How the Judges Made Their Rulings in Respect of Secondary Victims Suffering From Psychiatric Illness - Case Study Example

In Negligence Actions Causing Psychiatric Damage, Why Are Courts So Reluctant To Impose a Duty of Care on Defendants Where the Claimant is a “Secondary Victim”? Introduction There have been many cases that have involved negligent actions, which result in a psychiatric injury. It has been easy for the primary victim to claim for damages, but for secondary victims, the courts have been very reluctant to impose a duty of care on defendants. This has resulted in many secondary victims not getting compensated for the damage caused to them. There are many reasons that courts have been reluctant to impose duty of care, the reason for this being attributed to the fact that it is very difficult to ascertain if the secondary victim deserves a claim in cases of psychiatric injury. Some individuals pretend to have psychiatric injury in order to punish the defendants. Courts have given differing opinions in such cases, and thus it has been hard to have a clear-cut law that governs secondary victims. Most of the rulings made in regard to duty of care and psychiatric injury are based on previous cases of which majority are not related to what happened. Most of the court rulings are based on the 1992 case of Alcock v Chief Constable of South Yorkshire in which the court gave several criteria on how it can ascertain if a secondary victim deserves a claim. The court ends up either accepting or rejecting a claim from the plaintiff. However, there are some cases where the Alcock criteria took a different dimension, that is, a court made a ruling that damage to property can cause psychiatric injury. The paper will discuss some of these cases, and how the judges made their rulings in respect of secondary victims (suffering from psychiatric illness). Psychiatric harm, Duty of Care, and Secondary Victims Psychiatric harm is simply defined as a nervous shock. The individual must have suffered a familiar psychiatric disorder because of the damage instigated by breach of duty of care. The normal human emotions are not sufficient to claim damages under such situations. It is important to mention that this area of negligence is controversial. Cases like the 1989 Hillsborough disaster have emphasised most issues facing this sophisticated area of law. The disaster left 95 Liverpool spectators dead and four hundred injured. Numerous claims of negligence were filed in court for the victims and their families of whom majority of them saw the tragedy happen on television.1 As stated before, psychiatric injury is a nervous shock, and it is a type of personal injury, which is more problematic to claim for than a physical injury. Evidence that the plaintiff suffered a severe psychiatric disease like post-traumatic stress disorder must be present. Ordinary anxiety, fright, or grief with any physical injury is not sufficient because it fails to amount to a psychiatric disorder. The courts have been very careful in identifying a duty of care related to psychiatric injury because of various reasons. Diagnosing psychiatric injury is rather difficult than diagnosing physical injury and thus making it possible to have fake claims.2 It may create loopholes of litigation with various claims being made and therefore, making psychiatric injury very difficult to measure in regards to compensation. The trouble only arises for claims related to pure psychiatric damages. In other words, where the plaintiff is not physically injured, but only suffers psychiatric injuries. There has never been an issue of ascertaining duty of care where the plaintiff suffers psychiatric damages because of carelessly inflicted physical injury or damage. A plaintiff can be compensated for anguish and emotional distress because of physical injury. The basic principles of negligence are utilized when the plaintiff suffers physical harm and psychiatric injury.3 However, where the plaintiff only suffers psychiatric injuries, additional necessities have to be fulfilled for a successful claim. In situations of pure psychiatric injuries, there is need for a distinction between the primary victim and the secondary victim. The primary victim is the individual involved in the accident, and the secondary victim is the individual who simply witnesses the accident or appears shortly after it has occurred. Stricter rules restrict the respondent’s liability to the secondary victims. It is not reasonable, just or fair for the respondent to be accountable for all the individuals who witness the respondent’s negligent acts or occur upon them immediately afterwards and are not directly concerned in the actions.4 A secondary victim is defined as an individual who generally suffers psychiatric disorder as a result of observing an accident despite the fact that they are not in any danger. The plaintiff must be able to establish that the psychiatric disorder was practically foreseeable.56 A secondary victim is also described as an individual who suffers psychiatric disorder because of seeing an accident or its instant aftermath. It is crucial to suggest that the individual is not in any danger but can suffer shock because of witnessing another individual injured, practically believing another individual is injured, or going to the scene of the accident immediately afterwards.7 Additionally, the secondary victim is supposed to have close ties of affection and love for the primary victim of the accident.8 For the sake of public policy reasons, it is crucial to state that the duty of care that is imposed on the defendants for psychiatric damage caused to secondary victims is limited within reasonable boundaries. There exist legal restrictions on the claims of secondary victims. The case of Alcock v Chief Constable of South Yorkshire Police (1992) saw the House of Lords setting out the criteria essential for a respondent to be accountable for psychiatric injury instigated to the secondary victim.9 The plaintiff is supposed to establish the following necessary requirements. A close tie of affection and love with an individual involved in the tragedy or accident such that it is practically predictable that the plaintiff will suffer psychiatric damage or illness. A close tie of affection and love is assumed to exist between parents, children, and spouse; however, other plaintiffs must ascertain such a relationship is in existence. Geographical closeness to the accident or its repercussions must be established. The plaintiff must be there at the accident scene, witness the accident as it happens and/or its immediate results. The plaintiff must have heard or seen the tragedy or the instant aftermath with his own senses.10 The plaintiff cannot be successful if he has created the scene after witnessing the accident on television or after being narrated by a third party. The last but not the least requirement is that the plaintiff because of the accident suffers a medically recognized psychiatric disease. In the Alcock v Chief Constable of South Yorkshire (1991) case, 95 individuals were killed and many others wounded in the Hillsborough football pitch. This happened when the respondents (South Yorkshire Police) carelessly permitted too many supporters into the football pitch and individuals at the front were compressed against the field barriers.11 The accident was witnessed by the plaintiffs, who were relatives and friends of the individuals injured. Some plaintiffs were at the field while others witnessed the incident on the television or listened to them mentioned on the radio. It is worth mentioning that all the plaintiffs suffered psychiatric disease. To succeed in the claim for psychiatric disease, the link between the plaintiff and primary victims had to be satisfactorily proximate. An existence of close ties of affection and love had to be established. However, two plaintiffs who were in the field were not successful because they lacked sufficient close relations with any of the sufferers. Plaintiffs who witnessed the incident on the television were not in the hearing or sight of the accident and any graphic representation of suffering were forbidden by broadcasting code of ethics.12 In the case White and others (1998), it is recognized that victims of psychiatric damage who are not in danger of being physically incapacitated or they are physically injured as being secondary victims. In this group, there are various cases and individuals who claim include the following. First, as aforementioned, individuals who have suffered psychiatric injury because of watching injury or death of relatives, work colleagues or friends. Second, individuals whose psychiatric damage has been attributed by them accidentally bringing about injury or death to others and where the eventual cause another person’s negligence. Third and lastly, individuals who suffered psychiatric injury because of performing as rescuers (this includes individuals giving assistance to others who are in danger and those performing their duties like the police officers).13 Before White, each of the aforementioned groups was subjected to various treatments. However, White suggests that the groups are subject to similar rules developed in these two cases (Alcock v Chief Constable of Yorkshire [1992] and McLoughlin v O’Brian [1982]). The cases suggested that secondary victims could claim for psychiatric damage in very restricted situations. In the case of McLoughlin v O’Brian, the plaintiff’s children and husband were involved in a very serious car accident. The accident was as a result of the respondent’s negligence. The husband and two of the three children were badly injured, and one was killed.14 The plaintiff was not present when the accident occurred, but she was informed about it immediately, and taken to the infirmary. At the hospital, she saw her family covered in oil and dirt, and her seriously injured son screaming in pain and fear. As a result, she suffered psychiatric damage or injury, personality changes and clinical depression. The House of Lords permitted her claim, despite the fact that up to then, only witnesses actually present at the venue of a shocking accident had been permitted to recuperate for psychiatric injury. The decision by the court was confused because Lord Bridge indicated that the main criterion “was still reasonable foresight, and the claimant could recover because her psychiatric injury was reasonably foreseeable, but Lords Wilberforce and Edmund-Davies favoured a different approach.”1516 They indicate that although psychiatric injury was reasonably foreseeable, it was not sufficient to develop a duty of care to the secondary victims. Different from other forms of plaintiffs, secondary victims are supposed to fulfil various requirements that concern their relations to the primary victims of the awful accident and their stand in regard to the accident. The second approach has gained favour among courts, and it is explained in full in the Alcock v Chief Constable of South Yorkshire (1992).17 White asserts that a claim for a secondary victim can only be recognised where the witness of reasonable strength would probably suffer psychiatric damage. If the plaintiff suffers psychiatric damage because they are prone to shock, reasonable foreseeability cannot be proved. However, it was emphasized that the rule should never be confused with the situation of eggshell skull, for instance, in the case of Page v Smith, the damage caused by the psychiatric injury was more than expected. Secondary victims, just like primary victims must be able to demonstrate that their psychiatric injury results to a known psychiatric disease.18 These individuals are also subject to more requirements, that is, the psychiatric injury must have been as a result of the plaintiff suffering an unexpected and sudden shock instigated by a horrifying incident. This does not include, for instance, cases in which individuals suffer psychiatric disease because of stress, or grief of bereavement, and the demands posed to care for a disabled family member hurt by the negligence of another individual. In the 1994 case of Sion v Hampstead Health Authority, the plaintiff had suffered a stress-related psychiatric disease because of witnessing his son gradually dies in intensive because of negligent or careless medical treatment. It was suggested that since the psychiatric illness of the father was not caused by sudden shock, he was unable to recover any damages for the disease.19 A contrasting case is the 2002 North Glamorgan NHS Trust v Walters. In this case the plaintiff was the mother of a boy child who succumbed to death after getting negligent treatment from the defendants. The child, Elliott, was taken ill to the hospital. The mother at that time was not aware that her child’s illness was misdiagnosed. She got up to find the child choking and coughing blood and the doctors informed her that the child was having a fit. They further informed her that it was not likely for the child to suffer from any severe damage. He was moved to another hospital later that day, and the mother was informed (now correctly) that her child suffered serious brain damage, and he was in a state of coma.20 The mother was told to contemplate switching off the child’s life support machine. The father and mother of the child agreed to the suggestion the following day. The incidents made her suffer a psychiatric disease; however, the hospital maintained that they were not responsible because it was as a result of sudden shock but because of a series of incidents that happened over 36 hours. The argument was rejected by the Court of Appeal and stated that the shocking event mentioned in Alcock could create a series of incidents and, therefore, in this instance the mother witnessed the fits, heard the news that her son had severe brain damage after being informed that he was not, and at that point, watched him die.21 Each of the incident had its own immediate effect, and can be differentiated from cases in which psychiatric damage was as a result of slow understanding that the child was dying. The courts have maintained that the death or injury to a loved one and damage to property can cause shock. In the 1988 case of Attia v British Gas, central heating was being installed into the plaintiff’s house by British Gas. The plaintiff spent several years improving and decorating her home and eventually became attached to it. That afternoon after returning from work, she found her house burning.22 The fire brigade spent close to four hours to put the fire under control and by that time, the fire had severely damaged her house. The negligence of the respondent’s employees caused the fire. The defendant acknowledged their responsibility for the house’s damage; however, the plaintiff pursued damages for the psychiatric injury (nervous shock) that she suffered. The Court of Appeal accepted her plea. In most cases, causation becomes hard to ascertain. This is because, in addition to the necessary shock, plaintiffs will have been subjected to the grief of bereavement, and this can equally lead to their psychiatric damage.23 In the 1996 case of Vernon v Bosley (No 1), it was maintained that sudden shock was partially responsible for the plaintiff’s psychiatric damage and because grief also played a crucial role, it could not stop a claim. The plaintiff had watched his children drown in a vehicle that was negligently/carelessly driven by their baby sitter. The Court of Appeal acknowledged that the plaintiff’s disorder could have been partially caused by the anguish of losing his children, however, “since the shock of witnessing the accident had also played a part, it was not necessary to make minute enquiries into how much of his illness was attributable to each cause, if indeed it was even possible to find out.”24 Bibliography Elliott, C. & Quinn, F. 2013, Tort law 9e, 9/E, Pearson Education Ltd, London. Jones, L. (2011) Introduction to business law, Oxford University Press. Oxford. Kaare, F. 2004, Liability for psychiatric injury in the English law of torts, Available from: https://www.duo.uio.no/bitstream/handle/10852/19720/15038.pdf?sequence=1[Accessed 28th June, 2013] O’Riordan, J. 2003, A2 law for AQA, Heinemann Educational Publishers, Oxford. Schaffer, G. 2006, The development of the law on psychiatric injury in the English legal, system, The New Zealand Postgraduate Law e-Journal, 4, pp1-17. Tufal, A. 2003, Negligence – Duty of care, www.lawteacher.co.uk, Available from: [Accessed 28th June, 2013] Read More