Tort Law - Psychiatric Harm

Due to societal changes in the perception and understanding of mental illness there is now less reticence by the courts to award damages for psychiatric harm. Nevertheless this type of injury must be recognised medically and go beyond mere grief. Claimants are split between primary and secondary victims. A primary victim is one who suffers psychiatric harm after being physically injured/put in fear of injury (Page v Smith [1996]) but this zone of danger is interpreted in a narrow fashion (Rothwell v Chemical & Insulating Co Ltd [2006]). The definition has been expanded in some circumstances to include, for example, rescuers (White v CC of S Yorkshire [1999]). Secondary victims are witnesses to an injury/situation where a person is put in fear of injury but have to met four criteria before being able to successfully claim: Not be overly susceptible to psychiatric harm Bourhill v Young [1983] Jaensch v Coffey [1984] Have suffered the harm through shock North Glamorgan NHS Trust v Walters [2002] Have been in physical proximity of the accident/aftermath “direct, immediate perception” – Alcock v CC of S Yorkshire [1992] Have enjoyed a close personal/familial relationship with the victim Extended to fiancés in Alcock but not to rescuers – White v CC of S Yorkshire [1999]. Certain relationships create a duty of care as regards psychiatric harm: Commercial relationship: Attia v British Gas [1988] Solicitor/client: Al-Kandari v Brown [1980] Schools/children: X v Bedfordshire CC [1995] Doctor/Patient: Re. Organ Retention Group Litigation [2004] The employer/employee relationship can give rise to a duty but it is dependent on the context and the task that is being undertaken. An important series of cases on the subject of psychiatric harm involved the Hillsborough disaster and the litigation that followed. Physical harm is normally self-evident but requires a context specific inquiry into social perceptions of damage (MacFarlane v Tayside Health Board [2000]). Pure economic loss is entirely financial in nature.