How does a primary victim get damages for pure psychiatric harm in English tort law?

Imagine a potential client sends you a message. He says he was almost in a road accident. A huge truck almost hit his car and he swerved onto the pavement. He wasn’t physically injured but he has since been suffering mentally. He wants to start a claim for negligence. Even though he was not physically injured, does he have any chance of establishing a claim for damages in negligence in English law?

In English law it is possible to establish a claim for negligence for physical injury, psychiatric injury which is a consequence of physical injury and for psychiatric injury only. So yes, this client could potentially establish a case for damages in negligence.

Let’s assume the defendant in question is negligent and let’s focus on what the client would need to do in order to establish a case against this negligent defendant.

Firstly, it is important to note that this type of client would be classed as a primary victim and the rules that will be discussed in this blog will be relevant to primary victims only.

Who is a primary victim?

In Page v Smith [1996] the House of Lords approved of the definitions of primary and secondary victims which were outlined in the earlier case Alcock v Chief Constable of South Yorkshire [1992].

According to the Lords, while secondary victims are those who are not directly involved in the incident, but are affected by what they see or hear, primary victims are those involved in the incident. So, considering this client did not witness the incident, but was actually involved in it, he would be classed as a primary victim.

How does a primary victim establish liability in negligence for pure psychiatric harm?

Firstly, as confirmed in McLoughlin v O’Brian [1983], Attia v British Gas [1988] and Reilly v Merseyside Regional Health Authority (1995) a duty of care is not owed to the plaintiff if they become upset or show normal human emotions in reaction to a dangerous event.

Therefore, mere grief or sorrow will not count.

For example, when the plaintiff claimed that they were ‘shocked and shaken up’ as a result of their involvement in a road traffic accident in Nicholls v Rushton (1992) it did not lead to a duty of care arising in negligence.

This means the client will need to demonstrate that he is suffering from a recognised psychiatric illness.

What is a recognised psychiatric illness?

Examples of recognised psychiatric illnesses that the courts have accepted as giving rise to a duty of care include anxiety neurosis, as seen in Chadwick v British Transport Commission [1967].

Others include reactive depression, a personality change and post-traumatic stress disorder (PTSD), which was recognised in cases such as Alcock v Chief Constable of South Yorkshire [1992], McFarlane v EE Caledonia [1994] and Hegarty v EE Caledonia [1997].

Did the injury arise from a ‘reasonable fear of injury to oneself’?

Secondly, in addition to demonstrating that they suffered a recognised psychiatric illness, the plaintiff must show that the illness they suffered arose from a ‘reasonable fear of injury to oneself’ Dulieu v White & Sons [1901]. Therefore, the courts want the claimant to show that they were in a dangerous place or event, that they feared that they were going to be injured while there and that as a result of the fear they developed the psychiatric illness.

It is important to note that the claimant does not have to demonstrate whether it was physical or psychiatric injury that they were in fear of. Following the House of Lords decision In Page v Smith [1996], in cases involving primary victims, the claimant simply has to demonstrate that they were in fear of personal injury, which includes both physical and psychiatric injury. The Lords made clear that in cases involving primary victims, the courts should simply ask if the defendant could reasonably foresee his actions causing personal injury- not physical or psychiatric. So, if the defendant in this case answers ‘yes’ to this question, it is irrelevant if it is psychiatric or physical injury which is sustained by the claimant in our scenario.

The potential client was actually in the place of danger when the incident occurred. However, in some cases if the claimant was not in the place of danger when they developed their fear of personal injury, they may still be able to establish that duty of care is owed. If they can demonstrate that their psychiatric illness developed as a result of viewing or hearing the aftermath of a dangerous situation, the courts may still establish that a duty of care was owed to them. For example, in Young v Charles Church (1997) the plaintiff was not aware of the physical danger until after the accident had occurred and he suffered psychiatric injury not as a result of any fear of his physical safety but as a result of witnessing the horrific aftermath of his workmate being killed.

Was the fear reasonable?

Thirdly, any client aiming to receive damages for negligence will need to show that the fear they held was reasonable. It is not enough that it is genuine fear, it must be reasonable, McFarlane v EE Caledonia Ltd [1994]. Whether or not it is reasonable is a matter for the court to decide.

However, reasonableness is only part of the test. In McFarlane v EE Caledonia [1994] the plaintiff, a painter on an oil rig in the North Sea was an employee of the defendants who owned and operated the oil rig. One night while in his bunk bed some 550 metres away he could hear explosions and fire on the rig. This incident known as the Piper Alpa disaster led to the death of 164 men, but he was not physically injured himself. While being rescued by the support vessel, the plaintiff got as close as 100 metres from the fire because the support vessel needed to move in towards the fire to try to give assistance. The plaintiff argued that as a result of the incidents that occurred while he was in his bunk bed 550 metres away and his witnessing the incident while on the vessel, he developed post-traumatic stress disorder (PTSD).

At first instance, the judge said a duty of care was owed to the plaintiff as he was a participant in the event, he had been reasonably in fear of his life and safety and his injury was a consequence of the shock caused by this fear.

Reasonable fear may not be sufficient

However, on appeal the Court of Appeal confirmed that this was not sufficient to establish a duty of care in such cases. They said that even if the plaintiff reasonably, but mistakenly believed his life and safety were in danger, the court also needed to be convinced that the defendant ought to have reasonably foreseen that the injury could be caused to the plaintiff.

Therefore, a duty of care is not automatically established because the plaintiff reasonably feared for the safety of their life.’ The courts will also ask the following question, ‘Should the defendant have reasonably foreseen that the injury could be caused to the plaintiff?’ If the answer to this question is also ‘yes’, only then a duty of care will be established.

For a visual and audio summary of the issues discussed in this blog, watch this video.