Psychiatric Harm - Tort Law
Emotional and psychological harm that is a consequence of actual traumatic physical injury is always recoverable. Claimants will normally recover for consequential psychological harm under the category of pain and suffering or loss of amenity. Loss of amenity essentially means loss of enjoyment in life. Such a loss of enjoyment may be occasioned by many causes, such as loss of a limb - but it will also cover emotional and psychological harm that results from a traumatic physical injury.
Those who are involved in traumatic situations may suffer psychiatric illness in one of three distinct categories:
1. They suffer physical injury and this leads to psychiatric harm.
2. Primary victims - A primary victim is directly involved in the accident and is favourably treated. It is sufficient for a primary victim to show that they were physically injured or that they were in danger or reasonably believed themselves to be in danger of physical injury, and it is not necessary to show that psychiatric injury as such was foreseeable: as laid out in Page v Smith.
3. Secondary victims - A secondary victim suffers psychiatric injury not through any physical impact but through witnessing an event that causes or threatens death or serious injury to someone else. The principles are derived from two decisions of the House of Lords: McLoughlin v O’Brian and Alcock.
Alcock is the leading case which set out a series of criteria which
secondary victims must satisfy in order to be regarded as foreseeable victims to whom a duty of care is owed.
1. A close tie of love and affection
The claimant must be in a close and loving relationship with the primary victim. In the case of parents and children and spouses (and engaged couples) this is presumed, in other cases, it must be established.
2. Proximity in time and space
The claimant must have perceived the events or their aftermath (how soon is an aftermath?) with their own unaided senses: it is not enough to be told about
it later. The notion of the aftermath derives from McLoughlin where Mrs M saw her relatives in the same state as they had been in after the accident.
3. The means by which the shock is caused
The claimant must have suffered through an immediate sudden impact on their
senses.
The first successful claim in England for damages for negligently inflicted psychiatric injury was in Dulieu v White. Although not physically injured, she was badly frightened and this resulted in the premature birth of her child. She experienced a real and immediate fear for her own safety and she was entitled to recover damages without
the need for physical impact.
Emotional or psychological harm that is medically recognised, such as conditions like post-traumatic stress disorder, organic depression and pathological grief disorder, can
be compensated for, provided that they arise as a result of a traumatic or shocking
event - hence the legal term nervous shock. According to Lord Ackner in Alcock v Chief
Constable of South Yorkshire [1992] 1 AC 310, shock ‘involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind’.
21 окт 2024
