In this section we are going to look at another set of scenarios in which the Courts set out limited duties in cases where ‘pure psychiatric harm’ has arisen.
The law determining where a duty of care may be owed for pure psychiatric harm is different to that governing pure economic loss but they are similar. A pre-requisite for a duty of care in these cases is a sufficiently proximate relationship between the Claimant and the Defendant. There are only limited scenarios in which damages can be claimed for pure psychiatric harm. As a general rule a Defendant does not owe any duty of care to the Claimant not to cause pure psychiatric harm. It is important to note that pure psychiatric harm is different to consequential psychiatric harm. There are no special rules to govern when you can claim for consequential psychiatric harm in other words harm that arose directly from the damage suffered from the negligence. Pure psychiatric harm is psychiatric harm suffered without any physical impact.
A general summary of the rules can be stated as follows. Where a Claimant has suffered pure psychiatric harm the injury must be caused by a sudden shock and either medically recognised psychiatric illness or a shock induced physical condition such as a miscarriage or heart attack. The sudden shock requirement means there cannot be a duty of care in relation to harm caused by any gradual build-up of events. The requirement for a medically recognised psychiatric illness means there is no duty of care in relation to effects which do not amount to a defined and diagnosed illness. So, the following rules can be gleaned from the above:
- Pure psychiatric harm is psychiatric harm suffered without physical impact
- For a duty of care to be owed it must be caused by a sudden shock and it must also be medically recognised psychiatric illness of shock induced physical condition
- However, there are also other limitations. The Courts have not allowed for recovery of pure psychiatric harm unless the Claimant has been closely enough affected by the Defendant’s negligence. This includes considering how far the Claimant was involved in events caused by the Defendant’s negligence.
Different types of victim
Pure psychiatric harm as we discussed above is defined as that which has been suffered without a physical impact. For any duty to arise the damage must be caused by a sudden shock. It must also give rise to a medically recognised psychiatric illness of shock induced physical condition. It is the same for both primary and secondary victims of pure psychiatric harm. Once these conditions are satisfied the further rules for primary and secondary condition victims are different.
Consider the case of Page and Smith (1995) 736 this case involved a car crash caused by the Defendant’s negligence. The Claimant did not suffer physical injury however the shock of the injury caused a medically recognised psychiatric illness. The House of Lords stated that the test for primary and secondary victims are as follows. For primary victims i.e., someone who was actually involved in the incident the requirements for a duty of care to be owed to the primary victim are that:
- Primary victims are owed a duty of care in relation to pure psychiatric harm provided the risk of physical injury is foreseeable.
- For primary victims it is not necessary for the risk of psychiatric harm to be foreseeable.
A secondary victim is someone who is not involved in the incident in the same way so someone who for example witnesses an injury to someone else or fears for the safety of another person. In the case of Alcock v Chief Constable of South Yorkshire Alcock is a case arising from the Hillsborough Football Stadium disaster. In that case the Claimants were relatives of the victims who had suffered serious injury or death. It was held that the Claimants were not allowed to recover damages for pure psychiatric harm that they suffered because the duty of care was not owed to them by the Defendant.
Alcock established that the following needs to be satisfied in order for secondary victims to be able to claim pure psychiatric harm.
- Firstly, the psychiatric harm must be foreseeable.
- Secondly there must be a proximity between the Claimant and the person who is actually endangered by the Defendant’s negligence.
- There must be proximity in time and space between the Claimant and the accident or its immediate aftermath.
- There must be proximity of perception meaning that they must have witnessed or seen the immediate aftermath with their own senses.
These requirements are now referred to as the Alcock Control Mechanisms which work to limit the number of secondary victims to whom a duty of care is owed.
- Foreseeability
The Courts have held that in relation to primary victims it is not necessary for the risk of pure psychiatric harm to be foreseeable. In essence the Courts take the view that no distinction should be drawn between physical injury to a primary victim and psychiatric injury to a primary victim. However, where there is a second victim acting as the Claimant they have not been placed in any danger themselves the position is clearly very different to someone who has been exposed to the risk of physical harm. This is why the secondary victim has to demonstrate that psychiatric injury was a foreseeable consequence of the Defendant’s negligence. The fundamental question for the Court is in relation to a secondary victim was it reasonably foreseeable that a person of normal fortitude in the Claimant’s position would suffer a psychiatric illness. If so, then a duty of care will be established. - Proximity of relationship
The House of Lords provided some detail on this in Alcock. They stated that where a relationship of parent/child/husband/wife/fiancé exists there is a presumption of relationship of close ties of love and affection. If the Claimant falls outside the categories where close ties of love and affection can be presumed the Claimant must prove that such relationship existed. - Proximity in times and space and proximity of perception
These requirements can be seen to be overlapping given that it is difficult to see how a Claimant could see or hear an event with their own senses without being in some way proximate to it. This requirement was considered in the case of McLoughlin and O’Brian (1982) 298. In this case one of the Claimant’s children was killed and her husband and two other children were severely injured in a road accident. The incident was reported to the Claimant whilst she was at her home some two miles from the scene. The Claimant arrived at the hospital about an hour after the accident. At the hospital, the Claimant saw the extent of the injuries to her family as they were still in the same condition they had been at the scene of the accident i.e., covered in mud. As a result she suffered severe and persisting psychiatric harm for which she claimed damages. The House of Lords held that the Claimant could recover pure psychiatric harm.
The test to satisfy the proximity in time and space the Claimant need not actually be present at the time of the incident however they must at least become upon the immediate aftermath.
Then consider White v Chief Constable and South Yorkshire Police (1999). This was another case arising out of the Hillsborough disaster. The Claimants in this case were police officers. In each instance the police officers claiming damages had suffered pure psychiatric harm. However, the officers had not gone to the actual area during the incident at the football ground. The Claimant’s case failed. The House of Lords did not accept that being employee conferred a special status and that a duty of care should be owed to the officers in respect of pure psychiatric harm because that harm was suffered during the course of their employment. The House of Lords also did not accept that being a rescuer conferred to special status and that a duty of care should be owed to the officers in respect of pure psychiatric harm simply because that harm was suffered during the course of acting as a rescuer. This means that rescuers should be treated in the same way as any other victim who suffers only pure psychiatric harm therefore if a rescuer has been in the actual area of danger they are a primary victim a duty of care is owned to a primary victim provided there is a foreseeable risk of physical injury.
If a rescuer had not been in the actual area so they had not been exposed to any risk of physical injury, then they will be classed as a secondary victim. They will be owed a duty of care only if they meet all the tests laid down in Alcock. Again in relation to the above cases we have only considered whether a duty of care has actually been found to be owed. It is important that in relation to any case for negligence the Claimant needs to demonstrate that not only that a duty of care was owed but that the duty was breached and the breach caused the damage that the Claimant suffered.
It is important to remember that a claim for psychiatric injury is ultimately just another negligence claim. We have explored in depth the first element of a negligence claim being the establishment of a duty of care. The rules we have set out and the Authorities discussed the circumstances in which such a duty of care will be found. In all cases of pure psychiatric harm the duty of care is limited. There is a distinction drawn between primary victims and secondary victims. A primary victim is someone who is actually involved in the incident a secondary victim is someone who is not involved in the incident but someone who witnesses injury to someone else or is placed in fear of the safety of another person. The second victims will be owed a duty of care if they fulfil all of the requirements in Alcock. Once a duty has been established then the Claimant will need to prove breach of duty and causation of damage the Defendant may well rely on any of the defences that we will consider later on.