Discovering Psychiatric Injury under Tort of negligence

For the longest time, the existence of tort of negligence has helped numerous

victims in getting compensation from the person who have caused them damage or

loss. The principle case for negligence under the law of tort is the 1932 case of

Donoghue v Stevenson where initially it was held that Donoghue was not able to sue

the manufacturer of the ginger beer because she was not the party who have a

contract with the company. However, this changed when the neighbour principle was

introduced by the house of lords which said that even in the absence of a written

agreement, everyone had a duty of care for their neighbour. Nonetheless, it is

sometimes difficult to prove under negligence which is why there are various elements

which the parties need to fulfil in order to sue under negligence and also to claim for

damages. The most important element is that the party must prove that the defendant

actually owed them a duty of care, for example, do road users owe a duty of care

towards other road users, or do medical practitioners owe a duty of care to their

patients, and so much more. The other two elements to prove are whether the

defendant have breached that duty of care and if the party incurred loss and damages

as a result of the breach. Going back to the statement given in the question, it was

said that the mental integrity of another is also crucial under duty of care, nevertheless

there are also other duties which the court find it hard to accept or to consider them

as a duty. Take psychiatric injury for instance, the court would only consider some of

the injury to be recovered if it is a really bad case of negligence. Hence, this paper will

focus on psychiatric injury under tort of negligence and under what circumstances

would the court accept them to be recovered. We will discuss the various victims whom

are able to claim damages under psychiatric injury and also the different principles

which the court consider to aid in making decisions for cases of psychiatric illnesses.
 Primary Victim

To explain what is psychiatric injury, we will be looking at 2 categories of victims

classified under psychiatric injury which are primary victim and secondary victim.

Primary victims are those who were involved in the incident directly and whose safety

was put in danger whilst being in that incident. On top of that, physical event stressors

are reportedly to be more lenient in primary victim cases compared to that in

secondary victim cases. Essentially, it was established that foreseeability is a

significant factor in proving whether a primary victim is within the "zone of danger" due

to an external physical stressor event, which identifies whether they would suffer from

physical harm, injury, or any mental disorder. Moreover, this primary victim have to be

of normal mental fortitude for the shock or illness to be foreseeable. This is because if

it was a victim of a not normal mental fortitude, it is very much hard to foresee whether

they would be shock or not, since the way they think is different than others. This can

be illustrated by the leading case for primary victim of Page v Smith (1996), where it

was said that it was reasonably foreseeable that Mr page would sustain physical injury

because of the defendant driving negligently. Whenever a primary victim sustains a

physical harm that was foreseeable, then the victim is entitled to compensation for

both of their physical injury and any recognised psychiatric disorder brought on by the

defendant's breach of duty of care.

Secondary Victim

On the other hand, secondary victims are individuals who suffered a psychological

impairment as a consequence of an accident, a shock, or any other traumatic event

while not being directly involved in the event. This could also include rescuers or any

involuntary participants. If any of these victim were not exposed to any physical harm
then they would automatically be classified as secondary. However, it should be

highlighted that even in cases where the primary victim has not suffered any sort of

bodily or psychological harm, the victim may still be able to make a claim as a

secondary victim. The primary consideration in this matter is whether the defendant

breached their duty towards the secondary victim, ultimately causing to them to

suffer from damages. The main psychiatric injury which are recognised by the courts

are Post-Traumatic Stress Disorder (PTSD), Adjustment Disorder, and Depression.

However, one of the issues which the court face for cases under psychiatric injury is

that not all injury are recognised by the law, and they would only accept the harm if it

is a medically recognised condition. Consequently, this has cause the law which

governs cases for secondary cases to be inconsistent with the judgements, and the

lack of principle for this makes it incoherent, inconsistent, and produces uncertainty in

the law. Nevertheless, the reason the court do not consider all psychiatric injury to be

recovered is to avoid the society into thinking that everyone is able to sue each other

on every small matter which would lead to the court being overwhelmed by cases and

eventually leading it to a backlog of cases. Due to this, various “control mechanisms”

were put in place by the court to stop floodgates, in order to provide the courts some

kind of control over claims from piling up. These control mechanism will be discussed

further below.

Control mechanisms in determining which claim is acceptable in court

These control mechanism which essentially acts as policy reasonings for the court

to determine which claim can be accepted under psychiatric injury. One of the control

mechanism had already been discussed under primary victim above is foreseeability

of the harm, however, it is quite different for secondary victim. It was established
that secondary victim must show the foreseeability of psychiatric illness among a

group of people of reasonable fortitude as a result of an external incident which

involved another party who was murdered or hurt. Similarly to primary victim

mentioned above, the injury must also be foreseeable by a person with a normal

intelligence, but the condition should be one that is recognisable. This was

demonstrated in the case of Liverpool Women’s Hospital NHS Foundation Trust v

Ronayne, where the court of appeal stated that the external event must be so bad or

“horrendous” that even an ordinary person would reasonably believe that they would

have suffered from the said psychiatric injury. The next control mechanism is proximity

in terms of closeness of the relationship. The leading case for this is the case of

Alcock in 1989, where over 400 people injured and 95 people died caused by

stampede and crowd crush. Here the house of lords stated that claimant and the

primary victim who has a close tie of love and affection between them are able to claim

under psychiatric injury. For example, parents, children, and rescuers too are allowed

to recover however siblings, and distant relative is not considered to have a close tie

of love and affection. The next control mechanism is proximity in time and space. The

principle under this is that the claimant must either be present when the accident

occurs or discover its immediate aftereffects within a relatively short time. The decision

in the case of McLoughlin v O’Brien set a new precedent wherein watching the

aftermath was akin to witnessing it at the same time it occurred as long as it is within

the scope of proximity of time and scope. Using the stampede case earlier, it was said

that people who witnessed it in the television would not be able to claim damages,

however you can if it was a live broadcast and nothing had been altered or edited. In

the case of Rapley v P & O European Ferries Ltd (1991), it limits the claim for

rescuers, where the claim for psychiatric injury was not accepted because the claimant
was present at the scene three days after the event. It was said that this went beyond

the scope of time which is why the claimant is unable to claim for damages. The last

control mechanism is direct perception. Here, the court decided that the claimant had

to have immediately witnessed the accident through their own "unaided sense". This

is quite similar to the proximity of time and space under the case of McLoughlin,

where the court still accept the psychiatric injury suffered by the wife after she saw the

husband’s and children’s dead body right after the accident in the hospital.

Reforming the law for psychiatric injury

Referencing from above, it can be said that there are some uncertainty and

inconsistency in the law for psychiatric injury under tort of negligence, which is why

there have been a proposal to reform the law for psychiatric injury stated in law

commission report. In the report, it was stated that there should be a statutory duty of

care where it laid down clearly the factors, people and circumstances under which can

be accepted by the court. This way, at least there’s a clear statutory guideline on to

how the courts should manage these cases. However, the report did mention that the

rules laid down under Page v Smith for primary victims would not be change because

it is fair that the victim is able to recover if it was caused by the defendant’s breach of

duty of care and if the harm was foreseeable. However, the reform focus more on

keeping only foreseeability of the injury or death for proximity in terms of closeness in

relationships, without taking into consideration the proximity of time and space

because there had been a lot of cases where the outcome was unfair just because the

claimant was late for a few hours or days or not being near the scene of when it

happened, and because of that they were unable to claim under psychiatric injury.

Another important reform is that direct perception is no longer needed because some
people would be affected differently and just because they didn’t have first-hand

encounter with the event, or was there to witness the death, does not mean that the

psychological injury sustained is not justifiable. The last reform is on closeness in

relationships, where there would be categories of relationship stated in the statute that

is able to claim damages. Other than just parents, and children, siblings and those

who have lived for more than 2 years including same sex relationship is also covered

in the statute.

Conclusion

In conclusion, I strongly feel that the reform is much needed because there is too

many inconsistencies in the judgements, and the law as illustrated by the cases

mentioned above. Moreover, as stated above, this would provide the court with a

clearer guideline as to how to manage different types of cases while avoiding

contradicting judgements. This reform in having a clearly documented statute would

also allow everyone to be able to recover under psychiatric injury fairly without feeling

like their psychological illness is unaccounted for under the law.