Negligence Law and Psychiatric Injury
About the Author
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course.
It is well known both that 1 in 4 people will suffer from mental health problems in a given year and that mental health problems are still very much a taboo topic in many countries worldwide.
How we treat those with mental health problems says a lot about our society, both in terms of medical or social care and in terms of how the law treats them. So it is disappointing to see that the law on recovering damages for psychiatric injury that was negligently induced is not only complex, it is also full of unnecessary requirements which do not always make sense. There are certainly many problems around the idea of bringing a claim for such an injury, but these are not the same ones being thrown up by the current UK law.
Clearing the ground
Before we start discussing the law it is worth thinking about whether you should be able to bring a claim in negligence when somebody causes you psychiatric injury at all. In the UK any such injuries will be treated under the NHS free at source – except for prescriptions, which cost about £7 each or you can get an annual discount. In addition, if you are suffering from a depressive or stress-related disorder then it may well be that the extra worry of a court case will only add to your troubles.
There are two responses here. Firstly, the treatment of physical injury is treated in the same way in the UK, so there is no principled reason to treat psychiatric injury differently on these grounds at least. In any case, damages recovered in such cases cover ‘loss’, which will not ordinarily include medical costs. Secondly, it is not for the law to place a blanket ban on claims out of a paternalist aim to prevent people further damaging their own health. If you had broken your leg and had to keep travelling to your lawyer’s office to organise your claim, you would probably also be prolonging your injury in comparison with simply resting in bed. These are both wider issues than this discussion and so will be left alone.
As with so many other areas of law, the rules on recovery of damages for psychiatric injury in the UK are based in common law. This would make a clear statement of ‘the law’ tricky enough, if it were not for the fact that we distinguish between a few different situations in the case of psychiatric illness and the area is still arguably developing. A very brief outline will be attempted and the analysis of the law below will build on these as it goes.
All claims for ‘nervous shock’ (what it’s still called in law) have to be founded upon a recognised psychiatric injury that has been medically diagnosed. The psychiatric injury must also be reasonably foreseeable. Unless the defendant knows the victim they can assume that the victim is no more sensitive than the ordinary person. Where the victim was in danger of physical injury it is enough that physical injury was reasonably foreseeable (see Page, below).
As to who can claim, we distinguish between various groups, but these are some important ones:
– those in the area of reasonably foreseeable physical harm
– those who reasonably fear themselves to be in danger
– those who have a close tie of affection with the victim of an accident and are near to the accident in time and space
– those who suffer reasonably foreseeable psychiatric illness due to stress at work
– those who suffer reasonably foreseeable psychiatric illness due to the defendant causing damage to their property
It is a mixed bag of particular situations and it must be remembered that negligence law can expand to fill more situations if necessary. For the whole list and an explanation of the relevant case law have a look at Law Commission Report LC249 on Liability for Psychiatric Illness.
Instead of going through this in detail, a few problems with the current law will be pulled out.
Behind the times? An outdated understanding of psychiatric injury
Perhaps the fact that this area of law is still known as ‘nervous shock’ best sums up the concern that modern understandings of psychiatric illness have not filtered through to the law. There are a few elements here.
First, the requirement of a ‘shock’, a single traumatic event, misunderstands the emotional impact that a long-term situation can have on a person. It would not be outside the realms of possibility that if you severely injured somebody in an accident and their partner was required to care for them on a long-term basis that they would suffer from a depressive illness as they watched their loved one suffer. Indeed, you could almost call it foreseeable! Of course there is the problem of bringing cases years after an event with such an example, but the illness need not begin after such a long delay. In Taylorson v Shieldness Produce Ltd  PIQR P329 the Court of Appeal decided that parents could not claim damages for the psychiatric injury following the death of their son when he was run over by a reversing vehicle. The parents were not at the scene of the accident and the mother was dissuaded from seeing the son until the following day, but they sat with him until his life support was turned off three days later. The Court felt bound to refuse the claim due to the shock requirement. The Law Commisison noted this case and advocated the removal of the requirement in its Report on the subject in 1998.
Somewhat related is the need for ‘proximity in time and space’ when recovering for psychiatric illness resulting from harm to a loved one. Again, the law here attempts to limits those who can make a claim by demanding that they see the victim at the time of the accident or in the ‘immediate aftermath’, a doctrine developed in McLoughlin v O’Brian  1 AC 410. And yet is this the most principled line to draw? Certainly somebody who did not know the victim ought not to be able to bring a claim when they hear about the accident on the news and are severely affected, but it should not be assumed that only seeing an accident or the victim shortly afterwards will cause psychiatric injury. A parent may well be more shaken by an accident precisely because they could not be there to comfort their child. Using the proximity in time and space and close ties of love and affection as alternatives would perhaps be a better way of limiting claims. That way those affected by seeing the accident but who do not know the victim, and those traumatised by knowledge of the event because they do, might both come within the law without opening the courts to people seeing the story on the news.
Primary and secondary victims: a meaningful distinction?
In Page v Smith  AC 155 the Court noted that it is important to distinguish between primary and secondary victims where a claimant tries to bring a claim for psychiatric injury. If the claimant was in danger of physical injury then there is no further question of whether psychiatric injury was foreseeable; the claim is permitted because of the danger of physical injury. In Page, for example, the claimant had suffered no injuries in a car crash but it had caused his chronic fatigue syndrome to come back. This was extended in Young v Charles Church (Southern) Ltd  39 BMLR 146, so that it was irrelevant that the psychiatric illness was caused by watching a work colleague dying and not because the claimant was in danger himself.
Certainly Page takes away an extra question of causation, by essentially assuming that if you are in physical danger you may suffer psychiatric harm from the experience. We can ask if this will always be proportionate (if you are in mild physical danger is psychiatric injury foreseeable?), but at least it takes seriously the idea that being in physical danger can be traumatic. The NHS website tells us that 1 in 3 people will suffer PTSD after a traumatic experience. However, Young is more difficult. Do we really consider it a meaningful distinction as to whether you were in physical danger or not, when that is not the real reason for your psychiatric injury? Or are we privileging personal physical injury, by saying that being in physical danger is traumatic but simply seeing another suffer is less so, and not seeing it but being aware of it is not traumatic at all? Hunter v British Coal Corporation  2 All ER 97 shows just how fine this line is. H and C tried to fix a hydrant which H had driven into by accident. Whilst H went to find a hose the hydrant exploded and C died. H’s subsequent depression could not found a claim because he was not at the scene during the accident, and he did not fit the Alcock criteria of a close tie and proximity in time and space. Does this case show how Charles just allowed someone to slip within the legal area based on the chance fact that he was in danger, or is Hunter too far from situations where we would expect someone to suffer psychiatric injury? Or, and it’s a different question, is it too far from the cases we are happy to order compensation for?
The problem here – foreseeability of psychiatric injury
Arguably, this confusion in the case law comes from the fact that we still aren’t sure when we can call psychiatric injury ‘foreseeable’, and are not comfortable accepting that everyone will react differently to traumatic events. In psychiatric injury cases we copy across the ‘thin skull rule’ from physical injury cases – if any injury is foreseeable you are liable for all the damage, even if most victims would not suffer that badly. But of course the problem with psychiatric injury is that some people will suffer from depression or PTSD as a result of something that others take in their stride; an economic recession, witnessing a horrible death of someone they don’t know or even winter. And yet this does not fit well with the law, which requires predictability and tries to treat people as relatively similar – at least as to whether they’ll suffer injury in the first place. So a commitment to recognising that psychiatric injury can be caused in various circumstances not only demands that we clear up the law in areas such as recovery for psychiatric injury following a loved one’s accident. It also requires us to ask how foreseeable such injuries really are in the first place when all our minds work differently, and how ready we are willing to accept people’s claims that they are suffering PTSD from something that most people would find upsetting only for a short while. It is not helped that the gatekeepers to these claims are largely white, middle-aged, middle-class men who may not have the same worldview as most of the population, and do not recognise the ‘slow-burn’ mentality that is more common among women. It is the same issue that meant that until relatively recently abused wives who killed their husbands out of fear of future violence could not make use of a defence to reduce their sentence.
In contrast, the cases in employment situations are much easier because the relationship between employer and employee will mean that the former will know how the employee is likely to react to stress. We feel more comfortable imposing liability where the employer had notice of the employee’s problems, even if their reaction would be considered disproportionate by many. Barber v Somerset County Council  UKHL 13 is a good example of this: because the employer knew about the claimant’s stress it was under a duty to help alleviate it. In such a personal situation we can more readily accept that the defendant should have foreseen psychiatric injury.
It is undeniable that psychiatric injury is different to physical injury, but simply because we are only just beginning to understand it does not mean that our laws on recovery for psychiatric injury inflicted as a result of negligence should not develop as our knowledge does. We do need to think carefully about who we can ‘expect’ to develop such injuries, and whether we are comfortable with telling people that they are overreacting (which is, essentially, what the law does by refusing cases). But there is certainly work to do in the meantime, such as removing some of the hurdles for a loved one’s injury- as recommended by the Law Commission. Psychiatric injury is difficult enough to deal with without the added stress of a tortuous legal case.