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The law of Negligence as it applies to personal injury is broad enough to encompass injuries other than the physical.'psychiatric injury' is not a new idea: it is a modern rendition of what used to be called 'nervous shock' or 'psychic shock', a concept of respectable antiquity. However, medicine's understanding of mental trauma has developed more quickly than that of the law, and there are many inconsistencies in the leading judgements. To make matters worse, cases where psychiatric injury is at issue are very often also cases involving rescuers (see liability to rescuers). And where the rescuers are professionals (police, firefighters, coastguards) there are complications of employers' liability to their employees as well. It is therefore not always obvious whether a decision whether aduty of care exists towards the claimant is founded on issues concerning rescuers, employers, or the difference between physical and psychiatric injury.
It is worth thinking about whether 'psychiatric injury' ought even to be a separate category of personal injury in modern law. The interdependence of mind and body is hardly a revolutionary idea any more, after all. The rationale for the distinction seems to be that liability for personal injury could be extremely extensive and difficult to control. This is a policy consideration, similar the policy considerations influencing liability forpure economic loss. Psychiatric injury is not limited to total nervous collapse, but can include depression and anxiety. There is, in principle, no reason why the victim of depression should not be compensated less readily than, say, the victim of a broken arm; however, depression and anxiety are extremely common in society, and the courts are of wary of making it too easy for a widespread socio-medical problem to become the subject of litigation.
So, in order to succeed in a claim for psychiatric injury, the claimant will have to demonstrate that he has a recognizable psychiatric condition, and this will usually require expert medical testimony. It will then be necessary for the claimant to show that he was owed a duty of care by the defendant, and this is where things start to get awkward. While it not usually difficult to show that a defendant has a duty to avoid physically injuring people around him, the traditional view where psychiatric injury is concerned is that people should have sufficient fortitude to cope with 'ordinary' unpleasant and disturbing events (BourhillVYoung1942). In more recent times, it has increasingly been recognized that psychiatric injury may be compensable in certain cases. To establish a claim, the first question we must ask is whether the claimant is a 'primary victim' or 'secondary victim'.
In mc loughlin v obrian (1982), the HouseOfLords held that if psychiatric injury was itself reasonably forseeable, then ordinary rules of negligence should apply. It was not necessary for the claimant to prove that he had any greater proximity to events that in any other form of injury. Then in page v smith (1996), the House held that if the defendant should reasonably have forseen that some personal injury may befall the claimant, it does not matter whether the injury that does befall him turns out to be physical or mental. The claimant in such a case is treated as a 'primary victim', and the ordinary principles of establishing a duty of care apply (defined most authoritatively in caparo v dickman (1990)). In short, the claimant is a 'primary victim' if it was reasonbly forseeable that the claimant would suffer physical or psychiatric injury.
However, many claimants who suffer psychiatric injury will be 'secondary victims'. These are victims to whom no personal injury -- psychiatric or otherwise -- could reasonably have been forseen. For such claimants, the test for a duty of care is out in AlcockVCCSouthYorkshirePolice1991. The claimant must show that:
- he was a person of reasonable fortitude
- he was 'proximate in time and space' to the traumatic event
- he perceived the traumatic events 'with his own unaided senses'
- there were 'close ties of love and affection' between the claimant and a primary victim
Clearly the expression 'close ties of love and affection' is open to interpretation. In Alcock Lord Keith said:
..the kinds of relationship which may involve close ties are numerous and it is the existence of such ties which leads to mental disturbance when the loved one suffers a catastrophe. They may be present in family relationships or those of a close friendship
This seems a fairly inclusive statement, but in fact none of the Alcock claimants succeeded on these grounds. Either they did not observe the events with their unaided senses (many saw them on television), or they were not close enough to the victims. The House did not rule out the possibility of a television broadcast being capable of giving rise to liability,
Salt was rubbed into the wounds of the victim's relatives when WhiteVCCSouthYorkshirePolice1998 was heard in the Court of Appeal. Here the claimants were all police officers, who dealt with the aftermath of Hillsborough in the course of their duties. Some of these officers were able to succeed, despite their claims being prima facie no stronger that the victims' relatives in Alcock. Their claims succeeded because they were owed a duty of care by their employer (the police service) to prevent personal injury, or because they had to be considered 'rescuers' and were therefore 'primary victims'. The House of lords, buy a 4-1 majority, reversed the Court of Appeal decision. The effect of White seems to be that professional rescuers are not in a better position to claim for psychiatric injury than ordinary members of the public, and that rescuers, in general, are not 'primary victims' as a result only of their status as rescuers.