Common Law in Regards to Psychiatric Injury

Gentlemen, on 15 April 1989, there was a terrible disaster at Hillsborough Stadium in Sheffield football. The pressure of the masses trying to land 95 people crushed on the terraces are killed and many injured. On that day the plaintiffs (respondents to this appeal) members of the South Yorkshire Police Force were on duty at the stadium or elsewhere in Sheffield. Everyone was involved in some way in the terrible consequences. Two helped to carry the dead and the dying. Two sought in vain to give CPR to those who had laid on the floor. Support in the hospital morgue. As a result of their experience, the applicants have made what was diagnosed as post-traumatic stress disorder, a medically recognized psychiatric illness has been suffered. The symptoms have affected their ability to work and personal life. You damages for negligence against Chief Constable of South Yorkshire and two other defendants. There were of course many people in the stadium that day, even trying as best they could to help the victims: other police officers, first assistants, paramedics and members of the public. Some of them, along with grieving relatives and friends have also developed psychiatric disorders. The claims of some of the relatives were [of your Lordships House in Alcock v. Chief Constable Of South Yorkshire in 1992 included] 1 AC 310th For reasons that I discuss, they were all rejected. But, say the plaintiffs in this appeal that the police are in a different position. First, they were ... Staff of the Chief Constable and they claim that the employment created obligations which are not compared to strangers. Secondly, they were present and assisted in the disaster and not just passive and helpless bystanders [that they] were rescuers. ... It is admitted that the disaster caused by the negligence of persons for which the accused was caused vicariously liable. The only question is whether, under such circumstances the law allows the recovery of compensation for the type of injury, having suffered by the applicants. Compensation for personal injury caused by negligence is usually recoverable if the defendant could have reasonably foreseen as a result his behavior such violations. But the common law has been reluctant to equate psychiatric injury with other forms of assault.

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For a long time in this century, it remained unclear whether the basis was for a liability for the emergence of a recognized psychiatric disorder simply a question of foreseeability of this type of injury in the same manner as in the case of injury. The decision of the House of Lords in Bourhill v. Young [1943] AC 1992 seemed to many to combine what is in theory a simple foreseeability test with a robust wartime view of the ability of the ordinary person to horror and sadness, without suffering ill effect. Cases soon afterwards, as King v. Phillips [1953] 1 QB 429, followed this approach, the treatment predict how an actual question, but hold potential liability within narrow limits by a very restrictive view of the circumstances in which it was foreseeable that psychiatric injury might occur. But such decisions are criticized as unrealistic. Everyone knew that some people suffer from mental illness as a result of accidents have experienced stressful in which other people, especially near relatives, were involved. Some judges, sympathetic to the plaintiff in the particular case, used the opportunity as a fact that had psychiatric injuries are real predictable. This made it difficult to explain why plaintiff had failed in other cases ... In Alcock v. Chief Constable of South Yorkshire in 1992] [1 AC 310 ... the House decided that the liability for psychiatric injury should be by what are Lord Lloyd of Berwick (in Page v. Smith [1996] AC 155, 189) later as a limited "control", that is, more or less arbitrary conditions the plaintiff had a satisfying and which were intended to keep liability within what is considered acceptable limits. Alcock was ... A case that has arisen from the Hillsborough disaster. The applicants were people who had seen the events from other parts of the stadium or on television or heard it from others and then found that their relatives were among the dead. It was for the purposes of the complaint must be assumed that these experiences have caused them psychiatric injury. The house has been some additional conditions to be satisfied for a successful claim. I tell them in summary form, which I think is sufficiently accurate for the purposes of the present discussion but it can be used for other purposes require qualification and does not purport to be a complete description. (1) The applicant must be close ties of love and affection with the victim. Such bonds may be suspected in some cases (shown eg spouse, parent and child), but must otherwise. (2) The applicant must present in an accident or immediately thereafter. (3) The psychiatric injury must not have been in hearing about them through direct perception of the accident or its immediate consequences and caused by someone else. The result of these various control mechanisms, was that none of the Hillsborough relatives was entitled to recover. has reached the position that [the law as a result of Alcock v. Chief Constable of South Yorkshire 1992] 1 AC 310, has not won universal approval. The control mechanisms are as drawing distinctions which the ordinary man would be too difficult to understand has been criticized. Jane Stapleton [The limits of liability (1994)] has said that a mother, the psychiatric injury suffered by that child's mutilated body in a mortuary could, "why the law provisions of their child's blood to dry to wonder was an action" . Even the spectacle of a plaintiff who has ... psychiatric illness suffered in consequence of his brother's death or injury, check with cross-legged on the degree of their bonds of love and affection and would then perhaps contradicted by evidence of a private investigator, might not be to everyone's taste ...

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But ... It is too late to go back to the control mechanisms as indicated in Alcock. As long as there is no change of legislation, the courts must have to live with them, and any judicial developments, to consider them. The control mechanisms were apparently never intended to apply to all cases of psychiatric injury. They consider that the injuries as a result of death or injury was caused, suffered ... by someone else. In Page v. Smith, Lord Lloyd of Berwick described as a plaintiff as "secondary victims" who "was in the position of a spectator or bystander. He described the plaintiff in this case (who had psychiatric injury as a result in a minor accident suffered engine) as the "main victim" who was "directly involved in the accident and also in the range of foreseeable injury". ... A majority of your Lordships held that foreseeability of injury enough, a claim was held at the psychiatric injury which caused the accident. This question does not arise in this case, but the division into primary and secondary victims was discussed. The plaintiffs say they are primarily victims, because they "were spectators or passers-by." The defendants say that the plaintiff secondary victims because they were not "in the area of foreseeable injuries" were. ... Essentially ... The plaintiffs make two distinctions between their position and that of spectators or passers-by. The first is that they [were employees] they were therefore a special obligation to, [representative of those] responsible, reasonable care to not expose them to unnecessary risk of injury, whether physical or psychiatric. Second, the plaintiff ... [Been] ... Rescuers, who, it was said, ever to qualify as primary victims. Employee ... I will first consider the claim to primary status under the employment ... The liability of an employer to his employees for negligence, either directly or agents, is not a separate tort with its own rules. It is an aspect of the general law of negligence. The relationship between employer and employee, the employee as a person to whom the employer owes a duty of care. But it says nothing about the circumstances under which he is liable for a certain type of injury. has suffered for it, one has the general law on the nature of the injury, looks ...

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If the employment one reason why an employee for damages for psychiatric injury in cases in which he otherwise a secondary victim and not the rest Alcock control mechanisms will be? ... In principle ... I do not think it would be fair to give police officers the right to a larger claim merely because the disaster was caused by the negligence of other policemen. In cases where the injuries were caused, I do not think this is a relevant difference, and whether it impacts should be given, the law would not like cases are treated equally. I must therefore determine whether the authorities require a contrary conclusion. And to check into it, it is important to remember, as I said earlier that they do not simultaneously statements of the law but represent legal thinking at different points in a half century of uneven development.

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... In Robertson v. Forth Road Bridge Joint Board [1995] SC 364 [a Scottish case] Lord Hope ... rejected an application for psychiatric injury by employees who had witnessed the death of a fellow employee in the course of, employed at the same workplace. I respectfully agree with the reasoning of my noble and learned friend, I for one reject the employment relationship as in itself a sufficient basis for liability. Rescuers ... Rescue forces may without difficulty in the general principles of the law of negligence can be accommodated. There are two issues that may arise. The first is whether injury to the rescuer was foreseeable. There is usually no difficulties in operation if it is foreseeable that someone would be put in danger, it was foreseeable that someone would go to find it or try to save him or help in other ways, it in his misery. The second question is [causality] - whether the voluntary act of the rescuer, or seeking help on their own life in danger negatives the causal connection between the original negligence and his injury. Once again, the courts also have little difficulty that such a person act from a sense of moral obligation, does not make the choice that would be necessary to eliminate the causal effect of the defendant's conduct had ... The cases on rescuers are therefore quite simple illustrations of the application of the general principles of foreseeability and causation to particular facts. There is no authority which decides a savior in a special position in terms of liability for psychiatric injury. I am not at all logical reason why the normal treatment of rescuers on the questions of foreseeability and causation to the conclusion, should that for the purposes of liability for psychiatric injury, it has a particular treatment should lead be given as the primary victims, if they were not in the range of foreseeable physical injury and mental injury was the participation of witnesses or the consequences of accidents which caused death or injury to others.

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I would like would sue in passing that I do not believe that someone should not be able to recover to be caused by negligence, in circumstances in which he justified as a rule, for injury, we say that just because his job from him demanded that lead to the risk of such injury. Such legislation, the so-called "Fireman's Rule gains in some of the United States, was rejected by your Lordships' House, but in Ogwo v. Taylor [1988] 1 AC 431st ... The question here is quite different. It is not whether a policeman in the case should be excluded, in which he normally would have a right of action, but whether it should be liable for rescuers and aid workers, as its a class. And on the question of whether liability should be extended for psychiatric injury of such a class, I think it is legitimate, given the fact that in the nature of things, many of their members from occupations in which they are trained and required be to run such risks and to appropriate services if they should suffer such injuries. Of course, I feel great sympathy for the claimants, as I for all those whose lives from that day on Hillsborough branded. But I think that fairness requires that your Lordships should reject. I also have the draft of the speech of the noble and read my learned friend, Lord Steyn and tell me his reasons for the same price, which seems to me essentially the same as my own. So I want to ... dismiss the complaint. Lord Steyn:

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Political considerations and Psychiatric Harm Political considerations have certainly won a role in shaping the law on collection for pure psychiatric harm. The law imposes different rules on the recovery of compensation for physical injuries and psychological damage. It is law that bystanders at tragic events, even if they suffer foreseeable psychiatric injury are not entitled to recover damages: Alcock v. Chief Constable of South Yorkshire Police in 1992] [1 AC handled 310th The courts have considered the political reasons against the admission of such claims as compelling. It seems reasonable to ask why such different rules were created for the recovery of the two types of damage. In his Casebook on Tort, 7 Edition. Weir gives the following account (at 88): "... It is equally no doubt that the public ... a distinction between the neurotic and the cripple, between the man, his concentration and the man his leg loses, loses. It generally takes the view that it is less to worry when he is beaten, is that trauma to the mind less than lesion to the body. Many people would say that, consequently, the duty not to injure themselves foreigners is greater than the duty not to disturb them. The law has the distinction as one would expect, reflects not only by refusing damages for grief altogether, but by granting recovery for other psychological damage late and reluctantly, and also then only in very clear cases. in tort, does include clear - in the vicinity of the victim, near the accident near the defendant. I have no doubt that public perception plays an essential role in the development of this branch of the law. But today we must accept that the medical reality could be more serious psychiatric harm than physical damage. It is therefore necessary to consider whether it can justify other objective considerations, the different rules for the recovery of compensation for physical injuries and psychological damage. And in my view it would not be sufficient on the basis that it continue not specified policy considerations at stake. If, as I believe there are such considerations, it is necessary to explain what are the political considerations, allowing the validity of my assumptions are critically examined by others. My impression is that there are at least four characteristic features of claims for psychiatric damage, which may take into account in combination for the different treatment. First, there is the complexity of drawing the line between acute pain and psychiatric harm ... The symptoms may be the same. But there is a greater diagnostic uncertainty in psychiatric injury cases than in cases of bodily harm. The classification of the emotional injury is often disputed. To determine psychiatric harm, expert advice is required. This involves the appointment of the consultant psychiatrists on both sides. It is a costly and time consuming exercise. When claims from a psychiatric damage were treated as generally on par with physical injuries, it would have consequences for the administration of justice. On its own this factor not be entitled to great weight and should not outweigh the considerations of justice support genuine claims in respect of pure psychiatric injury. Second, there have experienced the effect of extending the availability of compensation to potential claimants, the gruesome events. I do not have in mind or fraudulent misrepresentation. In general, it is should be for the administration of justice to debunk possible such claims. But I am thinking of the unconscious effect of the prospect of compensation for potential applicants. Where there are generally no prospect of recovery, as in the case of injuries sustained in sport does not appear to impose too many psychiatric damage. On the other hand, in case of accidents, where there is often a prospect of recovery of compensation, psychiatric damage is encountered again and again and often lasts until the process is claimed compensation to an end ... The litigation is sometimes an unconscious barrier to rehabilitation. It is true that this factor is already present in cases of physical injuries with concomitant mental suffering. But it may be a more important role in cases of pure psychiatric injury to play, especially when the categories of potential recovery increased. For my part, this factor can not be dismissed. The third factor is important. Enlarge the lifting or easing of the special rules for the recovery of damages for psychiatric harm significantly the class of persons, damage would be able to recover in tort. It is true that compensation for psychiatric harm routinely, if the plaintiff has suffered some physical damage award. It is also known that psychiatric harm is sufficient from the collection of physical harm due to: Page v. Smith [1996] AC 155th These two principles are not surprising. built in such situations are restrictions on the classes of plaintiffs to sue who can: the requirement of the infliction of injury or some feared to have, brings an element of immediacy, which restricts the class of potential plaintiffs. But in cases of pure psychiatric harm, it may be a large class of plaintiffs involved. Fourth, the imposition of liability for pure psychiatric injury in a variety of situations that a burden on the defendant's liability in proportion to the tort involved, perhaps momentary lapses of concentration, for example, can result in a car accident. The broad scope of potential liability for pure psychiatric harm is illustrated not only by the rather unique events of Hillsborough, but also from the accidents with trains, buses, and the daily life of serious collisions of vehicles that can run in all the gruesome scenes. In such cases, it can be supported too many claims for psychiatric harm to those who have experienced, and in some ways at the scenes of the tragic events ... The police claim In the present case, the police officers more than just spectators. They were all on duty at the stadium. They were all involved in assisting in the exercise of their duties following the terrible events. And they have suffered debilitating psychiatric harm. The police, therefore, argue, and are entitled to argue that the law is to compensate for the injustice that caused harm to them. This argument can not be lightly dismissed. But I am convinced that recognition of their claims would substantially expand the existing categories in which compensation for pure psychiatric injury can be restored. Also ... the award of damages to these policemen sits uneasily with the denial of the claims of the surviving relatives by the decision of the House of Lords in Alcock. The case law To understand how the law stands, it is necessary to follow the outline of its development. In Dulieu v. White & Sons [1901] 2 K.B. 669 The Court of Appeals announced a small and relatively simple rule: psychiatric injury was actionable only if it were taken up by the applicant reasonably fear for his safety. But in Hambrook v. Stokes Brothers [1925] l.K.B. 141 The Court of Appeal dismissed the restriction in Dulieu v. White & Sons in favor of a mother, the psychiatric injury suffered as a result of a fear of injury their child placed, which they just parted. The mother was described as "courageous and dedicated her child" and was allowed to recover. The next development step was the decision of the House of Lords in Bourhill v. Young [1943] AC 92 ... favor [ing] the limitation of liability for psychiatric injury in the field of physical damage. But the status of Hambrook v. Stokes Brothers remained unclear. Then came the decision in McLoughlin v. O'Brian [1983] AC 410th The leading decision of the House of Lords is Alcock (1992). In this case, the rule was that only parents and spouses could for psychiatric damage as a result of witnessing a traumatic event recover. In the group of applicants Alcock, for the psychiatric injuries that included sued from the events in Hillsborough relatives who were in the stadium. The House rejected all claims and found that a person suffering reasonably foreseeable psychiatric illness as a result of another person to death or injury can not be recovered damages if it can meet three requirements, namely: (i) that it has a close combination of love and affection with the person killed, injured or endangered, (ii) that he was close to the incident in time and space, (iii) that he perceived the incident directly, rather than, for example, hearing about it from a third person .

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The decision of the House of Lords in Page v. Smith [1996] AC 155 was the next important development in this branch of the law. The plaintiff was directly involved in a car accident. He was within the range of possible injury. As a result of the accident he suffered from chronic fatigue syndrome. ... Lord Lloyd of Berwick was a distinction between primary and secondary victims: Lord Ackner and Lord Browne-Wilkinson agreed. Lord Lloyd said that a plaintiff who was in the range of foreseeable injury was a primary victim. Mr Page fulfilled this requirement and could in principle re-compensation for psychiatric loss. From my perspective, it follows that all other victims, who suffer pure psychiatric injury secondary victims and must satisfy the control mechanisms in Alcock. ... The decision of the House of Lords in Page v. Smith was clearly intended to harm in the context of pure psychiatric, to narrow the spectrum of potential secondary victims. The argument of Mr Lloyd and the Law Lords who agreed with him, is based on the concerns over an increasingly wide circle of applicants. The employment argument ... The rules that apply when an employee brings a sustained action against his employer for damages to his workplace, the rules of tort law. One is therefore thrown back to the ordinary rules of law of torts, which include restrictions on the recovery of compensation for psychiatric damage. This type of implementation, therefore, not previously the case to the police ... The rescue argument

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The law has long been the moral imperative of encouraging citizens to rescue persons in danger to be recognized. Those who selflessly put themselves at risk to save others during an emergency, favored by the law. A rescue attempt to save someone from the risk can be regarded as predictable ... If a rescuer is in a rescue attempt, a plea of non fit injuria volenti will not help the offender violated. A plea of contributory negligence is usually a short process is done. A rescuer in danger of the act is not treated as a novus actus intervene for itself. ... Here is the question: Who is in terms of pure psychiatric harm sustained recovery as the savior? ... The particular problem ... is that it is undisputed that none of the four police officers at any time exposed to personal danger, and no one thought he was so exposed, is ... To include the concept of the savior within reasonable limits, for the purpose of recovering compensation for pure psychiatric harm the plaintiff must have at least the threshold requirement that he set an objective of the danger or reasonably assume that he doing so. Without such a limitation would be the unedifying spectacle that, while grieving relatives is not allowed, as in Alcock, ghoulishly curious spectators, who in any way assisted in the peripheral after a disaster again, can recover. For my part, to limit the actual danger or is in custody, which means close in this particular situation. In my opinion it would be an unwarranted extension of the law on the claims of the police officer will confirm. I would dismiss the argument in this section. So far and not further ... In my view, is the only sensible general strategy for the courts, so far no further, and say. The only sensible way to treat the pragmatic categories as reflected in relevant decisions, such as Alcock and Page v. Smith as settled at the time but by and large, no expansion or development in this corner of the law to leave it to parliament. In reality, there is no refined analytical tools which enable the courts to draw lines in the form of compromise in a way that is coherent and morally defensible, it is. It must be left to Parliament to undertake the task of a radical reform.

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