The law of negligence has long recognised that individuals who breach their duty of care by carelessly harming another must pay compensation for the harm caused (McCulloch v Forth Valley Health Board [2023]).
In cases where the claimant is seeking compensation for psychiatric injury or nervous shock further restrictions on when liability arises apply. These restrictions reflect the concerns by the courts of opening the floodgates to increased claims in cases where a general duty of care to prevent psychiatric injury can be applied. Fear of opening the floodgates to such claims is grounded in a concern that psychiatric injury might occur not only to the victim of negligence but also to onlookers, that is, family members who are told of the incident, and even rescuers and members of the health and emergency services (Alcock v Chief Constable of South Yorkshire [1992]).
Compensation for psychiatric injury
Nervous shock used to be the term used to describe psychiatric harm that arose as result of another's negligent action. It is now more accurate to refer to such harm as a psychiatric injury, but the nervous shock does reflect the law's approach in these cases.
In English law, no damages are awarded for grief, sorrow or emotional distress at an injury or death (Hinz v Berry [1970]). Relatives cannot claim compensation for grief and distress on discovering that a loved one has been killed in a road traffic collision that was the fault of a third party. Similarly, in Reilly v Merseyside RHA [1995], an elderly couple trapped in a hospital lift for 90 minutes were unable to claim for the psychological distress they had suffered.
To succeed in a claim the person must show that they have received a shock to the senses, which has resulted in a recognised psychiatric condition. Previous cases have recognised – as examples of psychiatric injury – 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)).
Unlike physical injury, onlookers, as well as those involved in a traumatic incident, can suffer a shock to the senses causing psychiatric harm. Making a judgment in the case of Page v Smith [1996], the judicial committee of the House of Lords sought to introduce limits on who could claim for damages for psychiatric injury. The Lords ruled that there are two distinct types of victim in cases of psychiatric injury, primary and secondary victims, and that different rules should be applied in each case.
Primary victims
Primary victims are those who are directly involved in the incident. A person will be recognised as a primary victim if:
- The defendant should have reasonably foreseen that the victim might suffer a personal injury as a result of their negligence
- The victim has a reasonable fear of personal injury. Where the person is a primary victim, and it is established that the defendant was under a duty of care to avoid causing personal injury, 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
- They are involuntary participants in the negligent act
- They are rescuers who are in the zone of danger and at risk of personal injury (White v Chief Constable of South Yorkshire [1999]).
The advantage of being classed as a primary victim, when claiming psychiatric injury, 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. The courts seek to control liability by imposing rules that restrict the imposition of a liability and so prevent a perceived flood of claims.
In order to succeed in a claim, a secondary victim must:
- Not be abnormally susceptible to psychiatric illness (Bourhill v Young [1943])
- Have suffered psychiatric harm that occurred through shock (Allin v City & Hackney HA [1996])
- Have been in physical proximity to the incident or its aftermath (Alcock v Chief Constable of South Yorkshire [1992])
- Have had a close personal or familial relationship with the accident victim (Alcock v Chief Constable of South Yorkshire [1992]).
The ability to claim compensation for psychiatric injury as a secondary victim is more difficult than as a primary victim.
Psychiatric injury after witnessing the negligent death of a relative
It appeared that it was possible for close relatives to claim compensation for psychiatric injury as a result of witnessing the death of a close relative as a result of the negligent failure to diagnose or treat a medical condition.
In the case of North Glamorgan NHS Trust v Walters [2002], a mother successfully claimed as a secondary victim for psychiatric injury in the form of pathological grief disorder that arose from the negligent misdiagnosis of acute hepatitis of her son, who went on to have a seizure and ultimately died some 36 hours later. The Court of Appeal held that the period from seizure to death was a single horrifying event witnessed by the mother, causing her psychiatric harm.
However, the UK Supreme Court recently held that the North Glamorgan case was wrongly decided and that no duty was owed by a health trust or board for psychiatric injury to a secondary victim in cases arising from the negligence of a health professional.
In Paul & others v Royal Wolverhampton Trust & others [2024], the Supreme Court considered the cases of close relatives who were present when their loved ones died as the result of an illness that had not been diagnosed due to negligence by health professionals.
The Supreme Court held that those who had suffered harm due to witnessing the wrongful death or injury to a loved one could not claim compensation where this was the result of negligence by a health professional in cases where the person had died from a disease that proper treatment would have prevented. The person had not died as a result of an accident and the secondary victim had not witnessed an accident that had caused a shock to the senses – what they had witnessed had occurred as a consequence of a pre-existing disease.
Limiting the award of compensation for psychiatric injury to secondary victims – individuals who were present at the scene, witnessed an accident and had a close tie of love and affection with the primary victim – was justified by the need to restrict claimants to those who were most closely and directly connected to the accident that the defendant had negligently caused.
Cases in which psychiatric illness was sustained by a secondary victim as a result of witnessing a death or manifestation of injury resulting from a pre-existing injury or disease were not the same as witnessing an accident. A person could not reasonably be expected to be shielded by health professionals from exposure to the traumatic experience of witnessing the death or impact of the disease on their relative. Patient care did not include members of the patient's close family who might be psychologically affected by witnessing the effects of a disease.
Claiming as a primary victim
It may still be possible for close relatives to claim for psychiatric harm as primary victims where they are more than onlookers to the incident and a traumatic event occurs. Such a situation arose in the case of Tredget & Tredget v Bexley HA [1994]. Here, due to the degree of their involvement in the birth, the parents were considered to be primary victims as they had witnessed the negligent delivery of their child, who died some 48 hours later. Witnessing these shocking events had left them with pathological grief disorder and so they were considered entitled to recover damages.
The case was briefly raised in the Supreme Court judgment in Paul, with the claimants in the above case wrongly characterised as secondary victims – the mother could hardly be considered a mere bystander in the birth of her child.
Conclusion
The Supreme Court in Paul & others v Royal Wolverhampton Trust & others [2024] has ruled that health professionals do not owe close relatives a duty to shield them from the distressing and unexpected death of a loved one as a result of a pre-existing but negligently undiagnosed condition, even where timely treatment would have prevented the death.
Such circumstances now sit outside the limited situations in which an onlooker to a traumatic incident can claim compensation for psychiatric harm as a secondary victim.
KEY POINTS
- The law of negligence has long recognised that individuals who breach their duty of care by carelessly harming another must pay compensation for the harm caused
- Unlike physical injury, onlookers, as well as those involved in a traumatic incident, can suffer a shock to the senses causing psychiatric harm, so restrictions apply to those who can claim
- In cases of psychiatric injury, the victims are characterised as primary and secondary, and different rules should be applied in each case
- Health professionals do not owe close relatives a duty to shield them from the distressing and unexpected death of a loved one as a result of a pre-existing but negligently undiagnosed illness