British Journal of Nursing - Negligence, trauma and nervous shock

Abstract

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers whether nurses who have suffered psychological trauma because of the negligent handling of the COVID-19 outbreak can claim compensation

A recent report by the Institute for Public Policy Research has highlighted the impact on nurses' mental health of the COVID-19 pandemic (Thomas and Quilter-Pinner, 2020). Nurses have faced increased stress, anxiety, bereavement and trauma, resulting in mental disorders including depression and post-traumatic stress disorder.

Much of the psychological trauma has arisen from a negligent failure by health and social care bodies to provide adequate personal protective equipment (PPE). This has been exacerbated by poorly drafted guidelines on whether health and care workers should intervene without PPE, with different guidance from NHS bodies and trade bodies such as the British Medical Association (BMA) (2020) and the Royal College of Nursing (RCN) (2020) adding to the confusion. Nurses have had to endure the trauma of having to provide urgent care to a COVID-19 patient and the shock of a patient dying because emergency intervention was delayed while PPE was sourced and put on.

The law of negligence has long recognised that employers who breach their duty of care to their employees must pay compensation for the harm caused. Harm is not limited to physical injury and the nervous shock or psychological injury that results from trauma can be as debilitating as any physical harm.

Negligence

Negligence is best described as actionable harm and a successful claim has to show that:

There was a duty of care owed to the employee

The employer breached that duty by falling below the standard required of them in law

As a result of that breach of duty they caused harm to the employee.

Duty of care and nervous shock

When nurses seek compensation for nervous shock they face restrictions on when a duty of care is owed by their employing NHS body. These restrictions are, in part, due to a stubborn reluctance by the courts to accept that nervous shock can be as debilitating and long lasting as a physical injury.

As medical knowledge of the psychological effects of trauma have improved, judges have become more willing to recognise psychological injury as a distinct form of harm. However, the deeply embedded distinction in law between physical and psychological trauma still sees the courts imposing specific controls on recovery for nervous shock.

Psychological injury arising from nervous shock

Nervous shock describes the type of negligent situation that results in psychological injury. To succeed in a claim, the nurse must show that, as a result of negligence, they received a shock to the senses that resulted in a recognised mental disorder. No damages are awarded for grief, sorrow or emotional distress at an injury or death (Hinz v Berry [1970]), nor will a claim be successful if it arises from cumulative exposure to stressful situations (Hill v Chief Constable of West Yorkshire [1988]).

The courts have recognised post-traumatic stress disorder (Allin v City & Hackney HA [1996]), depression and anxiety (Anderson v Davis [1993]), personality changes (Brice v Brown [1984]) and pathological grief disorder (Re The Herald of Free Enterprise (1989)) as types of mental disorder that can arise after a nervous shock. These mental disorders are typically what nurses face as a result of a psychological trauma suffered during the COVID-19 pandemic (Thomas and Quilter-Pinner, 2020).

Primary and secondary victims

The case of Alcock v Chief Constable of South Yorkshire [1992] and the later case of Page v Smith [1995] led the House of Lords to review the law of negligence in relation to nervous shock. Their Lordships concluded that there were two distinct types of victim in cases of psychological injury, categorised as primary and secondary victims, and different rules are applied in each case.

Primary victims

Nurses suffering psychological injury because of nervous shock at work are likely to be considered as primary victims. Primary victims are those who are directly involved in the incident. A nurse will be recognised as a primary victim if they can satisfy one of four conditions:

The employer should have reasonably foreseen that the nurse might suffer personal injury because of their negligence—for a primary victim it is not necessary to consider whether psychological injury was foreseeable. It is enough that an injury of some kind is foreseeable (Page v Smith [1995]). In the case of a negligent failure to provide adequate PPE, it is foreseeable that a physical injury—contracting the virus—could occur and so a nurse who suffers nervous shock even though they did not contract the virus would still have a cause for claim in negligence

That the nurse has a reasonable fear of personal injury. The Courts held that, where a nurse is a primary victim and it is established that their employer was under a duty of care to avoid causing personal injury, such as a negligent failure to provide PPE, it is enough to ask whether it was reasonably foreseeable that the victim might suffer personal injury as a result of negligence. It was unnecessary to ask, as a separate question, whether an injury by shock was foreseeable (Page v Smith [1996])

They are involuntary participants in the negligent act—in Dooley v Cammell Laird [1951] a crane operator suffered shock when cargo on his crane fell into the hold of a ship onto his workmates due to a worn rope giving way. Similarly, a nurse who suffers trauma because a patient dies due to a negligent treatment delay caused by a lack of available PPE might be considered an involuntary participant in the negligent act and so be considered a primary victim

They are rescuers—at one time rescuers could claim for nervous shock for what they had witnessed because the law did not want to discourage people from helping the victims of accidents (Chadwick v British Railways Board [1967]). The rule for rescuers changed in White v Chief Constable of South Yorkshire [1999]. For a rescuer to be a primary victim they would need to be in the zone of danger, to put themselves at risk. A nurse witnessing a traumatic event due to negligent care and treatment and suffering a psychological injury as a result would be considered a primary victim in any claim for damages.

The advantage of being classed as a primary victim when claiming psychological injury as a result of nervous shock is that claims will be dealt with by the law of negligence in the same way as a physical injury, with no special rules, unlike the second category, which continues to be subject to judicial controls.

Secondary victims

Secondary victims are those who are not directly involved in a negligent incident but are witnesses or mere bystanders.

To succeed in a claim a secondary victim must:

Not be abnormally susceptible to psychiatric illness—this is tested by asking whether a person of normal fortitude would have been shocked by the incident and takes account of the relationship between the people directly affected by the incident and the secondary victim (Bourhill v Young [1943])

Have suffered psychological harm that occurred through shock—mental disorder caused in other ways such as coping with the death of a relative or caring for a loved one injured in an accident will attract no damages (Taylor v Somerset [(1993))

Be in physical proximity to the accident or its aftermath—that is to be present at the scene of the accident or arrive in the aftermath of the death or injury occurring (Alcock v Chief Constable of South Yorkshire [1992])

Have had a close personal or familial relationship with the accident victim—this rule considers the forseeability of the person suffering psychiatric injury. The courts accept the relationship between a parent and child and husband and wife as a close personal relationship. Mere bystanders would have no such relationship.

Conclusion

Nurses who suffer psychological injury caused by nervous shock arising from a negligent act, such a failure to provide adequate PPE, may have a claim in negligence. Nurses in such situations are likely to be regarded as primary victims of shock and the usual requirements for a negligence action will apply.

Key Points

Primary victims may sue for nervous shock in the same way as any other personal injury under the law of negligence

A claim for damages for psychological injury arising from nervous shock requires that the person be suffering from a recognised mental health problem that can arise after a nervous shock. No damages are payable for grief or distress

Negligent failure to provide adequate personal protective equipment (PPE) or negligent care or treatment arising from inadequate PPE could result in a nurse developing psychological injury that might have a remedy in negligence