Psychiatric Harm

teachlawhub
2 days ago
8 min read

Psychiatric Harm in Negligence

Psychiatric harm is an area of negligence that can be difficult to understand because the courts treat different types of claimants in different ways. In some situations, a person may claim as they have suffered psychiatric harm because of the defendant’s negligence, even if they have not suffered a physical injury.

However, not every emotional reaction will result in a successful claim. The law places limits upon who can claim for psychiatric harm, in some circumstances the courts will decide that the defendant is liable as they owe a duty of care for the psychiatric harm caused as a result of their negligence.

What is Psychiatric Harm?

Psychiatric harm is a recognised medical condition that is caused by sudden shock due to the defendant’s negligence, this is sometimes called nervous shock. To be able to claim, a claimant must have suffered an actual recognised psychiatric illness. Feelings such as grief, distress, fear or sadness on their own are not enough.

This can be seen in Hinz v Berry (1970). Mrs Hinz was present when her husband and children were involved in a road accident caused by the defendant. Her husband was killed and some of her children were injured. Mrs Hinz witnessed the entire event, the aftermath and this caused her significant and long term emotional suffering. She successfully claimed and received damages. This case established that ordinary emotions such as grief and distress are not enough to amount to psychiatric harm; the claimant must suffer a recognised psychiatric condition.

Examples of recognised psychiatric conditions may include post-traumatic stress disorder (PTSD), severe depression and anxiety disorders.

When deciding whether the defendant owes a duty of care for psychiatric harm, the courts must first consider whether the claimant is a primary victim or a secondary victim.

Primary Victims

A primary victim is someone who was directly involved in the incident or was within the zone of physical danger. This means that they were exposed to a foreseeable risk of physical injury because of the defendant's negligence.

Primary victims can claim for psychiatric harm, physical injury, or both. The important point is that the claimant does not need to prove that psychiatric harm was foreseeable. Instead, they only need to show that some form of physical injury was foreseeable. The law therefore states that if the defendant should have foreseen some physical injury, then they can also be liable for any psychiatric harm or injury that results.

This principle was established in Page v Smith (1996). The claimant was involved in a car accident caused by the defendant's negligence and suffered psychiatric harm. The case established that, where a claimant is a primary victim, if physical injury was foreseeable, the defendant may also be liable for any psychiatric harm that results, even if psychiatric harm itself was not foreseeable.

Therefore, a primary victim must show that:

they were directly involved in the accident or were within the zone of danger;
they were exposed to foreseeable physical danger; and
they suffered a recognised psychiatric illness.

They do not have to prove that psychiatric harm itself was foreseeable.

Secondary Victims

A secondary victim is someone who was not personally in physical danger but suffers psychiatric harm as a result of witnessing injury or harm to somebody else.

Secondary victims face a much stricter test. They must satisfy the requirements established following the Hillsborough disaster in Alcock v Chief Constable of South Yorkshire Police (1992). These requirements are commonly known as the Alcock criteria.

The claimant must establish

· Close ties of love and affection,

· That they witnessed the event with their own unaided senses

· Proximity to the event,

· And that their psychiatric harm was caused by a sudden shock.

Close ties of love and affection

The secondary victim must have a close relationship with the primary victim. Close ties of love and affection are automatically presumed in certain relationships, such as between spouses, parents and children.

In other relationships, the claimant must prove that they had a sufficiently close relationship with the person who was injured or killed.

Witnessing the event with their own unaided senses

The secondary victim must witness the event, or its immediate aftermath, using their own unaided senses. In other words, they must see or hear what happened themselves.

A person cannot normally claim simply because they watched the event on television or were told about it by somebody else.

Proximity in time and space

The claimant must also be sufficiently close to the event in both time and space. This usually means that they must be present at the accident or experience its immediate aftermath.

In McLoughlin v O'Brian (1983), the claimant was informed that her husband and children had been involved in a serious road accident. She later arrived at the hospital and saw her injured family members. The case established the principle that a secondary victim may be sufficiently close to the event if they experience the immediate aftermath, rather than witnessing the accident itself.

The idea of proximity can also include situations where the claimant has a continuous and direct experience of the consequences of the accident. This can include the identification of a loved one at the scene or nearby locations where there is a continuous and direct experience of the consequences of the accident

In Galli-Atkinson v Seghal (2003), the claimant experienced a continuous sequence of events following the death of her daughter, they arrived an hour after the accident and saw their daughter later in the mortuary. The courts decided that this could satisfy the immediate aftermath of the event. The case established the principle that proximity may exist where there is a continuous and direct experience of the consequences of an accident, even where the experience takes place across nearby locations.

The claimant must immediately appreciate that their loved one has been injured. They cannot simply discover what has happened at a later time.

Sudden shock

A secondary victim must suffer their psychiatric illness because of a sudden and horrifying event. The psychiatric harm cannot simply develop gradually because of grief or suffering over a long period of time.

This was demonstrated in Sion v Hampstead Health Authority (1994). The claimant spent time watching his son gradually deteriorate and eventually die following medical treatment. The claimant was unsuccessful in their claim as the court found that his psychiatric harm had developed through gradual suffering and grief rather than being caused by a sudden shocking event. The legal principle was that secondary victims must suffer psychiatric harm as a result of a sudden shock, rather than gradual suffering over time.

However, a shocking event does not always have to happen in a single moment.

In Walters v North Glamorgan NHS Trust (2002), the claimant experienced a series of traumatic events involving her son over a relatively short period. The court treated these events as one continuous and uninterrupted horrifying experience. The case established that a series of events can amount to a sudden shocking event where they form one continuous and uninterrupted experience.

More recently, the courts have limited claims involving medical negligence where the psychiatric harm results from witnessing the gradual deterioration or death of a loved one.

In Paul, Polmear and Purchase (2024), the claimants suffered psychiatric harm connected to the death or deterioration of close family members following earlier medical treatment. The cases established that medical negligence involving gradual deterioration or death following earlier treatment will usually not satisfy the requirement of a sudden shocking event. This makes it more difficult for secondary victims to claim for psychiatric harm in cases involving clinical negligence.

Rescuers

Rescuers are people who come to the aid of primary victims but are not themselves automatically classified as primary or secondary victims.

If a rescuer is placed in physical danger, they can be treated as a primary victim.

In Hale v London Underground (1992), the case considered the position of a rescuer who was involved in assisting at an incident and faced physical danger. The case established the principle that a rescuer who is exposed to physical danger can be treated as a primary victim.

However, if a rescuer is not in physical danger, they are treated as a secondary victim and must satisfy the Alcock criteria.

In White v Chief Constable of South Yorkshire Police (1998), police officers who were involved in the aftermath of the Hillsborough disaster claimed for psychiatric harm. The case established that rescuers who were not themselves in physical danger must satisfy the requirements for secondary victims, including the Alcock criteria.

Whether someone is genuinely a rescuer is a question of fact based on the circumstances of the case. Simply providing trivial assistance will not usually be enough.

Bystanders

Bystanders are people who witness an accident or its aftermath but do not take action to help.

They are treated in the same way as secondary victims and must satisfy the Alcock criteria.

In McFarlane v EE Caledonia (1994), the claimant witnessed a traumatic event but was not directly involved or placed in physical danger. The case established the principle that a bystander is generally treated as a secondary victim and must satisfy the Alcock criteria in order to claim for psychiatric harm.

Near-missers

Near-missers are people who were close to the scene of an accident and may have suffered physical or psychiatric harm because they were within the area of danger.

A near-misser may be regarded as a primary victim if they were directly involved in the incident or exposed to foreseeable physical danger.

This means that the rules for primary victims may apply, including the rule that only physical injury needs to have been foreseeable.

Foreseeability and Psychiatric Harm

The rules on foreseeability are different depending on whether the claimant is a primary or secondary victim.

For a primary victim, only physical injury needs to be foreseeable. The claimant does not need to show that psychiatric harm was foreseeable. This principle comes from Page v Smith (1996).

For a secondary victim, psychiatric harm must be foreseeable in a person of normal fortitude.

In Bourhill v Young (1943), the claimant was not directly involved in a road accident but later became aware of what had happened and suffered psychiatric harm. The case established the principle that psychiatric harm must be reasonably foreseeable in a person of normal fortitude for a secondary victim to successfully claim.

The Eggshell Skull Rule

The Eggshell Skull Rule means that once some psychiatric harm is foreseeable, the defendant must take the claimant as they find them. This means that the defendant may be responsible for the full extent of the claimant's psychiatric harm, even if the claimant was particularly vulnerable to psychiatric illness.

This principle applies to psychiatric harm in Page v Smith (1996). The case established that once some psychiatric harm is foreseeable, the defendant cannot avoid liability simply because the claimant suffers more serious psychiatric harm due to a particular vulnerability.

Exam Tips:

When answering a question on psychiatric harm, the first and most important step is to identify what type of victim the claimant is.

A primary victim is directly involved in the accident or within the zone of foreseeable physical danger. They only need to establish that physical injury was foreseeable and that they suffered a recognised psychiatric illness.

A secondary victim is not directly in physical danger but suffers psychiatric harm because of witnessing injury or harm to another person. They must satisfy the much stricter Alcock criteria, including close ties of love and affection, proximity in time and space, witnessing the event with their own unaided senses, and suffering psychiatric harm caused by a sudden shocking event.

Understanding the difference between primary and secondary victims is therefore the starting point for any psychiatric harm negligence question.

Click below to download the FREE Student Activity Pack: