Psychiatric Harm

Discussing the significance of “Duty Concept” would be incomplete if we skip the way it has created a boundary within the realms of both the harms that can happen to a person i.e. “physical and psychiatric harm”. By virtue of this now the psychiatric harms are recoverable.

When concerned with cases where the subject matter of the case involves “psychiatric harms”, the initial step is to find out whether the victim is primary or secondary. I think it is necessary to explain both the types of victims before we move into the details. The person shall be treated as a “primary victim” only if he had a direct involvement in the harmful act and has been a victim of physical injuries and was in a state of fear of getting injured due to the accident. A person shall be treated as a “Secondary Victim” if he had been a victim of mental disturbance due to watching the happening of an accident or either getting to know about the accident which happened to someone else. Specifically dealing with the “primary victims”, legal precedent establishes that a person who had been injured physically or put in fear of injury, as established in “Bell v Northern Railway”, is entitled to seek recovery for both the psychiatric and physical aftermath of the incident, provided that causation and remoteness of damage criteria are met. It is worth mentioning that “Lord Lloyd” has emphasized the foreseeability of injury, while expressing his views and stating that it suffices for any form of injury to be anticipated, during the case of “Page v Smith”.

Even though it is common that this principle has faced severe criticism, mainly by Lord Goff during the case “White”, yet it still stands as legal doctrine.

Now, in this essay, we shall be heading towards the analysis for finding out if this differentiation is justifiable or not? The commonly used viewpoint states that while putting an end to the concept of “secondary victim”, we should recognize the fact that within the several kinds of injuries, one is the psychiatric as well. Now it could be contended that this perspective might increase the likelihood of extensive litigation, one could implement restrictive measures such as mandating evidence demonstrating the severity of the psychiatric injury and resulting in a clear causal link. But during “White v Jones” all the reasoning which was upon the views mentioned above were turned down by HL. While attempting to justify the differences, 4 reasons have been formulated by both “Lord Hoffman and Lord Steyn”. They emphasized upon considering mental harms a newer section of liability. As per the first one, it was stated that the duty for recognizing the kinds of mental harms as they have mentioned in the laws is one of the most complicated legal tasks and it usually results in a need for help by health experts. Additionally, it has been stated in the second reason that there exists the concern that litigation can inadvertently

discourage rehabilitation efforts, as the anticipation of seeking damages may hinder the claimant's recovery progress. As far as we are concerned with the second, it can be stated that it can even be applied in cases where we are dealing with “physical harm” and the case doesn’t involve any question for turning down the “duty of care”. The second last reason was considered the “floodgates argument”. For this reason, it was stated that a relaxation of the specific regulations dictating the eligibility for recovering damages for psychological harm would significantly broaden the scope of individuals eligible to seek damages in tort. A possible way by which we can turn down this reason is by applying some sort of limiting mechanisms such as necessitating a causal link, while also being aware of the fact that the expense of litigation could continue to dissuade people from resorting to legal action. The last reason states that potential defendants might face disproportionate liability risks, specifically in cases where tortious conduct involves instantaneous lapses of concentration, such as in a motor vehicle accident.

Now we shall discuss a substitute viewpoint which is shared and supported by many people. As per this view, instead of treating “psychiatric harms” separately we should treat them the way we treat “physical harms”. Once this viewpoint gets applied there won’t be an emergence of a duty of care that wouldn’t give rise to any challenge, and hence liability would subsequently hinge upon matters of fault, causation, and remoteness. It is quite evident that while following the above mentioned steps, the progress of the majority of the cases would have been halted during the upcoming stages. But this test is not considered a test to determine “psychiatric harm”. It is noteworthy that during the case “Alcock v Chief Constable of South Yorkshire Police” where it was stated by Lord Oliver that the overarching policy of common law was mainly aimed at to restrict negligence actions to the primary victims of accidents. Therefore, this approach might be justified as a rationale for maintaining the distinction. It can be concluded as any pursuit of damages by “secondary victims” is inherently considered as exceptional.

The further scrutiny of the standards for psychiatric harm is warranted to evaluate whether the existing distinctions can be justified. As per the initial requirement, it is stated that the claimant shouldn’t have been exceptionally prone to the specific type of psychiatric harm which we are concerned with. However, this standard might become a target of criticism because of potentially unduly limiting people who have lawfully been through psychiatric illness. Nonetheless, it still acts to shield people from liability for harm that is not reasonably predictable. Furthermore, as per the “thin-skull rule” it is stated that if the claimant illustrates that a reasonable individual would have been deeply affected, they are entitled to full recovery for the harms. The second requirement is that the psychiatric harm must have resulted due to some form of shock.

The 3rd requirement states that it is highly crucial for the claimant to be close, physically, to the location where the accident took place. A clear illustration of this can be seen in the “McGloughlin case”, which involved one of the plaintiff's children perished in an accident where vehicles collided and it also inflicted injuries upon two of her other children and her spouse. The moment the mother of the children involved in the accident, plaintiff, was informed of the unfortunate event, she rushed to the hospital to see her family members who survived. In this case, while stating his viewpoint Lord Wilberforce stated that the scene as witnessed by her when she reached the hospital were deemed "distressing in the extreme" and were capable of eliciting effects beyond mere grief and sorrow. Consequently, it was concluded by the House of Lords that she had a viable claim for nervous shock. This entire incident was considered as an expansive element, by Lord Wilberforce, for the rule as per which the plaintiff does not watch or hear the accident but rather reaches on the sudden results of it. Therefore, it’s quite evident that with the law acknowledging liability in such cases, courts seem to increasingly award recovery for psychiatric injury, potentially blurring the distinction. Nonetheless, a clear cut difference remains, and judgments based on circumstantial factors may appear unjustifiable. For instance, during the case “Alcock”, Lord Keith went on to permit the claims from people who witnessed events through television reports but dismissed claims from those who heard radio broadcasts. It might look unjustifiable to adjudicate cases on such a basis, whereby one claimant may receive significant recovery while another receives literally nothing, despite the fact that both suffered the same harm, solely due to the medium through which the shock was experienced.

In “Graetorex v Greatorex” court considered if a person causing self-inflicted injuries owed a duty of care to avoid psychiatric harm to a third party. This difference is questionable as per the critics, as psychiatric being significant, if not more so, than physical harm, meaning that defendants should have a duty to prevent both types of harm.

Claimants must have a close family relation with the one who suffered from the accident. During “McLoughlin”, it was emphasised by Lord Wilberforce that only the closest personal connections would qualify, while during Alcock, the HL turned down the claims from various relatives and friends of the deceased. Even though this difference might seem unjustifiable, Lord Keith argued that claimants could establish sufficient closeness through appropriate evidence. Hence, while restricting the claims for psychiatric harm, this difference doesn’t outrightly exclude people based on the narrowness of their ties, such as a mother's connection with her son. Similarly, it isn’t possible for a married couple, experiencing prolonged separation, to make a claim for their closeness, this seems reasonable. Furthermore, while bystanders lack personal ties and are rarely able to recover for psychological harm, Lord Keith during Alcock acknowledged that they aren’t

completely barred. If the conditions of a nearby catastrophe were exceptionally horrific, the court would uphold their claim.

The important difference arises in situations where the claimant and defendant have a pre-existing relationship, specifically when the defendant is deemed to have taken on a responsibility to safeguard the claimant from the risk of psychiatric harm, as illustrated by “Attia v British Gas”, highlighting the inherent complexity and ambiguity in distinguishing between victims as seen in “W v Essex County Council”.

Hence, there is a logic for each difference leading to the principles for “psychiatric harm cases”. Irrespective of the potential backlash and perceived unjustifiability, there are recognized advantages to certain differences , as stated by “Lord Steyn” during “White”, with suggested changes primarily focusing on eliminating the most contentious distinctions and potentially applying the same criterion for psychiatric harm as those used in cases of physical harm.