Tort Of Negligence Duty Of Care: Psychiatric Injury

2143 words - 9 pages

Introduction

We made the point in the introduction that, depending on the type of harm inflicted, a duty of care may be imposed with greater or lesser rigour.

One type of harm for which the courts will insist on a fairly stringent test for the imposition of a duty of care is psychiatric harm (save where it occurs in conjunction with physical injury, e.g. Fryers v Belfast Health and Social Care Trust [2009] NICA 57 Court of Appeal (Northern Ireland).

What is Psychiatric Injury (PSI)?

Harm must be a medically recognized psychiatric illness. Emotional reactions do not sound in damages - but these could lead to other physical or psychiatric conditions which may be actionable: Simmons ...view middle of the document...

Over the years, and throughout the decided cases, several factors constraining the recoverability of psychiatric harm have emerged.

Two Kinds of Victim

The law recognises two classes of victim in relation to psychiatric injury.

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

“Broadly [claimants]… divide into two categories, that is to say those cases in which the injured [party] was involved either mediately, or immediately, as a participant, and those in which [C] was no more than the passive and unwilling witness of injury caused to others”. (Lord Oliver)

However,

“... the categorisation of those claiming to be included as primary or secondary victims is not as I read the cases, finally closed. It is a concept still to be developed in different factual situations.” Per Lord Slynn, W & others v Essex CC and another [2001] 2 AC 592 HL

1. Primary Victims

Primary victim: ‘Where C was involved either mediately or immediately as a participant’, (Lord Oliver in Alcock, at 407).

McFarlane v EE Caledonia Ltd [1994]2 All ER, 1

C must have suffered psychiatric injury in the form of a recognized psychiatric illness. It is unnecessary to ask whether the victim is a person of ‘ordinary phlegm’: Page v Smith, infra, per Lord Lloyd at 197.
Damage to C in the form of personal injury must have been reasonably foreseeable by the D.

Page v Smith [1996] 1 AC 155 HL;

“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 the [claimant], it matters not whether the injury in fact sustained is physical, psychiatric or both” (per Lord Lloyd).

The reasoning in Page was applied in Simmons v British Steel Plc [2004] UKHL and more recently in Corr v IBC Ltd [2008] in which the House held that psychiatric illness was equally as foreseeable a type of harm as physical injury.

Law Reform (Miscellaneous Provisions) Act 1934

1. — Effect of death on certain causes of action

(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.

Grieves v FT Everard & Sons [2007] UKHL 39

‘To allow Cs claim would be an unwarranted extension of the principle in Page to apply it to PSI caused by an unfavourable event which had not actually happened’.

W & others v Essex CC and another [2001] 2 AC 592 HL per Lord Slynn, at 601: Where psychiatric injury suffered by parents flows from a feeling that they brought the sexual abuser and the abused together, they may be classed as primary victims.

2 Secondary Victim
(pregnant women may not be seen as normal fortitude, hormones etc)
A secondary victim suffers psychiatric harm in circumstances where he is ‘no
more than a...

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