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FREE BOOK SAMPLE: Primary Victims: Cases Involving Physical Injury (from 'A Practical Guide to Psychiatric Claims in Personal Injury' by Liam Ryan)

04/10/17. When first considering if a claim for psychiatric injury is worth perusing, it’s fair to say that a legal practitioner will rarely have all the evidence that they need for a conclusive opinion on prospects of success. There is going to be a fair amount of guess work, and also a number of Judgment calls based on experience.

Therefore, practically it is useful to approach any such claims with some form of framework in place to be able to understand which category of claim for psychiatric injury the claim falls into and how the law therein stands. Whilst all practitioners will draw up and develop their own individual manners and mechanisms for establishing how to approach a claim, it is suggested that the following framework can help:

  1. Firstly, in every case the Claimant must have suffered a recognised psychiatric disorder. Mere anger, grief or anxiety is not enough, therefore it is useful to have an understanding of the core components of psychiatric conditions, This will need to be evidenced by way of expert opinion in the majority of cases (part 35 CPR).

  2. Secondly, this Claimants psychiatric injury will have been caused by an act on which a cause of action can be based, and in the bulk of such cases this will be a negligent act.

  3. Thirdly, where such an act takes place which carries with it the risk of physical injury, the Claimant can recover damages for psychiatric injury, if the act or omission causes him psychiatric injury, even if the infliction of psychiatric injury wasn’t reasonably foreseeable (Page v Smith[1996] A.C. 155).

  4. Fourthly, in cases of rescuers, where this class of Claimants expose themselves to danger in an objective sense, or reasonably believe that they have exposed themselves to danger, they can recover damages whether the psychiatric injury is caused by fear for their own safety or horror at what they see and experience (Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 ).

  5. Fifthly, where a negligent act or omission of the Defendant has put a Claimant in the position of being, or thinking that he is about to be, or has been, the involuntary cause of another’s death or injury, and the psychiatric injury flows from the shock of this to the Claimant, the Claimant can recover damages.

  6. Lastly, any Claimants who suffer psychiatric injury as a result of witnessing death or injury of another, or who perceive the risk of death or injury to another can claim damages, but only if they satisfy the “Alcock control mechanisms” (Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 ).

When the classes of these victims are broken down, you can see that there are really two different types of Primary victim; firstly a Claimant who suffers physical injury and in conjunction with this also suffers from a psychiatric injury, and secondly, a Claimant who only suffers from psychiatric injury. This section is going to deal with the former.

On the basis that psychiatric injury is caused either by, or as a result of a physical injury, there is little controversy in the principal of a Claimant being able to advance a claim for general damages in relation to their psychiatric injury. The latter type practically can result in more complicated claims. The House of Lords previously highlighted in Bourhill v Young [1943] A.C. 92 that in deciding this question a Defendant can assume that the Claimant was a person of “customary phlegm”, with the “normal standard of susceptibility” to psychiatric injury. Whilst it may seem obvious, this point alone can create a release mechanism through which a Defendant can seek to sidestep the issue of liability for any act of negligence on their part. As our understanding of psychiatric health and injury has developed over the years since Bourhill, so has our tolerance and understanding of what normal susceptibility should be taken to mean. Whilst rare, it is possible that a Claimant who is affected by the negligence of a Defendant may suffer from pre-existing psychiatric vulnerability or an “eggshell personality” meaning that they react significantly and dramatically to otherwise minor events. This is explored in more depth below.

The concept of a primary victim was identified in the case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310,when Lord Oliver provided that in cases of psychiatric injury, Claimants:

Broadly… divide into two categories, that is to say, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others. In the context of the instant appeals the cases of the former type are not particularly helpful, except to the extent that they yield a number of illuminating dicta, for they illustrate only a directness of relationship (and thus a duty) which is almost self-evident from a mere recital of the facts .”

To try and place this into a practical context it is not uncommon in cases involving road traffic collisions where personal injury is caused, to see Claimants also develop anxiety or adjustment disorders. Likewise, in cases of more serious injury it is not uncommon to see symptoms of post-traumatic stress disorder arising. It is also possible (although practically rare) to meet Claimants who have not suffered any injury, for example being involved in a very low velocity road accident causing no physical injury, but who go onto develop serious psychiatric conditions as a result. These are often the most difficult cases to deal with, in part for the sometimes overly healthy scepticism on the part of Defendant insurers.

As already set out, the Claimant will need to evidence that a psychiatric injury has been suffered on this point. It is important to remember that in order to diagnose such an injury expert evidence will be required on the point from an expert who is capable of making such a diagnosis. Part 35 CPR clearly sets out what is required and should be considered. It can’t be stressed enough the need for robust medical evidence to be secured at an early stage to enable the pursuit of such claims.

Cases of a minor injury with a serious psychiatric reaction

A common, and complicating aspect of claims for psychiatric injury arises from situations where a Claimant suffers from a relatively minor physical injury, but goes on a result of this to develop, or claim that they have developed, a serious psychiatric injury. It is therefore quite possible for cases on their core facts to appear to be of a very modest value, but upon further evaluation and the collation of expert evidence to grow exponentially in scale, with claims for consequential losses for loss of earnings, future care and adaptations, quickly transforming the case from a low value claim for personal injury into a complex multi-discipline, high value litigation.

Practically on this point the need for robust and cogent medical evidence cannot be over stressed. Good objective evidence, as highlighted in the part 35 CPR declaration itself, is designed to assist the Court. It is required to identify the symptoms complained of, the likely cause of such symptoms and their prognosis. Such evidence should not simply repeat whatever a Claimant says and then seek to automatically allot these symptoms to a negligent act, but rather, explain why they should be allotted to it.

Post the LASPO reforms, and the introduction of QOCS, these types of injuries have become a real battleground between Claimant and Defendant insurers for the reason that it is not uncommon to find oneself in a position where a Claimant’s psychiatric evidence supports the claimed injuries but the Defendant either states there is no such injury, or the Claimant cannot establish causation for it. Over the past years, since the implementation of QOCS, I know that I have seen more of the prior, with such arguments naturally dovetailing into the provisions of part 44.16 CPR and fundamental dishonesty, not only allowing a Defendant to side step the costs consequences of QOCS, but to place pressure on a genuinely injured Claimant to seek to under settle or withdraw from a litigation in fear of personal monetary and legal consequences.

Despite this, the law does of course support such claims, but the key issues for the practitioner will be:

  1. Identifying the presence of a psychiatric injury.

  2. Identifying that a psychiatric injury was caused by a Defendant’s negligence.

  3. Identifying that these injuries and damage are not too ‘remote’.

Claimants who find themselves in a such position should feel somewhat emboldened by the House of Lords decision in the British Steel Plc v Simmons[2004] UKHL 20, which is authority at the highest level that such claims can succeed.

In this case the Claimant was employed as a burner by the Defendant, British Steel in Cambuslang. Sadly, whilst in the course of his employment he tripped and fell from a burning table and struck his head on a metal stanchion. He sustained a severe blow to the head and after the accident also experienced an exacerbation of a pre-existing skin condition. He also developed a change in his personality which resulted in a severe depressive illness. These later developments were said by the Defendant to be entirely unforeseeable. The Defendant had been previously found to be responsible for the Claimants injuries, and on appeal the finding on liability was not challenged.

A complicating feature of this case was that the Claimant had, prior to his injury, warned the Defendant of the potential danger in his work. Understandably he was angry after the accident, and in part, the fact he had warned the Defendant of the risk to him beforehand played some part in increasing the levels of anger he experienced. Whilst the claim for consequential psychiatric injury failed at first instance as the Claimant was not able to establish that it was caused by the Defendant’s negligence, but rather his anger and absence from work, the Judgment itself appears to indicate it was seen as being too remote. In essence, there was in any event the absence of a clear linking thread between the negligent act, and the onset of the symptoms complained of on the analysis applied. The matter moved through the appellate Courts, and on reaching the House of Lords it was held that in any event, the physical injury had made a material contribution to the Claimants psychiatric injuries and therefore, the Clamant could recover damages.

In dealing with Remoteness, Lord Hope provided that:

The fact that the pursuer sustained physical injuries in the accident for which the defenders have been found liable makes it unnecessary, applyingPage v Smith, to ask whether the psychiatric injury from which he has also been suffering was reasonably foreseeable. The pursuer is in the position of a primary victim of the accident on Lord Lloyd's analysis, which has been followed and applied …. So no distinction needs to be made between his initial physical injuries and his subsequent mental state. The duty of care which the defenders owed to the pursuer extended to the psychiatric symptoms as well as to the physical consequences. They must take theirvictim as they find him, so the aggravation of his psoriasis and the anger which led to his depressive mental illness can both be assumed to fall within the scope of their liability, so long as there was a causal connection between these symptoms and the accident”.

He continued:

An analogy can be drawn between this case andWardlaw v Bonnington Castings Ltd, where there were two sources of dust, one of which came from defective swing grinders and was due to the fault of the defenders. The pursuer's pneumoconiosis could not be wholly attributed to the material from one source or the other. Lord Reid said (p 32):

It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exceptionde minimis non curat lexis not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within thede minimisprinciple but yet too small to be material.’

In this case there were several causes of the pursuer's anger. It was enough that one of them arose from the fault of the defenders. The pursuer did not need to prove that that cause would of itself have been enough to cause the anger which produced the exacerbation. He was entitled to succeed if it made a material contribution to it (see alsoMcGhee v National Coal Board, per Lord Reid at p 53)”.

Lord Roger perhaps summed it up more simply at paragraphs 55 with:

Since the pursuer in the present case actually suffered physical injuries as a result of the defenders' fault and negligence, the starting point is that he is a primary victim in terms of Lord Lloyd's classification. Senior counsel for the defenders argued, however, that the pursuer's psoriasis and his depressive illness sprang not from the accident itself, but from his anger at the happening of the accident. Hence he could not recover damages. I see no reason to give effect to such a distinction, even supposing that it can be realistically drawn in a given case. Regret, fear for the future, frustration at the slow pace of recovery and anger are all emotions that are likely to arise, unbidden, in the minds of those who suffer injuries in an accident such as befell the pursuer. If, alone or in combination with other factors, any of these emotions results in stress so intense that the victim develops a recognised mental illness, there is no reason in principle why he should not recover damages for that illness”.

He concluded at paragraph 67 that:

Once liability is established, any question of the remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development. (1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable… (2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may not be liable for damage caused by anovus actus interveniensor unreasonable conduct on the part of the pursuer, even if it was reasonably foreseeable … (3) Subject to the qualification in (2), if the pursuer's injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent than was foreseeable or it was caused in a way that could not have been foreseen …. (4) The defender must take his victim as he finds him … (5) Subject again to the qualification in (2), where personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury, whether physical or psychiatric, which the pursuer suffers as a result of his wrongdoing

The delayed onset of psychiatric injury following injury

A common occurrence in personal injury litigation, and one that is more often than not met with some scepticism from Defendants, is the situation where a Claimant following a physical injury at a later date develops a psychiatric injury. Is this caused by the physical injury, the accident or something else? Practically these types of situations when they arise will pose not insubstantial hurdles on the issue of causation and whilst it can be argued successfully (with supportive and robust evidence), it is better to view success on such as a point as possible, rather than assured. This can lead to some very tense moments for Claimant practitioners with their client, especially when part 36 CPR offers are being discussed, but likewise for Defendant insurers, some worrying moments when strategically considering how to bring a litigation to a head when the potential exposure to damages and costs is considered.

This point was visited in rather tragic circumstances in the case of Corr v IBC Vehicles Ltd [2008] UKHL 13. In this matter, the Claimant was the widow of Mr Thomas Corr who died on 23rd May 2002 when he committed suicide.

Mr Corr had been a maintenance engineer, working for Vauxhall motorcars. In 1996 on his production line was an automated arm with a sucker for lifting the vehicles which were being assembled whilst panels were connected to them. During the course of the working day, one of the arms malfunctioned and due to this, the Claimant and a colleague were instructed to repair the fault. During their repair procedure, suddenly and without warning, the machine picked up a panel and lifted it out of the press causing it to strike him on the right side of his head, severing most of his ear. The Claimant underwent reconstructive surgery for this ear which was a long and painful process. Due to this injury the Claimant suffered from disfigurement, unsteadiness, mild tinnitus, severe headaches and difficulty in sleeping. However, whilst these physical injuries were in and of themselves bearable, he went on to develop Post Traumatic Stress Disorder which caused the Claimant to begin to suffer from nightmares as well as struggling with his daily life and work. His symptoms worsened and he plummeted into an intensifying spiral of psychiatric depression and on the 23rd May 2002 killed himself by jumping from the top of a multi-storey car park.

Mrs Corr, his widow, brought a claim against the Defendant on behalf of the estate and under the Fatal Accidents Act 1976. She was awarded £85,000.00 in respect of the claim on behalf of the estate but the claim under the Fatal Accidents Act 1976 was dismissed by the Judge. In dismissing the claim he found that the deceased’s suicide was not reasonably foreseeable by the Defendant and the damages sought to be recovered in relation to the suicide fell outside the scope of the Defendant’s duty of care. Evidentially, it had been an agreed fact between the experts relied upon by the parties at the trial that the depression the Claimant suffered due to the accident, had ultimately driven the Claimant to suicide, and the evidence which was before the Court indicated that about 10% of severely injured persons, took their own lives. Mrs Corr appealed to the Court of Appeal who found in her favour, and the Defendant in turn appealed to the House of Lords.

Lord Justice Nuernburggiving the lead Judgment at paragraph 68 – 69 of the Judgment provided that:

In my judgment, in a case such as this, it would represent a failure to take into account the importance of personal autonomy, and would be inconsistent with the reasoning in Reeves's case, if we were to hold that, savewhere the deceased was of entirely sound mind at the relevant time, it would be inappropriate in principle to reduce the damages awarded under the 1976 Act on the grounds of contributory negligence, where the deceased had taken his own life. The mere facts that his mental state was impaired to some extent by a condition for which the defendant was responsible, and that he would not have killed himself but for that impairment, cannot, in my opinion, without more justify rejecting the contention that there could have been a degree of “fault” on his part

In the end, I consider that the question to be addressed is the extent to which the deceased's personal autonomy has been overborne by the impairment to his mind attributable to the defendant. Where it has not been so overborne at all, the contribution, and hence the reduction in damages, may well be 50% (as in Reeves's case); where it has been effectively wholly overborne, there will be no reduction. In other cases, the answer will lie somewhere between those two extremes. In such cases, the question, while a relatively easy question to formulate, will, I strongly suspect, be a relatively difficult question to answer, at least in many circumstances”.

He concluded at paragraph 70 that:

Almost any exercise which involves assessing the degree of contributory negligence must inevitably be somewhat rough and ready, and that is particularly so where one has to decide on the extent to which a person, whose mental capacity is impaired to a degree, is responsible for his own suicide. However, even bearing that in mind, and acknowledging the force of Lord Scott's view to the contrary, I am in agreement with Lord Mance in that I do not consider it appropriate for your Lordships to determine the appropriate degree of responsibility (if any) to apportion to Mr Corr for his suicide in the present case. The question does not seem to have been the subject of significant evidence or argument at first instance, and it was hardly touched on in argument in the Court of Appeal. Not only do I doubt whether it is possible to answer that question on the basis of the evidence and limited argument before us, and in the absence of any finding in the courts below; it would also be unfair on the claimant to consider a reduction in her damages on this ground as, for essentially the same reasons, she has not had a proper opportunity to deal with the question. It is not as if it is inevitable that there would have been some discount on this ground: it would be for the defendant to establish any deduction on the basis of evidence and argument”.

The case itself is tragic, but does highlight how it is possible that with the appropriate and robust expert evidence secured, a Claimant can progress a claim for damages flowing from similar facts. A key point to remember is that in Corr there was an agreement to a certain degree between the parties’ experts on injury. In the absence of this is it is very likely that the case would have ended differently.

It’s all about the evidence

Medical evidence, as stressed, is of significant importance, but also don’t underestimate the power and importance of witness evidence clearly setting out the progression and development of symptoms. In most cases where there is a physical injury, due to the concept of “material contribution”, there is not in the majority of cases going to be a stern battle on causation, rather on the injury, its extent, apportionment and prognosis.


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