Getting damages for pure psychiatric harm for secondary victims.
Let’s imagine you receive an email from a potential client who says he saw two of his sons and his brother get physically injured in a car accident. He wasn’t in the car himself. He watched the accident from his living room window because it occurred when his family members were pulling into the driveway to his house.
One of his sons died and his brother and the other son are now seriously injured. The potential client is now suffering from post-traumatic stress disorder. He claims this is because of seeing his family members in the accident, viewing one of his sons in the mortuary and the ongoing stress of looking after his ill son. He would like to claim damges, but he is not sure what the law is. What is the law? Could he recover damages even though he wasn’t involved in the accident himself?
Can a secondary victim claim damages for pure psychiatric injury?
Yes, as a witness to a dangerous event, the plaintiff can claim damages for pure psychiatric harm Hambrook v Stokes Bros [1925]. So, yes if we assume that the defendant was negligent, this potential client could establish a case for damages in negligence in English law. However, there are some requirements that this potential client would need to meet in court in order to be successful. Let’s explore these requirements.
Is the potential claimant suffering from a recognised psychiatric illness?
Firstly, he needs to demonstrate that he is suffering from a recognised psychiatric injury. Mere grief or sorrow is not sufficient McLoughlin v O’Brian [1983] and Attia v British Gas [1988]. He claims to be suffering from post-traumatic stress disorder. This was accepted by the courts in Alcock v Chief Constable of South Yorkshire [1992] and McFarlane v EE Caledonia [1994] so it should be accepted in his case.
He does need to know that he needs to demonstrate that the injury was developed as a result of shock caused as a consequence of reasonable fear held at the time of the incident. So, he would need to show that when he saw his sons and brother in the accident and when he saw one of his sons at the mortuary, he had reasonable fear which led to his injury. The courts will look at the facts and decide if the fear was reasonable McFarlane v EE Caledonia. [1994].
Stress is not a recognised psychiatric illness.
It is important for him to know that the court may not award damages for the stress he is experiencing from looking after his sick son. In Alcock v Chief Constable of South Yorkshire [1992] the House of Lords said damages will not be awarded when there is depression arising from living without a loved one, a stress-related illness arising from the wayward conduct of a brain damaged child, or when there is strain of caring for an injured spouse.
Later in Sion v Hampstead Health Authority [1994] no duty of care was owed because the father’s illness had not been caused by a single shocking event. The father’s illness was caused by watching his son for 2 weeks before he died.
Who is a secondary victim?
As the claimant was not involved in the accident but viewed it, he will be recognised as a secondary victim Page v Smith [1996]. He will therefore need to pass all three control mechanisms outlined in Alcock v Chief Constable of South Yorkshire [1992].
The Three Control Mechanisms
The three control mechanisms are the proximity of relationship, proximity in time and space and proximity of perception.
Let’s look at each one and discuss his likelihood of passing them.
Proximity of Relationship
The claimant has to establish a ‘close tie of love and affection’.
The law presumes that parent-child, spousal relationships and relationships involving people engaged to be married have close enough ties for the purposes of the law. However, in other relationships such as those between siblings and grandparent and grandchild, this is not presumed.
In such relationships, the claimant can rebut the presumption through demonstration of the closeness of their relationship. In our case, the claimant’s relationship with his sons would be sufficient. However, with regard to his relationship with his brother, he would need to convince the court that the relationship was one of ‘close tie of love and affection’. If he does not convince the court of this, he will not be able to recover damages in respect of the injuries caused as a result of seeing his brother’s injury. It is possible to successfully do this, as seen in McCarthy v Chief Constable of South Yorkshire Police [1996].
Proximity in time and space
This control mechanism is concerned with when the claimant saw the victim. The plaintiff does not have to actually be present at the scene of the accident. Viewing the immediate aftermath of the accident is sufficient to meet the test of proximity in time and space. This was confirmed by the House of Lords in McLoughin v O’Brian [1983] and later in Alcock v Chief Constable of South Yorkshire [1992].
In our case it appears the claimant saw the accident, so he should meet the test. However, if he hadn’t seen the accident but had only seen his loved ones afterwards, he could have possbily succeeded because in Galli-Atkinson v Seghal [2003] the Court said the aftermath extended to the moment when the claimant left the mortuary. Additionally, in McLoughlin v O’Brian [1983] the mother saw her family in the hospital two hours after the accident and this was sufficient for the courts. These cases could also be used to strengthen his claim for the viewing of one of his sons at the mortuary after the accident.
Proximity of perception
The client would also need to pass the control mechanism of proximity of perception. The law says the claimant must suffer psychiatric injury as a result of directly hearing or seeing the accident or its immediate aftermath.There is no liability if the claimant is told about the accident by a third party Ravenscroft v Rederiaktiebolaget Transatlantic [1992].
An interesting case is Palmer v Tees Health Authority [2000]. The claim was dismissed because the mother saw visions and had nightmares about her daughter’s abduction before the child was found. The body was found 3 or 4 days after the abduction.
The Court of Appeal said the mother did not meet the test for promixity of perception because prior to her mental distress she had no appreciation of the sight or sound of the horryifying event. In other words, her shocks occurred before she found out her daughter was killed. It was not the viewing of her dead daughter which caused her shocks, but her imagination of what could have happened to her.
However, in W v Essex County Council [2001] the House of Lords declined to strike out the claim on the basis that the parents had only been told of the abuse their children endured but had not actually witnessed it.
In Alcock v Chief Constable of South Yorkshire [1992] the House of Lords denied that the experience of watching the events live on TV was equivalent to direct perception of those events.
Our client did see the accident himself, he did see it before developing psychiatric injury and he did not view the accident on TV or hear it over the radio, so he should pass the control mechanism of proximity of perception.
For a visual and audio explanation of the issues discussed in this blog, watch this video.