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PSYCHIATRIC HARM – FLOW CHART
C suffers from a recognised mental illness
- Does C suffer from a recognised and diagnosable mental illness? a. Grief, anxiety, heartbreak, humiliation are insufficient – Hicks v Chief Constable (1992) b. Pure distress is insufficient – Hinz v Berry (1970) ; except in the situation that causing mental distress constituted a breach of contract – Hamilton Jones
TWO-PARTY CASES
C’s psychiatric harm can be linked to physical or property harm
Physical harm – Page v Smith (1996)
- Did D owe C a duty of care not to do x, and was it reasonably foreseeable that D doing X may result in C suffering from physical injury?
- Did D breach that duty of care and expose C to the risk of physical injury?
- Did that exposure to physical injury subsequently cause C’s psychiatric illness? a. Does D satisfy factual causation? (but for test and exceptions) b. Does D satisfy legal causation? (NAI and remoteness)
- Do any defences apply?
- If yes to Q1-4 and no for Q5, this brings C within the ambit of D’s duty of care. D is liable to compensate C for the psychiatric harm suffered. [See negligence flowchart for comprehensive list of considerations] Property harm – Attia v British Gas (1987)
- Did D owe C a duty of care to not do x, and was it reasonably foreseeable that D doing X may result in damage to C’s property?
- Did D breach that duty of care and damage C’s property?
- Did C witness that damage to property that subsequently caused his/her psychiatric illness? a. Does D satisfy factual causation? (but for test and exceptions) b. Does D satisfy legal causation? (NAI and remoteness)
- Do any defences apply?
- If yes to Q1-4 and no for Q5, this brings C within the ambit of D’s duty of care. D is liable to compensate C for the psychiatric harm suffered.
C’s psychiatric harm cannot be linked to physical or property harm
D’s carelessness – Dooley v Cammell Laird & Co Ltd (1951)
- Did D owe a duty of care to C to do/not to do X, which if breached made it reasonably foreseeable that C would suffer from psychiatric harm as a result?
- Did D careless in carrying out that duty of care?
- Did C therefore suffer psychiatric harm from witnessing the incident that took place as a result of D’s carelessness? – Hunter v British Coal Corp (1999)
- If yes to Q1-3, D is liable to compensate C for the psychiatric harm suffered. Serious harm – McLoughlin v Grovers (2002)
- Did D owe a duty of care to C to do/not to do X?
- Did D breach that duty?
- Was the harm C consequently suffered so severe to an extent similar to the loss of
- D is therefore liable to compensate C for the psychiatric harm suffered. Secondary victims ● Did C suffer psychiatric injury as a result of witnessing/hearing about the incident? Loved ones
- Was X involved in a life-threatening incident?
- Did C witness the incident in some way?
- Did C have a close tie of love and affection with X? – Alcock v Chief Constable of South Yorkshire (1992) a. No specific set of relationships – proof to be submitted of close relationship
- Did C perceive the event involving X with unaided senses – that is to say, did they witness the event in person and not through a form of media? – Alcock v Chief Constable of South Yorkshire (1992)
- Was C’s psychiatric harm ‘closely connected in time and space’ with X’s injury/death in that the illness was triggered by the shock of witnessing the incident or the immediate aftermath of the incident? – Walters v North Glamorgan NHS Trust (2002)
- Was the event of X’s injury/death that triggered C’s psychiatric harm ‘sudden and shocking’? – Taylorson v Shieldness Produce (1994)
- If yes to Q1-6, D owed a duty of care to C and is liable to compensate C for the psychiatric harm suffered. Strangers ● General rule: D is not liable to compensate C’s psychiatric harm as it was not reasonably foreseeable. – Bourhill v Young (1943) ○ Possible exception: If the event is particularly shocking/gruesome – dicta in Alcock v Chief Constable of South Yorkshire (1992)
No defences apply
Consent ● Three types of consent: ○ (i) consent to specific acts - D will have a complete defence ○ (ii) consent to risky conduct - used when C consents to, or goes along with, some activity which poses a risk to C if D is negligent ( Morris v Murray ) ○ (iii) consent to exclusion of liability - UCTA 1977 and CRA 2015 will apply Illegality ● The defence of illegality applies where C is acting unlawfully when injured as a result of D’s negligence, or C’s unlawful conduct also contributes to the injury caused by D’s negligence ○ Exceptions : ■ There can be no recovery for losses resulting from the direct imposition of a criminal sanction ( Gray v Thames Trains ) ■ There can be no recovery if C’s illegality is sufficiently closely (‘ inextricably ’) connected to C’s harm (Lord Hoffmann in Gray v Thames Trains ) ■ There can be no recovery , which result from C’s unlawful conduct, if this would undermine the policy underlying the law C breached ( Patel v Mirza ) Contributory Negligence: ● The defence of contributory negligence is evoked when C’s own negligence contributed to the harm he suffered, which necessitates both negligence (failure to take reasonable care) and causation from both the D and the C ○ The defence works in accordance to the Law Reform (Contributory Negligence) Act 1945 : ■ S1 : Damages reduced ‘to such an extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’
Remedies
● Compensatory damages: loss of amenity, medical expenses, loss of earning capacity ● Aggravated damages not normally available for negligence
