The Law of Tort and the Issue of Psychiatric Harm - Essay Example

?Q Introduction In the law of tort, the issue of psychiatric harm is mostly scrutinized for its potential of opening the floodgates to a host of gold digging claimants. Several policy measures surround any case that involves psychiatric harm and requirements such as the presence of a medically identifiable mental illness and causation are there in place primarily to prevent any such exploitation. Moreover, claims that arise under psychiatric injury or nervous shock have a general tendency to include those people that may not be directly incidental to the negligent act, aptly termed by law as secondary victims, and thus call for a distinction to be made between primary victims and secondary victims with respect of claims. The difference between the two thus far developed has been a cause of grave concern for common law, but the distinction has been made evident by recent cases to a great extent, especially with the presence of principles laid out in Alcock v Chief Constable of Yorkshire Police [1992]1 and McLoughlin v O’Brian [1983]2. What is Nervous Shock? Nervous shock is described as an array of recognizable psychiatric diseases which are over and beyond the usual distresses a person encounters upon witnessing the scene of an accident. Mere emotional setbacks that are considered ordinary, including fear, grief and worry are not considered sufficient at law3. Thus, ailments such as clinical depression, anxiety neurosis, and post traumatic stress disorder fall into the category of nervous shock, which admittedly is a label underplayed as it represents a larger than normal degree of psychiatric damage4 than simply suggesting an element of shock. As Lord Jauncey clarified in Alcock at 419, the claimant must suffer a “recognizable psychiatric illness” in order to justify cause for action (Chadwick v British Transport Commission [1967]5). Thus, it must be observed that nervous shock is more aptly treated as personal injury to the mind as different from personal injury to the body. It follows that the first step to determining whether a claim of psychiatric damage is valid at law would be to categorize the kind of harm experienced, and whether it was serious enough to give rise to a duty of care on the part of the defendant, as normal fear and anxiety is exempt from such duty and people are expected to be of reasonable firmness capable of dealing with normal distresses6. Negligently Inflicted Psychiatric Harm If a claim for psychiatric harm stems from one in negligence, the same principles of establishing a claim apply. Thus, the four requirements of a negligent act must be present, namely the duty of care, breach of that duty, causation and the damage resulting from that breach which must not be characterized as too remote. The law related to duty of care is illustrated well by the principles established in Donoghue v Stevenson7 and Caparo Industries v Dickman8. The duty of care is established when a sufficient relationship can be established by virtue of neighborhood and proximity of relationship so that the claimant can be reasonably foreseen to be injured by the defendant’s act and whether establishing such a duty would be fair, just and reasonable in the present case9. In order to establish this duty, the courts take heed from recognized duty situations (Sutherland Shire Council v Heyman [1985])10. Thus, a manufacturer may be sued by a consumer for a defective product which causes physical harm (Donogue), the driver of a car who engages in an accident but only causes psychiatric damage but no physical damage to the victim he collides with may also be liable (Page v Smith [1995])11 but the employee-employer relationship does not give rise to an automatic duty of care in terms of psychiatric injury suffered by rescuers after an incident (White v Chief Constable of South Yorkshire Police12). Since the damage we are concerned with is psychiatric, the harm may not just extend to the victims who are immediately affected by a risk of personal injury resulting from the negligent act, but also bystanders who may be relatives of or closely related to the injured parties as well, as witnessed in Alcock v Chief Constable of South Yorkshire Police [1992]. This gives rise to two further sub categories of Primary and Secondary victims and the distinction between the two may just be the demarcation between a successful and unsuccessful claim. Primary and Secondary Victims As aforementioned, the primary victims of psychiatric damage are those which are succumbed to an immediate risk of personal injury. Lord Oliver described them as claimants which were “involved, mediately or immediately, as a participant”13. Lord Lloyd shed further light by deeming them as a category of people who may forseeably be victims of personal injury14. No actual injury is required15. This was evidenced in the facts of Page, where the primary victim was on the receiving end of a car accident but suffered minimal physical harm. However, the accident triggered an existing condition of ME (myalgic enencephalomyelitis) which had been present within the claimant intermittently throughout his life. It was held that, as long as the claimant was a primary victim, and there was a forseeable risk to him of a ‘personal’ injury, the defendant would be liable for the psychiatric injury. While the law dictates that the victim is taken as he is found, in cases where the claimant has an eggshell personality, damages may be curtailed if the claimant would have undergone the same illness regardless of the accident (Page v Smith (No. 2) [1996]16. Moreover, public policy measures also dictate where a claimant may be recognized as ‘primary’. In White v Chief Constable of South Yorkshire Police, the police officers who partook in the rescue process following a football stadium accident claimed to be victims themselves by virtue of the employee-employer relationship. The House of Lords held that rescuers were not automatically rendered primary victims by virtue of their employee-employer relationship and had to establish a duty of care just like any other claimant. Since they were not at immediate risk of forseeable injury, their claims could not succeed, and the fact that they were rescuers did not automatically make them primary victims. Not surprisingly, this is only true for victims of the negligent act that can be established as ‘primary’. Secondary victims on the other hand, are subject to more stringent regulations known as the Alcock control mechanisms. In Alcock v Chief Constable of South Yorkshire Police17 a disaster at the football stadium known as the Hillsborough disaster in 1989 caused the families and relatives of the victims who died to bring an action for psychiatric harm caused by the negligence of the police force who allowed a swarm of crowd to assemble at one particular point of the stadium. The stampede that resulted killed 96 and relatives of some of them witnessed them being crushed live. Thus, the claimants were neither injured themselves nor were at immediate risk of foreseeable personal injury, barring them from being classified as primary victims. The House of Lords laid down some control principles in awarding judgment to the claimants in this case. Firstly, a duty of care may be established for ‘secondary’ victims where the shocking event was perceived within significant proximity by the claimant’s own unaided senses, such as in an eye-witness situation, or the claimant was subjected to its immediate aftermath18. This requirement is a modification of the Caparo requirement of sufficient proximity, though in this case, there must be significant proximity between victim and event, such that events witnessed on TV or heard via a third party would not qualify. Secondly, there must be a close bond signifying love and adoration between the secondary victim and the primary victim. This would be self-evident amongst relatives, couples, spouses, etc but all others must prove a similar extent of bond. In Alcock, this bond was what allowed the judges to declare that psychiatric injury would be foreseeable amongst the secondary victims, while others who may not be so closely related were regarded to have enough fortitude to allow them to cope with the incident. Thirdly, the shock must be sudden and not gradual, thus, in instances where the victim spirals into depression as a result of a handicapped relative who they have to live with, the claimant cannot sue. Fourthly, the psychiatric harm must be reasonably foreseeable for a man of average fortitude in the secondary victim’s position. As can be seen, the control mechanisms limiting the claims under psychiatric harm are much more stringent for secondary victims than they are for primary victims. The argument is simple and policy driven, it is to prevent the floodgates of similar cases opening which may allow the system to be vulnerable to abuse. If it were not for the control mechanisms, there would be perpetually no limit to the claims of distant relatives that might surface demanding compensation for psychiatric issues they experienced after hearing the news on the TV. The distinction between primary and secondary victims is sufficiently clear, those that were injured or were subject to a risk of personal injury are called Primary victims where as the Secondary victim does not have to be injured at all, but merely be present as a bystander, in view of the actual incident (Alcock). The two are readily distinguishable. Conclusion It is submitted that the stringent requirements in the latter may prevent certain non-profit driven claimants who were not present at the scene of the incident from being compensated but the law, in choosing to strike a balance between legitimate claims, does right in this restriction, and the only time it may grant an exception for a Secondary victim is when they stumble upon the shocking incident in its immediate aftermath, which may be as long as 2 hours after the incident, such as in McLoughlin. Policy control measures require that primary victims be treated differently than Secondary victims, even if in some cases it leads to unfairness, so that the negligent defendant does not have to compensate for elaborately linked relatives that could not have been reasonably promptly identified. Bibliography Alcock v Chief Constable of Yorkshire Police [1992] 1 AC 310. Bourhill v Young [1943] AC 92. Caparo Industries v Dickman [1990] 2 AC 605. Chadwick v British Transport Commission [1967] 2 All ER 945. Donoghue v Stevenson [1932] AC 562. Hinz v Berry [1970] 2 QB 40. J and Hanford, Peter K: "Tort Liability for Psychiatric Damage." The Law Book Company Ltd [1993]. McLoughlin v O’Brian [1983] 1 AC 410. Page v Smith [1995] 2 All ER 736. Sutherland Shire Council v Heyman [1985] 60 ALR 1. White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. Q.2 Economic loss suffered as a result of a negligent act is subject to the same requirements of duty of care, reasonable foresight of damage and its remoteness as established by Donoghue v Stevenson [1932]. Thus, when a professional undertakes to give professional advice which may foreseeably be relied upon, he owes a duty of care to the advisee and damages resulting from its breach would incur liability on the adviser’s part provided they are not too remote (Caparo Industries v Dickman). In cases of doctors advising patients, that duty is just as much omnipresent when it leads to financial loss or pain and suffering due to breach, so long as the damage that resulted was not too remote and the advice so drafted was intended for a specific purpose (Morgan Crucible v Hill Samuel Bank [1991] 1 All ER 142). In cases of wrongful childbirth however, moral and policy issues take over and the courts have shown reluctance in awarding damages which concern strictly monetary loss and no particular physical injury as a result of the breach. Our discussion will be confined to the case of Macfarlane v Tayside Health Board (Scotland) [1999]19, determining the willingness of the courts to compensate for a childbirth that the doctor promised would never happen. Facts Mr. McFarlane had 4 children and considered his family complete. Mrs. McFarlane also returned to work following to meet the increased financial demands. Mr. McFarlane then went through a vasectomy operation in October of 1989 and was declared to be sterilized by his doctor with a sperm count of negative. The doctor had condoned the idea of intercourse without contraception and following that advice, Mr. McFarlane engaged in unprotected intercourse which resulted in the pregnancy of Mrs. McFarlane. They had a fifth child, Catherine. Mr. McFarlane subsequently claimed damages for negligence on the part of the doctor to the amount of 100,000 for the upbringing of the child and 10,000 for the distress during childbirth. On first instance, Lord Gill dismissed the claims since the law as it stood then pertained to the fact that the benefits of being blessed with a child far outweighed any monetary loss and that there could be no personal injury attributable to pregnancy and the birth of a child20. When the defendants appealed to the House of Lords, it was held that pregnancy and wrongful birth were both capable of being signified as damage since these were the exact events the vasectomy was designed to prevent. As a result, the claim for damages with regards to pain and distress felt during pregnancy were allowed but the House ruled against any allowances of damages for claims to the cost of raising the child. The House of Lords deemed it, mostly on moral grounds, to be against the policy such law is designed to uphold. To declare the cost of upbringing recoverable would not only be unfair to the defendant or the Health board but also make the child feel as if his birth was a mistake. Thus, this decision, while upsetting a 15 year old law regarding unwanted pregnancy and contraception did fall in line with contemporaneous principles. It could not be denied by either of the Law Lords in McFarlane that the joy of childbirth could always overthrow any concepts of family planning and unwanted pregnancies. Thus, any negligence in that regard had to be penalized but restricted to damage flowing from the distress of pregnancy, since it was now recognized as a personal injury. Any other maintenance costs, such as those incurred in raising the child were rightly dubbed irrecoverable. Bibliography Emeh v. Kensington and Chelsea and Westminster Area Health Authority [1985] 1 Q.B 1012. Macfarlane v Tayside Health Board (Scotland) [1999]. Morgan Crucible v Hill Samuel Bank [1991] 1 All ER 142. Caparo Industries v Dickman  [1990] 2 AC 605. Donoghue v Stevenson [1932] UKHL 100. Read More