we return to this “unaided senses” rule below (Slide 13)

7
Lines of Enquiry – Current Position

1. Psychiatric harm of a recognised kind?

2. Primary victim or secondary victim?

3. Damage to property as a source of psychiatric harm?

4. Psychiatric harm from contributing to 3rd party injury/death?

5. No physical imperilment?

8
2. Primary or Secondary Victim?

 question
− is the person harmed a “primary victim” or a “secondary victim”?

 Alcock v Chief Constable South Yorkshire Police [1992] 1 AC 310

− Lord Oliver: “Broadly [the cases]… divide into two categories”
− (1) “those cases in which the injured plaintiff was involved either mediately, or
immediately, as a participant”
− (2) “and those in which the plaintiff was no more than the passive and
unwilling witness of injury caused to others”

9
2. Primary Victims – Definition

 “primary victim”
− Lord Oliver in Alcock: “those cases in which the injured plaintiff was involved
either mediately, or immediately, as a participant”
− those who were “participants” in the event itself (immediately involved)
− those in the “zone of danger” (mediately involved)

 Page v Smith [1996] 1 AC 155

− Lord Lloyd: “There is no justification for regarding physical and psychiatric
injury as different ‘kinds’ of injury. Once it is established that the defendant is
under a duty of care to avoid causing personal injury to [P], it matters not
whether the injury in fact sustained is physical, psychiatric or both.”
− see also Hung Chor Chuen v Pang Koon Wai [2004] HKLRD K12
10
 2. Primary Victims – Delineating “Zone of Danger”

 White v Chief Constable of South Yorkshire [1999] 2 AC 455

− Lord Steyn: “[P must] satisfy the threshold requirement that he objectively
exposed himself to danger or reasonably believed that he was doing so”
− ie, “primary” victims are those who are either (i) actually in danger themselves,
or (ii) reasonably believe themselves to be in danger

 delayed terror?
− cf Rothwell v Chemical & Insulating Co Ltd [2008] 1 AC 281
− Lord Mance: “[in Page there was psychiatric harm] arising as an immediate
consequence of an obvious accident” (unlike in Rothwell where the anxiety
was caused by a lingering terror)
11
 2. Secondary Victims – Relationship to the Victim

 narrow category
− for policy reasons courts have been reluctant to grant damages to bystanders
and others who are not “primary victims”
− Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310

 close bonds of love and affection

− need to prove closeness in each case
− presumption where husband and wife, parent and child (Lords Keith, Ackner);
probably also where fiancé and fiancé (Lord Keith)
− unrelated bystanders? possibly (Lords Keith, Ackner, Oliver recognised
“particularly horrific” event which would shock the nerves of anyone) but doubt
has been cast in Court of Appeal = McFarlane v EE Caledonia
12
 2. Secondary Victims – Relationship to the Event

 “unaided senses” rule

− Alcock: “[P’s condition must have been caused by] sudden appreciation by sight or
sound of a horrifying event which violently agitated the mind” (Ackner)
− Tsang Mei Ying v Lam Pak Chiu [2000] 1 HKLRD 883: “Although she comes within
the proximity of a close relative, there is no suggestion that she had any proximity
to the accident nor is there any suggestion that she was affected other than by
being told of the injury… the mother's disability resultant upon the distress caused
by her son’s death is not sufficiently proximate to the negligence” (Rogers JA)

 “proximity” rule
− must be proximity of time/space between P and event or its immediate aftermath
− McLoughlin v O’Brien [1983] 1 AC 410 (in particular Lord Wilberforce)
− Lee Wah v Lok Wai Wa [2015] HKEC 1323
− see also Taylor v A Novo (UK) Ltd [2014] QB 150 13
Lines of Enquiry – Current Position

1. Psychiatric harm of a recognised kind?

2. Primary victim or secondary victim?

3. Damage to property as a source of psychiatric harm?

4. Psychiatric harm from contributing to 3rd party injury/death?

5. No physical imperilment?

14
3. Damage to Property as Source of Harm?

 a very narrow category

− damage to property would not ordinarily cause recognised psychiatric harm
− however…

 Attia v British Gas [1988] QB 304

− Dillon LJ: “I am not therefore prepared to hold that the fact that the shock
which caused the plaintiff's assumed psychiatric illness was caused by
damage to property must preclude her from recovering damages for
‘nervous shock’.”

15
Lines of Enquiry – Current Position

1. Psychiatric harm of a recognised kind?

2. Primary victim or secondary victim?

3. Damage to property as a source of psychiatric harm?

4. Psychiatric harm from contributing to 3rd party injury/death?

5. No physical imperilment?

16
4. Harm from Contributing to 3rd Party Injury/Death?

 the issue
− if D negligently puts P in a position whereby P unwillingly contributes (or
believes they have contributed) to a third party’s injury or death, P can bring
a claim in negligence

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

17
Lines of Enquiry – Current Position

1. Psychiatric harm of a recognised kind?

2. Primary victim or secondary victim?

3. Damage to property as a source of psychiatric harm?

4. Psychiatric harm from contributing to 3rd party injury/death?

5. No physical imperilment?

18
5. No physical imperilment?

 the issue
− what if D does something directly to P that doesn’t physically imperil P?
− still a duty not to cause psychiatric harm

 AB v Tameside & Glossop HA (1997) 35 BMLR 79

 Barber v Somerset CC [2004] UKHL 13

19