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Comparative analysis of Psychiatric Injury

The increasing knowledge in field of medical science has made the courts accept the fact that the harmful injuries can be caused to the man and numerous illnesses maybe be caused to persons not only through physical injuries but also without any physical contact at all. They have recognized the fact that the anxiety or the clinical depression may be there without psychosomatic symptoms. These types of injuries are usually called as Nervous Shock under law of torts.

The project will be dealing with the comparison of development of the concept of psychiatric injury under various jurisdictions throughout the world primarily in USA, UK, Canada with the help of various cases under these jurisdictions.

Definition of Nervous shock

For understanding the concept of Nervous Shock and psychiatric injury, it is imperative to know the definition of nervous shock.

Medical definition

In medicine, circulatory failure marked by a sudden fall of blood pressure and resulting in pallor, sweating, fast (but weak) pulse, and sometimes completes collapse. Its causes include disease, injury and psychological trauma. In shock, the blood pressure falls below the necessary to supply the tissues of the body, especially the brain. Treatment depends on the cause. Rest is needed, and, in the case of severe blood loss, restoration of the normal circulating volume.[1]

Definition under law

Under the law, nervous shock can be defined in simple terms as the shock caused to a person due to act or omission of another person. Though the word, ‘Nervous shock' was called imprecise in Alcock's case, it is still used to package a number of complex concepts. It is worth noticing that in most of the jurisdictions, nervous shock is distinguished from mere grief and sorrow. It is also noticeable that the term, Nervous shock gives the idea that compensation will be only granted compensation for injuries arising out of sudden shocks as the courts consider that the injuries arising out of sudden nervous shock are as severe as physical injuries.

Difference between medical injury and psychiatric injury

Under various jurisdictions compensations are granted for psychiatric injuries and not sorrow or grief or medical illness however, the line distinguishing between psychiatric injuries and medical illness is very thin and need to be demarcated not by judges but by medical practitioners. Some of the differences are highlighted below.
  1. Due to medical illness, the cause can't be identified without the medical tests but the cause can be identified through the testimony of victim but he is prevented from articulating due to trauma.
  2. Medical illness is endogenous and clinical but the chemistry of psychiatric injuries are not endogenous and different.
  3. Usually (in 81% cases) of medical illness there is a history with victim and family but in cases of psychiatric injury there is no history as such.
  4. The person may lack empathy in the former case but not in the latter case. [2]
     
Owing to these nuanced differences, it becomes important that a medical practitioner should be called upon to distinguish nervous shock from other kinds of mental illnesses, grief and sorrow, but judges consider this as a time taking and economically irrelevant process and refrain from calling upon these practitioner.

Psychiatric injuries in UK

Development
Under the English jurisdiction, the concept of psychiatric injury is developed sufficiently if not completely. However, initially even under the English jurisdiction, there was a reluctance in considering psychiatric injuries as seen in the case of Victorian railways commissioners v Coultas[3].The defendant who were gatekeepers had negligently let carriage with a pregnant woman to the railway crossing when the train was about to pass.

The lady had a nervous shock and had a miscarriage. The court did not entertain the appeal because in absence if physical injury, no compensation could be granted. The Privy Council in this case was apprehensive that entertaining such claims would be opening the floodgates for imaginary claims.

However, in Dulieu V. White[4] the limitation was done away with. In this case, the offended party, a pregnant barmaid, was behind the bar when a carelessly driven carriage fell off the street and collided with the bar, going into the room where she was standing. She endured Nervous shock and a consequent unnatural birth cycle. The court finally entertained the claim and granted the compensation for the psychiatric injury.

In this case, the Impact principle evolved as per which the offended party would be permitted to recoup for mental disease gave this was brought about by sensible dread of being physically harmed by the defendants recklessness.

The scope of the impact theory was limited to compensation only when the there was an imminent threat to the plaintiff (i.e. the primary victim). It is also notable that when physical damage caused to the victim, the court will give grant compensation for psychiatric injury without any hesitation no matter, how trivial the injury was. This principle was upheld in Page V. Smith.[5]

The impact theory was modified and the ambit was expanded in Hambrook v Stokes [6] where a pregnant lady left her three kids for school near a bent road, her kids disappeared and a negligently driven lorry came downhill. The mother heard thudding sounds and became afraid that here children might be hurt and then started looking for them, one of her child was injured.

She suffered mental shock and suffer miscarriage. The court granted her compensation, this case was differentiated from the King V. Philips where it was held that the mother was too far away from the accident sight. Thus in case of the secondary victims, the English jurisdiction look for the proximity of primary and secondary victim to limit the compensation. Also the English jurisprudence, do not consider mere bystanders to be eligible to seek compensation for these injuries as held in Bourhill V. Young[7].

The modern development in the rule is brought in the case of Mcloughlin v O'Brian[8] in this case; the plaintiff had not witnessed the accident but was informed two hours later by the neighbour that the car driven by her seventeen year old son, George having her husband and kids had an accident. She along with the neighbour went to hospital only to find out that her three-year-old daughter had died she heard her husband covered in blood wailing in pain. She suffered a nervous shock, disrupting the ordinary course of her life.

The House of Lords in this very case, expanded the ambit of Nervous shock to blanket a scenario where the plaintiff not necessarily witness the accident but comes in the immediate aftermath of it. Immediate aftermath here meant that the plaintiff witnessed victim and when they had not been cleaned up yet and was almost in same condition as at the time of accident, thereby make up the accident as an entire event.[9] Thus under the doctrine of immediate aftermath courts give compensation when the event leading to the psychiatric injury is one which is chained with the accident and not a separate one.

Under this case the three factor test was evolved as:
  1. Who can claim – the courts held that people under close tie like parent-child or husband, wife can claim (however, in later cases the ambit was increased to other relations of love and affection) bystanders are not considered because they are considered to be reasonably having the fortitude to witness this accident.
     
  2. Proximity- to get compensation, the plaintiff must be proximate in time and space to the accident, but it is not required for him to witness the accident
     
  3. Thirdly, it is also relevant to look at the means through which injury has been caused.

These are the limiting factors to satisfy when looking at psychiatric injuries.

So far, we have seen, in English jurisdiction, the compensation for psychiatric injuries can be brought up when
  1. There is a physical injury to the primary victim or a nervous shock caused to him by apprehension of being under imminent threat.
  2. When the secondary victim suffers a nervous shock and satisfy the three factors of Mcloughlin's case.
In the Case of Alcock vs Chief Constable of South Yorkmshire Police[10] there was an endorsement in the Mcloughlin rule, in this case Hillsborough Football stadium was over crowded during FA cup. 96 spectators died and 450 had been injured in a stampede. The Claimants witnessed the accident on TVs, radios etc and brought a claim of psychiatric injury.

The court expanded the criteria of loved ones and started considering siblings, fiancé etc. as close relationship. Secondly, the courts held that in this case the proximity is not satisfied nor is the doctrine of immediate aftermath. Because:
  1. The broadcasters are liable for shock not the police
  2. More importantly, the cameras give different views of an accident not possible for the live viewers. Thus the claim had failed.

Psychiatric injuries to the rescuers

The English jurisdiction has a very generous attitude towards the rescuer where they have suffered physical harm for example in case of Haynes v Harwood.[11] Where a policeman was injured and while protecting a crowd from horse negligently left unattended by defendants.

Or in Vaker v T.E. Hopkins and son ltd[12] where the representative of doctors were succeeded in getting the compensation for the death of a doctor who descended into the well to save a kid who fell due to negligence of defendant. However, in case of pure psychiatric injuries there is a series of jurisdictions.

In case of Chadwick v. British Transport Commission[13], a train accident occurred in Lewisham, South London. Chadwick who lived nearby came to help the victims. He worked throughout the night and thereby suffered psychiatric distress.

Court awarded him the compensation. The courts preferred the special treatment to the rescuers. However, in the Case of White Vs. South Yorkshire police[14] a different stance was taken. In this case, the claim was brought by rescuers who were working to rescue victims who suffered in the Hillsborough Football stadium accident.[15]

The courts held that the rescuers would not be able to claim compensation unless they are in actual threat or satisfy the criteria of secondary victim as per Alcock case. The court did this to prevent mere bystanders from getting the compensation as rescuers. However, English courts generally presume the rescuers to be under threat and give compensation without hesitation.

Psychiatric injury caused by defendant endangering himself

In orbiter of Alcock case a question was raised whether compensation could be sought where the defendant has put himself in risk. This was answered in Greatorex Vs. Greatorex[16] where John Greatorex was drunken and driving car on wrong side and crashed the car. He was trapped inside it. Fire brigade came to rescue; coincidently one of the rescuers was G Greatorex, father of John who later on sued his son for the nervous shock.

The court denied the compensation saying that as the injuries were self-inflicted the compensation to those who were the witnesses is against the public policy consideration of self-determination. Thus English courts do not give compensation under such case.

Psychiatric injuries arising because of inflicting harm on others.
English courts also consider the psychiatric injuries to plaintiff where they suffer because of causing harms to other by zero fault of theirs but of defendant. For example, in the case of Dooley v Cammell Laird and Co ltd[17], the plaintiff was operating the crane when the wire holding the load snapped, load fell. Plaintiff suffered a nervous shock that he may have killed his coworkers. The claim was acknowledged. Lord Hoffman said that:
there may be grounds for treating such a rare category of case as exceptional and exempt from the Alcock control mechanisms[18] similar stance was taken in case of W V. Essex CC[19].

The psychiatric injuries due to dam1age to property
In case of Attia v British gas plc[20] the plaintiff's house caught fire owing to reckless installation of heater by defendant the plaintiff suffered psychiatric injury and brought a claim. The Birmingham LJ held that a duty of care could exist in case of damage to property.

Psychiatric injuries in USA

In USA, a limited approach is followed in case of secondary victims is commonly followed. Initially, all the states of USA used to follow the concept of Zone of Danger. Zone of danger is defined as the area within which one is in actual physical peril from the negligent conduct of another person. Hence this concept is somewhat like the impact theory of UK where the compensation seeker for had to prove that psychiatric injury arises from the reasonable apprehension Of physical harm. This was firstly undone in the 1968 case of Dillon v Legg[21]. In this case a small girl was mortally injured by a car, the sister of victim was also hit by driver but mother was unharmed. Both mother and sister sued the driver, sister was in zone of danger, mother wasn't.

But the Californian Court held that the Zone of danger is not a just method and approached the Control Mech1anism fo1r the secondor4y victims. The main idea of this control mechanism was that there must be close relat1ionship among sufferer and plaintiff and there must be direct perception of accident. Other states who opted out of the concept of Zone of Danger are Nebraska and Wyoming. However most of the states are still following the zone of danger test including North Dakota, Minnesota, Missouri, Colorado and New York.

Instead of referring to psychiatric injury as nervous shock courts in USA refer to it as Emotional distress or mental distress to cover both the initial emotional reaction to traumatic stimuli and the secondary more serious physical and psychiatric consequences which may flow from them[22], thus it is suggested that the emotional agony should also be compensated however, the courts try not to give any compensation for trivial emotional distress and only compensate the serious emotional distress. However the definition was quite ambiguous. And a better understanding is needed.

In Asaro v Cardinal Glennon Memorial Hospital[23] the son of plaintiff underwent a heart surgery to remove the ring from heart, the ring was not removed properly the kid suffered some the fits of shock and fainting cycles. The heart was damaged ultimately, another doctor removed the ring. Mother brought the claim of psychiatric injury against the primary doctor. It was held that in order to get the compensation, the secondary victim must prove that his injury are medically diagnosable and also more than that of an uninterested witness (bystander).

The US jurisdiction grants the compensation to secondary victims in case of psychiatric injury only when the plaintiff has the close relationship of intimacy with the sufferer. The Supreme Court of California in Thing v La Chusa[24]case, it was held that the compensation should be limited to the members living in the same residence. In the later case Trombetta v Conkling et al[25] the claimant had seen his aunt being fatally injured in an accident.

She had brought the claimant up from his childhood. He suffered mental shock on losing her. However, the court said that because of the poli1cy consid4eration, we should not grant compensation to the bysta7nders who do not have blo4od relation8ship with victim. Thus, there is a very limited approach towards the secondary victim in US jurisdiction.

Psychiatric injuries to the rescuers


In most of the US states there is a principal called the firemen rule is followed under this rule, it is believed that the members of the emergency servi1ce providers (Fire brigade, police, life guards etc.) are appointed and in fact, paid to do the work of the rescuers . hence they should not be compensated in case they suffer any kind of injury while carrying out the rescuer work.

For an example the case of White v. Edmond[26] defendant's house was on fire by the time white reached the Edmond's property, it was completely engul8fed in fire. Before White's arrival, the gas cylinder of Volvo had exploded.

When white was trying to subdue the fire, cylinder again exploded injuring White in the feat. He sued Edmond. The court applied the fireman rule and denied the compensation. This rule is followed by most states and the compensation is not given to the rescuers neither in the case of physical rescuers nor in the case of psychiatric injuries. State of Pennsylwenia is one of the few states which do not follow the firemen rule.[27]

Psychiatric injuries arising out of own conduct

In the judgement of Dillon V. Legg[28] Justice Tobriner said that if the child had been injured due to her sole negligence or even because of contributory negligence. Then, the mother and sister would have failed in getting any compensation for the mental trauma. The court believed there is no reason to compensate the secondary victims, if the immediate victim has been endangered by her own wrongful conduct. There is a consensus on this line of rationale throughout most of the states of USA. Thus, the compensation to the secondary victims does depend on the immediate victim.

Psychiatric injuries resulting out of them inflicting harms on other

Again in US, the injuries for mental shock in this type of cases is varying in different states for example, in Californian case of Kately v Wilkinson[29] the plaintiff brought a boat from defendant to ski, plaintiff and her friend went to ski, while driving the boat, the steering somehow got jammed and boat couldn't be controlled, friend of plaintiff was injured in leg, plaintiff suffered psychiatric trauma and sued defendant. The court granted the compensation. Conversely, in Straub vs Fisher & Paykel Health Care[30] the claimant, a therapist operated patient on a faulty ventilator made by defendant. The patient died, plaintiff suffered emotional distress and sued the defendant. The court in Utah ordered that the compensation couldn't be granted.

Psychiatric injuries arising out of loss of property

In most if "the USA states, the psychiatric injuries arising out of loss of property is covered. In the case of Harrison v Raynott, the house of Harrison caught fire due to negligence of the watchman. Harrison suffered mental agony. The Court in California said that the defendant should be granted both economic and non-economic damages should be granted. Non-economic damages are referred to as non-mon1etary loss including pain and suffering, emotional distress.

Psychiatric injuries in Canada

In Canada, in order to get the compensation, you have to show a recognizable psychiatric injury, mere emotional distress cannot be held to fetch the compensation. For the primary victim in Canada in order to get the compensation it is sufficient to show that there was a foreseeability of harm however, in case of secondary victim, there is a need of establishing aproximity. The proximity means the relationship of tenderness between sufferer and plaintiff, the presence and quick arrival.

And most importantly, the immedia1te perception is needed. In Canada the bystanders has the right to sue but there is a reluctance in granting the compensation to those who have not have the direct perception, a family was denied the compensation because he came to see the body after a few hours. Hence, to get compensation for the secondary victim, the policy consideration of proximity should be satisfied. The fortitude of the plaintiff is important, while assessing the compensation it is looked what was the susceptibility of him. If the plaintiff is hypersensitive then the court might curtail the compensation or deny it.

Psychiatric injuries to the rescuers

Canadian jurisdiction has a liberal view towards the rescuers. In Fenn v City of Peterborough[31], Fenn's house caught fire, his wife and his three children were there when he arrived, he saw here one kid and wife being loaded in the ambulance He saw two kids still inside the rubbles, he tried to rescue them and while doing so he suffered psychiatric injury although he did have any imminent threat. The court established the res2cuer principle in this case. The principle was also accepted in the case Bechard v Haliburton Estate[32].

Psychiatric injuries due to loss of property

In Canada, in past few years, appellate courts have started granting the compensation in the case of loss of pets Ferguson v. Birchmount Boarding Kennels Ltd'[33]. (2006),) the plaintiff brought the cage for his dog form Birchmount. The cage was faulty, the dog escaped and died. Ferguson suffered the courts had given the compensation for psychiatric injury. Notably, in Canada the pets considered as property. However, the stand on non-living property is unclear.

Contrast

While studying the concept of psychiatric injuries of various countries and jurisdictions, following trends were seen.
  1. In case of primary all three jurisdictions, i.e. Canadian, USA and English jurisdiction have similar approach where if any physical injury is caused to plaintiff then the compensation for psychiatric injury is given. Also if there is nervous shock arising out of apprehension of physical injury, then too the compensation is granted even in absence of actual damage.
     
  2. In case of secondary victims, the approach is somewhat different, in both UK and Canada in order to get the compensation, the secondary victim need to have the relationship of tenderness with immediate sufferer, the proximity (immediate afterma2th rule) needs to be proved. Both countries try to exclude bystanders from the compensation seeker, however, in Canada there is some consideration of bystander. In USA, most of the states follow the rule of Zone of danger which excludes the secondary victims. The rest of the states have abandoned this rule. They consider those secondary victims who pass the control mechanism.
     
  3. In the case of rescuers, English and Canadian jurisdiction has a liberal stance, they consider the rescuers as a category of victims who should be compensated for the psychiatric injuries. This approach may be attributed to the public policy consideration to promote the actions of rescue work. However, in USA many states follow the debated rule of firemen rule and do not give compensation to rescuers not even in case of physical injuries, some states have done away with this rule but still their consideration is limited to physical injuries only.
  4. Both USA and UK do not consider giving the compensation in a case where the defendant/immediate victim have because of his wrongful action has endangered him.

  5. English jurisdiction considers those cases where the plaintiff has harmed the third party (immediate victim) due to the defendant's fault and by the virtue of that fact has suffered the psychiatric injury, so does many states in the USA. The Canadian courts do not take into consideration such claims of psychiatric injuries.

  6. Under English jurisdiction the psychiatric injuries arising out of loss of property is addressed. This property can be both living (pets) and non-living. Canadian jurisdiction compensates the loss of animals but stand on other properties is not clear. In many states of USA including California, Arkansas the psychiatric injury for loss of property is addressed.

Conclusion

Through the study of various jurisdictions and cases, we come to see that the laws regarding psychiatric injuries in various countries converge at some points and diverge at the others. The laws regarding the psychiatric injuries are not fully developed anywhere in the world. With the development in the field of medical sciences, it is needed that the laws pertaining to nervous shock also evolve. There is much need of development in USA jurisdiction in terms of psychiatric injuries Canadian and English jurisdictions are comparatively more liberal and evolved in this regard.

End-Notes:
  1. Encyclopaedia by farlex
  2. Cathrine Francis et al Media reporting of specific mental illnesses in the context of crime: implications for mental health literacy, The Medical Journal of Australia (Dec. 1, 2003, 5:45 PM) https://www.mja.com.au/journal/2003/179/11/media-reporting-specific-mental-illnesses-context-crime-implications-mental
  3. Victorian Railway Commissioners v. Coultas: PC (1888) 13 App Cas 222
  4. Dulieu v White and Sons KBD ([1901] 2 KB 669)
  5. Page v Smith 1995] 2 WLR 644
  6. Hambrook v Stokes KBD[1925]1 k.B.141
  7. Bourhill v Young [1943] AC 92
  8. Mcloughlin v O'Brian [1983] 1 AC 410
  9. Mcloughlin v O'Brian [1983] 1 AC 410
  10. Alcock and Others v Chief Constable of South Yorkshire Police QBD ( [1991] 2 WLR 814
  11. Haynes v Harwood KB [1935]1 K.B 146
  12. Vaker v T.E. Hopkins and son ltd [1959] 1 WLR 966 C
  13. Chadwick v British transport commission [1967]1 W.L.R. 912
  14. White v Chief constable of south Yorkshire (1999)2,a.c 455
  15. Supra note 14.
  16. Greatorex v Greatorex (2000)1 WLR1970
  17. Dooley v Cammell Laird and Co ltd. [1951] llyod's rep.271
  18. Supra note 14.
  19. W v Essex CC (2000)2 ALL E.R 237
  20. Attia v British gas plc (1988)QB 304
  21. Dillon v Legg (1968) 29 ALR 3d 1316
  22. NJ Mullany, "Fear for the Future: Liability for Infliction of Psychiatric Disorder", chapter 5 of Mullany (ed), Torts in the Nineties (LBC Information Services, 1997),
  23. Asaro v Cardinal Glennon Memorial Hospital (1990) 799 SW 2d 595
  24. Thing v La Chusa (1989) 48 Cal 3d 644
  25. Trombetta v Conking at al (1989) 48 Cal 3d 644
  26. White v Edmond (1992) 971 F.2d 681
  27. Firemen rule abandoned in MULL v. KERSTETTER 373 Pa.Super. 228 (1988)
  28. Supra note 21.
  29. Kately v WIlkinson (1983) 195 Cal Rptr 902.
  30. Straub v Fisher and Paykel Health Care (1999) 990 P 2d 384 (Utah).
  31. Fenn v City of Peterborough (1977) 73 DLR (3d) 177
  32. Bechard v Haliburton Estate (1991) 84 DLR (4th) 668 at 674.52
  33. Ferguson v Birchmount Boarding Kennels Ltd79 O.R. (3d) 681 (Div. Ct.

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