NEGLIGENCE LIABILITY TO PRIMARY VICTIMS OF PSYCHIATRIC ILLNESS
| Author | LEONG HUEY SY, SUSANNA AND TER KAH LENG |
| Published date | 01 December 1996 |
| Citation | (1996) 8 SAcLJ 213 |
| Date | 01 December 1996 |
Cases of nervous shock involving secondary victims are common. Less common are cases involving primary victims suffering psychiatric illness associated with physical injury. The first reported case involving a primary victim suffering pure psychiatric illness unassociated with conventional physical injury came recently before the House of Lords. Cases of pure psychiatric illness caused by stress-inducing work have also begun to surface. In these primary victim cases, the test of reasonable foreseeability appears to have been applied differently. This article examines and evaluates these different approaches.
The claimants for psychiatric damage inflicted by the defendant’s negligence can be broadly classified into two categories: primary victims or participants and secondary victims or bystanders. The first category refers to direct participants of the accident who are therefore within the immediate range of reasonably foreseeable personal injuries. They may suffer either pure psychiatric damage or psychiatric damage accompanied by some physical injuries as a result of the accident. Included in this category are those who suffer work-induced psychiatric damage without physical injury. The second category refers to those persons who are not directly involved in the accident, but suffer psychiatric illness as a result of what they see or hear in situations where personal injuries or risk of personal injuries are inflicted upon another person. This important distinction emerged from a recent decision of the House of Lords in Page v Smith1 involving a primary victim of the defendant’s negligence.
This article examines and evaluates the different application of the reasonable foreseeability test to primary victims of accidents suffering pure psychiatric illness and those similarly affected by work-induced psychiatric damage. Its application in Singapore will also be considered.
Before Page v Smith2, cases of nervous shock involved secondary victims who were not direct participants in the accident but who suffered nervous shock as a result of witnessing the accident or its immediate aftermath. The case that comes closest to Page v Smith is Dulieu v White3, in which
a barmaid recovered damages for nervous shock brought about by fear of immediate personal injury to herself as a result of the defendant’s van crashing into her husband’s pub. However, Page v Smith was the first case before the House of Lords involving a claim by a primary victim for pure psychiatric damage, although their Lordships had thrice before deliberated the issue of nervous shock caused to secondary victims.
The facts of Page v Smith are simple. The plaintiff, P, was involved in a car accident with the defendant, S. Although the impact of the collision was severe enough to cause substantial damage to the vehicles, P did not sustain any bodily injury. The defendant, S, together with his wife and child who were in the car at the time of the accident also came out of the accident unscathed. In fact, P was able to write down the name and addresses of S, telephone his wife and then drive home. There was no evidence to suggest that he was at anytime in fear for his own safety or the safety of the occupants of the other car. However, P had adduced evidence to show that he had for a long time been suffering from a condition variously known as myalgic encephalomyelitis (ME), or chronic fatigue syndrome (CFS) or post viral fatigue syndrome (PVFS), which had manifested from time to time with varying degrees of severity. P commenced proceedings against S for negligence causing personal injuries. He maintained that his condition, CFS, had as a result of S’s negligence become chronic and permanent. As such he was unable to work anymore.
The issue which arose was whether in all claims involving nervous shock or more accurately, psychiatric illness, the plaintiff must prove that it was reasonably foreseeable that injury from psychiatric illness was likely to ensue as a result of the defendant’s negligence, or whether it was sufficient that personal injury of some kind was reasonably foreseeable as a result of it.
The House of Lords, by a bare majority of three to two, allowed P’s claim4. Their Lordships ruled that in cases where the claimant was a primary victim who was directly involved in the accident, the appropriate test to apply was whether it was reasonably foreseeable by the defendant that if he did not take reasonable care, the claimant would suffer personal injuries of some kind as a result of his negligence. If the answer to the above question was in the affirmative, then a duty of care would arise. The defendant would be liable even if no physical injuries were sustained and the only damage suffered by the claimant was purely psychiatric in nature.
It was unnecessary in this situation to ask whether a separate duty of care not to cause foreseeable nervous shock by his negligence to the claimant also arose. The latter requirement applied only to nervous shock cases involving secondary victims beginning with Bourhill v Young5 to a recent case, Alcock v Chief Constable of South Yorkshire Police6. In the present case, once it was established that some kind of personal injury was reasonably foreseeable, the defendant clearly owed a duty of care to the plaintiff and breach of this duty would render S liable to P whether the damage suffered was physical or psychiatric in nature. Foreseeability of the psychiatric damage itself was not necessary. This approach is in marked contrast with the case of secondary victims where it must be established that the defendant could reasonably foresee that the secondary victim will suffer psychiatric damage as a result of his negligence. It is insufficient for the secondary victim merely to prove that physical injury of some kind is foreseeable by the defendant. Therefore, the plaintiff bystander in Bourhill v Young7 failed in her claim as the court found that it was not reasonably foreseeable that someone not sufficiently closely connected to the primary victim would suffer nervous shock. In contrast, the mother in McLoughlin v O’Briar8 succeeded in her claim for nervous shock. Although she was 2 miles away from the scene of the accident she came upon the immediate aftermath of the accident at the hospital where she saw her family severely injured. The House of Lords upheld her claim because it was reasonably foreseeable for a mother who was closely related to the primary victims of the accident to suffer nervous shock.
In applying the test of reasonable foreseeability to primary victims of psychiatric illness, do matters fall to be considered prospectively or ex post facto? The House of Lords stated in Page v Smith that “liability for physical injury depends on what was reasonably foreseeable by the defendant before the event”9. Applying the prospective test, immediately before the impact, some personal injury was reasonably foreseeable. This is clearly different from the case of secondary victims, where the circumstances of the accident or event must be viewed ex post facto10. This involves looking at the circumstances as they actually occurred and considering whether a hypothetical reasonable man would have foreseen that a person in the position of the plaintiff might as a result of the accident suffer psychiatric illness. One of the relevant factors would be the nature of the accident.
Applying this approach to Page v Smith, a hypothetical reasonable man would not have foreseen that the plaintiff might as a result of a collision of moderate severity, suffer psychiatric illness. Lord Lloyd thought otherwise. His Lordship said that “when two cars collide at 30 miles an hour, the possibility that those involved will suffer nervous shock, resulting in some form of psychiatric illness, is not something to be brushed aside.”11 This means that in virtually every road accident, psychiatric illness may be presumed to be reasonably foreseeable so that the defendant should expect such a head of claim to be brought against him.
In applying the reasonable foreseeability test to secondary victim cases, the defendant must have foreseen injury by nervous shock to a person of “normal fortitude” or “ordinary phlegm”. In other words, if the event is such that a person of normal fortitude after witnessing it is unlikely to be deeply traumatised or psychologically affected, then the secondary victim, even if by nature is prone to hysteria or is particularly susceptible to psychiatric damage, will not succeed in a claim for nervous shock. Applying this approach to Page v Smith, it is clear that P would have failed in his action because of his peculiar vulnerability. However, the majority of their Lordships held that the negligent defendant must take his victim as he finds him under the “egg-shell skull” rule. Their Lordships ruled that a similar principle is applicable in the case of psychiatric injury and there is no difference between the “egg-shell skull” rule and the “egg-shell personality”12. Therefore, it is irrelevant that the psychiatric illness comes in the form of a rare disease or is of unusual severity. The defendant owes the primary victim a duty of care not to cause him psychiatric illness even though P suffered psychiatric damage only because of his peculiar susceptibility.
The application of the prospective formula appears to have been used by their Lordships in order to justify the finding of a duty of care in Page v Smith. Lord Lloyd offered an explanation for the use of the ex post facto test: “if one did not know the outcome of the accident or event, it is impossible to say whether the defendant should have foreseen injury by shock. It is necessary to take...
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