tort revision note - psychiatric injury

Tort Revision Note - Psychiatric Injury

- Policy issue dominate in Psychiatric Injury as to prevent 1/ floodgate and 2/

fraudulent claim

(White v Chief Constable of South Yorkshire [1999] 2AC 455)

- Medical evidence is required.

( Lam Pui Yi Anita v Secretary for Justice [2009] HKEC 1316)

- Psychiatric illness and evidence should be medically recognized, not simple grief,

sorrow or distress.

(Lam Ching Sheung v Official Receiver [2009] HKEC 1691)

Definition:

- Refered as nervous shock

Include:

Post traumatic stress disorder (PTSD)

(White v Chief Constable of South Yorkshire [1999] 2 AC 455)

Organic depression and personality change

(McLaughlin v O’Brian [1983] 1 AC 410)

Pathological grief

(Vernon v Bosley (No 1) [1997] 1 All ER 577)

Myalgic encephalomyelitis (ME) or chronic fatigue syndrome (CFS)

(Page v Smith [1996] AC 155)

Anxiety neurosis

(Chadwick v British Railways Board [1967] 1 WLR 912)

Depressive disorder

(Chan Ming Fan Jacqueline v Zhang Zi Qi-ong [2009] HKEC 1411)

Not include

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Claustrophobia

(Reilly v Merseyside RHA [1995] 6 Med LR 246)

Pre-death terror

(Hicks v CC of South Yorkshire [1992] All ER 65)

Fear of future tortious injury

(Grieves v FT Everard & Sons [2007] UKHL 39)

Injury to feeling

Four Categories in Psychiatric Injury

1. Tortious Claims by Primary Victims:

-Foreseeable scope of Physical injury or foreseeable psychiatric harm

(page v Smith [1996] AC 155

2. Tortious Claim by Secondary Victims:

-Those outside the zone who suffer as result of harm to others (e.g. witnesses

of disaster) (Alcock v Chief Constable of South Yorkshire Police [1992] a

AC 310)

3. Contractual Claim by Primary Victim:

-The harm is reasonable foreseeable under contract.

(Hatton v Sutherland [2002] 2 All ER 1)

4. Contractual Claim by Secondary Victim:

-The harm is suffered as a result of harm to others.

(Hatton v Sutherland [2002] 2 All ER 1)

Types of Claimants

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1. Primary Victim e.g. Victim himself

Suffer psychiatric illness following physical injury

Are put in physical danger but only suffer psychiatric illness (Primary

Victims)


2. Secondary Victim e.g.Police or Ambulance man

Are not in physical danger but suffer psychiatric illness as a

consequence of witnessing the death, injury or imperilment of another

person with whom they have a close relationship (Secondary Victims)


Claimants in a contractual relationship with defendant – recovery in negligence

allowed for psychiatric illness caused by:

1. Stress at work (Hatton v Sutherland [2002] 2 all ER 1

2. Treatment at work (W v Commissioner of Police of the Metropolis [2000] 1

WLR 1607)

Foreseeable claimants – recovery in negligence allowed for psychiatric illness

caused by:

1. Mistreatment at school

(T v Kan Ki Leung & Another [2002] 1 HKLRD 29) (Shool owe duty of

care to student)

2. Solicitors’ negligence

(McLaughlin v Grovers [2002] QB 1312)

3. Negligent medical treatment of a close friend or family member

(Tredget v Bexley Health Authority [1994] 5 Med LR 178) (You see the

negligence but haven’t sound out.)

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Unforeseeable Claimants – recovery in negligence not allowed for mental distress

caused by physical injury to another person (Best v Samuel Fox & Co Ltd [1952]

AC 716) (P sue psychiatric injury as his husband refused to intersexual intercourse as

employer give press to his husband, Ct held: rejected.)

Primary Victim

-Psychiatric illness resulting from personal injury recoverable as reasonably

foreseeable and assessed as damages consequent on the physical injury

-If a claimant sustained both physical and psychiatric injuries in an incident for

which the defendant has been found liable, the defendant is liable for both

injuries. (Luk Sung Fei Veronica v Chau Chung Shun [2012] HKEC 929).

If physical harm is reasonably foreseeable it is not necessary to establish that

psychiatric illness is reasonably foreseeable, thin skull rule applied.

(Page v Smith [1996] AC 155)

Secondary Victim

Psychiatric illness or injury arising out of witnessing accident caused by

defendant’s negligence

Test of Secondary Victim (all 5 elements must satisfied)

(Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 )

Five requirements for recovery by secondary victim

Psychiatric illness must be reasonably foreseeable

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Recognized psychiatric illness

Proximity of relationship with the immediate victim

Proximity in time and space to events causing psychiatric illness

Proximity of perception – means by which psychiatric illness is caused

The five requirement of secondary victim:

1. Foreseeable

E.g. establish duty

P to show psychiatric illness is foreseeable

P to show a person of “ordinary fortitude” might reasonably have suffered

psychiatric illness in the circumstances.

(Brice v Brown [1984] 1 WLR 997)

2. Recognized psychiatric illness

Not include shock, fear, anxiety or grief, damages will not be granted.


3. Proximity of relationship between secondary victim (plaintiff) and immediate

victim

No fixed list of relationships

Generally must be a close relationship of love and affection between

secondary victim and immediate victim

Relationship of love and affection could be presumed to exist e.g. spouses,

parent and children

Brother, sister and other relatives is not close relationship.

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Closeness of relationship is important factor but not absolute prerequisite

for recovery in all cases (possible claim by bystander witnessing an horrific

accident – denial of such claim in (McFarlane v EE Caledonia Ltd [1994] 2

All ER 1)

4. Proximity in time and space to events causing psychiatric illness

High degree of proximity is required.

Secondary Victim is normally witness the accident or shortly come across

the aftermath (Result the feeling immediately after the accident).

(Benson v Lee [1972] VR 879)

5. Proximity of Perception

Sudden shock requirement

- Psychiatric illness must result from the impact of witnessing a single

event or its immediate aftermath and not gradually develop over time

(Ward v Leeds Teaching Hospital NHS Trust [2004] EWHC 2106)

-How long of time to build up psychiatric illness is depend on case by case

basis.

Own Unaided Senses Requirement

Plaintiff normally required to witness event or aftermath with own unaided

senses

No duty, to plaintiff who is merely informed about event by a third party

(Tsang Mei Ying & Another v Lam Pak Chiu & Another [2000] 1 HKLRD

883)

TV broadcast would not amount to witnessing event senses

(Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310)

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Policy consideration

Why limiting claims for psychiatric illness?

Difficulty of drawing line between acute grief and psychiatric illness

Prospect of compensation might be an unconscious disincentive to

rehabilitation

Floodgates – relaxing rules governing psychiatric illness claims would open

the floodgates of litigation

Expanding liability for psychiatric harm might result in liability

disproportionate to the negligent conduct

Leading Case.

Page v Smith [1996] 1 AC 155

This case cover all the point in primary and secondary victims’ requirement.

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tort revision note - psychiatric injury

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