FREE CHAPTER from ‘A Practical Guide to Psychiatric Claims in Personal Injury – Third Edition’ by Liam Ryan

27/11/2024

CHAPTER TWO – CLAIMS IN NEGLIGENCE AND PSYCHIATRIC INJURY

All claims in the Civil Courts which deal with the cause of psychiatric injury are at their core, stories of the factual aetiology of a Claimant’s injury.

Whilst the facts underpinning each and every claim are unique, what makes a claim for psychiatric injury different from a patient recanting the history of how they came to develop a psychiatric disorder to a clinician, is that there will be an identifiable and actionable wrong which can be said to have caused, or contributed to the development of their injury. A Claimant’s main, if not sole cause of action will as a result of this almost always rest in negligence.

Claims in negligence

The law of negligence has undergone significant developments historically, but one of, if not the most important decision for Claimants seeking to bring claims for psychiatric injuries remains Caparo Industries plc v Dickman [1990] UKHL 2[1]. Here the House of Lords established that in order for any claim to be brought in negligence, a Claimant needs to be able to establish four things. These are;

  1. The existence of a duty of care owed to a Claimant by a Defendant;
  2. A breach of the duty of care by the Defendant;
  3. A causational connection between the Defendant’s careless conduct and the damage;
  4. That the damage suffered was not so unforeseeable as to be too remote.

In a case where these four components can be satisfied, a Defendant may be liable to the Claimant in negligence for damages flowing from their specified breach of duty of care. This text will later explore some of the nuances of this, but in essence this can be enough to ground an actionable claim in negligence.

As referred to above, in the majority of personal injury claims, the most relevant cause of action is likely to be found in negligence, where a duty of care owed to the injured Claimant has been breached. Practically, this often arises from facts commonly classed by Claimants as an “accident”, or something that was caused by the “recklessness” or “carelessness” on the part of a Defendant, as opposed to being done with any form of intent or malice. The use of these words can lead to some confusion and a loss of focus on what the Courts require a Claimant to prove, with each having a specific meaning in law as opposed to how they are more commonly used in conversation.

By way of example, the duty of care owed by a Defendant to a Claimant who presents a claim for personal injury in negligence is not a duty not to act carelessly. It predominately, if not always is based on the breach of a duty not to inflict damage carelessly. Whilst the nuance of the language may seem pedantic, it is important. In practical terms it is advisable to always be mindful of the following four points;

  1. The mere fact that a Claimant is injured by another’s action doesn’t create a cause of action;
  2. There must exist a duty of care;
  3. It must be shown that this duty was breached by the Defendant; and
  4. That this breach has caused the Claimant injury.

A Defendant who acts negligently in the context of a claim for negligence can be said to have acted without giving proper, or any thought to the consequences of their actions and the risk of harm they posed. Practically, it may can include;

  1. The driver of a car who in driving too fast, while not intending to collide with the vehicle in front of themselves does so;
  2. The person who throws a stone into a crowd, and whilst not intending to strike anyone in the crowd does;
  3. The occupier of a shop who leaves a trip hazard across a walkway, and while not intending to do so causes a visitor to the shop to trip and fall;
  4. The employer who requires an employee to work in dangerous conditions, and while not intending any harm to the employee, causes them harm by requiring them to carry out their work in the manner instructed.

Practitioners in the field of psychiatric injury are going to encounter situations where the facts that give rise to a claim intersect and overlap with a number of other potential causes of action. For example, a claim based on serious and sustained workplace bullying may be capable of presentation as both a claim in negligence and under the Protection from Harassment Act 1997.

It’s vital however not lose sight of the fact that any claim in negligence is based on the breach of a duty or care owed the Claimant by the Defendant. It is advisable to take time to carefully consider the construction of the duty, along with this scope and range. For example;

  1. A Claimant is employed by a Defendant business;
  2. The Claimant is owed a non-delegable duty of care by the Defendant to provide them with a safe working environment and to prevent them from suffering from foreseeable injury caused by their work;
  3. The Claimant is bullied by a co-worker employed by the Defendant whilst at work, and during the course of their employment with the Defendant;
  4. The Claimant due to this develops a recognisable psychiatric injury.

On the basis of the basis of the above, our hypothetical Defendant may (subject to the available evidence), be held vicariously liable for the actions of its employee who bullied the Claimant. This is because it is in breach of its duty of care owed to the Claimant to provide them with a safe working environment. Contrast this with the following scenario;

  1. A Claimant is employed by a Defendant business;
  2. The Claimant is owed a non-delegable duty of care by the Defendant to provide them with a safe working environment and to prevent them from suffering from foreseeable injury caused by their work;
  3. The Claimant is bullied by a coworker employed by the Defendant outside of work and unconnected to the work for which the Claimant is employed;
  4. The Claimant develops a recognisable psychiatric injury as a result.

Our hypothetical Defendant in this scenario is unlikely to be in breach of any duty owed to the Claimant, with the actions of its employee occurring outside of work and entirely unconnected to work. The duty owed to the Claimant is to provide a safe working environment and to prevent the risk of the Claimant suffering foreseeable injury in the course of their work. Ergo, it is very unlikely that this hypothetical Claimant can and will establish a claim against their employer based in negligence.

The creation of a duty of care

When deciding if a duty of care exists, Caparo Industries plc v Dickman [1990] UKHL 2[2] established a 3 stage test that needs to be applied and satisfied by Claimants. A Court needs to ask itself;

  1. Was the harm caused to the Claimant foreseeable?
  2. Was there a proximate relationship between the Claimant and Defendant?
  3. Is the imposition of a duty would be fair, just and reasonable?

Lord Oliver when setting out this test made 4 points that are often overlooked but if they are borne in mind when addressing the issue of if a duty of care should be imposed, will provide a practical framework to better enable a fuller understanding of the overarching nature of each individual component;

  1. Firstly, that “… it is difficult to resist a conclusion that what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of foreseeability is such that it is from that alone that the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the Court’s view that it would not be fair and reasonable to hold the Defendant responsible”.
  2. Secondly, that whilst “Proximity is, no doubt, a convenient expression” it is important for a practitioner not to lose sight of the fact that “it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the Courts conclude that a duty of care exists;
  3. Thirdly, that despite this there are “… cases where, in any ordinary meaning of the words, a relationship of proximity (in the literal sense of ‘closeness’) exists but where the law… denies a remedy to the injured party on the ground of public policy”; and
  4. Fourthly that “… the attempt to state some general principle which will determine liability in an infinite variety of circumstances serves not to clarify the law but merely to bedevil its development in a way which corresponds with practicality and common sense”.

The categories of negligence that exist in law have been described by the Courts as “never closed”, with the common law remaining a flexible cause of action for Claimants who suffer psychiatric injury, and is likely to do so for the foreseeable future. While the circumstances in which duties of care can be created and their form has inspired many a text book, this text doesn’t propose to cover the history of the development of the law of negligence, but to provide a practical starting point in dealing with this issue.

Primary or secondary victim?

A Claimant who intends to bring a claim for psychiatric injury needs to be able to identify their potential claim as satisfying 2 factors. Firstly, that the claim is actionable, and secondly, that the Claimant can be identified as either a primary or secondary victim. This legal concept of was identified and set out in the case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310[3], where 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.”

Once this is done, the practitioner can begin to analysis the facts of the claim, consider what evidence needs to be gathered, and ensure that they are applying the relevant legal control mechanisms and tests to the issue of liability.

Primary and secondary victims are covered in greater depth later in this text but in essence, the distinction flows from a Claimant either being at direct risk of harm (so as to be classed as a primary victim), or not at direct risk of harm (a secondary victim) due to the act of alleged negligence.

What kind harm needs to be foreseen?

When we consider the issue of the forseebalility of harm, the outcome is dependent on what kind of claim we are dealing with, and how any psychiatric injury is said to be caused by it.

In a case where a Claimant is the primary victim of an act of negligence that causes nervous shock, the decision of Page v Smith [1996] A.C. 155[4] (whilst considered in greater depth later in this text) establishes that the foreseeability of psychiatric injury is not treated any differently from the foreseeability of physical harm. A Defendant’s duty to a primary victim is, as was case in Page[5], is the duty to take care not to cause personal injury to the Claimant, not to take care not to cause physical injury to the Claimant. Addressing the issue of foreseeability of harm, it was only necessary for a Court to ask if the Defendant should have foreseen that the Claimant might suffer personal injury (be it physical or psychiatric) due to their negligence.

In cases of nervous shock the question of if a Defendant should have foreseen the risk of psychiatric injury to the Claimant only needs to be considered in cases involving secondary victim cases, where different control mechanisms apply and the Court will need to ask itself if it was reasonably foreseeable that a person of reasonable fortitude would suffer some psychiatric injury due to the Defendant’s breach of duty (the same being considered in depth later in this text).

In cases where the development of psychiatric injury is not based on nervous shock but exposure to stressful events which lead to the development of a recognisable psychiatric injury the guidelines laid down in Hatton v Sutherland [2002] EWCA Civ 76 (and considered in greater depth later in this text) apply. The Court will need to be satisfied the injury was foreseeable due to the stress that the Defendant created, as opposed to stress from other events outside of its control, and duty.

An actionable claim?

There are a number of areas explored in this text where a claim for psychiatric injury, due to its underlying factual basis will not be actionable due to reasons of public policy, and the need to control the number of potential Claimants. As set out by Lord Wilberforce in McLoughlin v O’Brian [1983] 1 AC 410, Nd reiterated more recently by Spencer J in Young v Downey [2020] EWHC 3457 (QB), a Defendant “cannot be expected to compensate the world at large”.

It’s not possible to provide an exhaustive list of such claims, but practitioners need to be aware that in claims based on psychiatric injury, certain types of claim cannot succeed for reasons of public policy. These include;

  1. A claim for personal injury which develops out of the fear of an event that is yet to come to pass, where the Claimant is never at any actual risk of harm;
  2. A secondary victim who witnesses the death of a family member following them reiving treatment by medical professionals;
  3. A Claimant who after bringing a claim in the Employment Tribunal, seeks to bring a claim based on the same facts in the County Court.

Causation and material contribution

The development of a psychiatric injury is multifactorial, textured and subjective. Unexpected life events can cause psychiatric injury, but can also assist in an injured Claimant’s recovery. The mind is complex, and doesn’t heal in the same manner as flesh and bone. The effects of trauma can rest in a Claimant’s subconscious for years, only to be reawakened by a stressful and threatening situation, at which point they manifest into a psychiatric disorder which but for the Claimant’s benign traumatic memories, would not have been the case.

In nearly any claim for psychiatric injury there will be numerous stressors relevant to the development of a recognisable psychiatric disorder that are outside of the scope of a Defendant’s negligence. These can include

  1. A history of violent or sexual abuse;
  2. Troubled and emotionally toxic relationships;
  3. Bereavement;
  4. Substance abuse; and
  5. Underlying or pre-existing psychiatric conditions and vulnerability.

These factors are not exhaustive and itis not uncommon that upon careful examination of a Claimant’s medical records, that an alternative or competing cause of the complained of psychiatric injury is identified.

When dealing with claim for psychiatric injury, the Court will need in the main to apply the “but for” test. A Claimant needs to satisfy a Court that there is a causative link between a Defendant’s negligent conduct complained of, and the development of the psychiatric injuries they have suffered. When dealing with claims for psychiatric injury it is advisable to seek to be pragmatic and to ask, 2 questions;

  1. Firstly “what would have happened (in so far as the Claimant’s injuries are concerned), had the Defendant not breach their duty of care?”; and
  2. Secondly, “what is the evidential basis for this?”

It may seem reductive to break the process down to such base elements, but this can help bring clarity to factually complex matters, and focus as to where further enquires need to be made.

The answer to this question is almost always going to require the practitioner to consider if the injury can be said to be divisible and capable of apportionment (for example, are or competing causes of injury?) or if it is indivisible. Whilst both types of divisibility are covered later in this text, it is not uncommon in cases of psychiatric injury for a Claimant to be able to establish that the alleged breach of duty “materially contributed to their injury” (Fairchild v Glenhaven Funeral Services [2002] UKHL 22[6]). Where a Claimant can do this, then compensation for the entirety of their psychiatric injury is possible, despite any other competing causes or events.

A Court will need to ask if it is even possible to separate the injury suffered from all of its competing causes, or was it the totality of a Claimant’s experience which caused injury to their psyche? This can be especially true in claims for stress at work involving allegations of bullying or overworking. Factually these claims often involve a Claimant being exposed over to unreasonable and hazardous levels of stress for lengthy period of time. They will almost all feature a moment that can be described as “the straw that broke the camel’s back”, when their stress becomes unbearable, and psychiatric injury is suffered. Without understanding the prior events however, the reaction and its severity cannot be understood.

It is advisable that when seeking to “unpick the patchwork quilt”[7] that is the causation of psychic injury to remember that;

  1. A Claimant in the current legal landscape only needs to establish that the complained of act materially contributed to the injury which they suffered from;
    1. Material in this context means more than negligible;
    2. Practically, it’s not the highest of hurdles to clear, but any attempt to jump it must need to be supported with robust psychiatric evidence.

Apportionment

Once a Claimant has succeeded in establishing causation of their injury is due to a breach of duty committed by a Defendant the Court should always ask if it needs to consider the issue of apportionment. In cases of more commonly encounter orthopaedic injuries this will rarely be the case. For example, it’s unlikely that there will be several causes for a broken leg in a car crash, but in psychiatric injury claims the waters run deeper and can be turbulent.

Practically when approaching the issue, a Court is firstly going to seek to identify if the injury can be seen as either divisible, or indivisible. In the case of an indivisible injury (as set out above), with two separate wrongdoers but no external or alternative contributing factors then the Claimant is entitled to recovery in full from either of the wrongdoers.

If we work on an assumption that a Claimant can establish at least a material contribution towards the symptoms which they suffer, the next logical step is to consider if it is possible to divide the injury itself and apportion it against the prevailing causes.

Where an injury is divisible, this will often result in extensive and opposing medical opinion. Seriously psychiatrically injured Claimants (especially in stress at work claims) will have often been exposed to a number of events over a lengthy period of time, all of which will have served increase lowered their susceptibility to psychiatric injury. In such cases, a lengthy and detailed interrogation of the Claimant’s medical history is going to be required in order to understand and evidence what apportionment of injury should be reached.

Assistance can be taken from Bailey v Ministry of Defence [2008] EWCA civ 883[8], and the Judgment of Waller LJ siting in the Court of Appeal. Bailey is a tragic case where the Claimant had been a patient in a hospital managed by the MOD. She had undergone an unsuccessful procedure to remove a gallstone, the view of which had been obscured by bleeding during the procedure. Following the procedure, there was a period of lack of care and in particular a failure to resuscitate. The Claimant was diagnosed as having possibly developed pancreatitis. Her condition continued to deteriorate and she was moved to an intensive care unit where she underwent additional procedures, including surgery to the liver, and it was confirmed that she had pancreatitis. She was then moved to another hospital, where she swallowed her own vomit and went into cardiac arrest and suffered hypoxic brain damage.

The Claimant’s case was that physical cause of her final brain damage was her weakness and inability to react to her vomit, and that the contributory cause of her weakness was the negligent treatment she had received, which in turn made a material contribution to her overall weakness. “But for” these negligent acts, she could have reacted to the vomit and her injury, on the balance of probabilities, been avoided.

The Claimant succeeded in her claim in the High Court and the Defendant appealed. The Court of Appeal upheld the decision of the lower Court, with Waller LJ taking time to set out the common laws approach to the but for test with “In my view one cannot draw a distinction between medical negligence cases and others. I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the Claimant will have failed to establish that the tortious cause contributed… If the evidence demonstrates that “but for” the contribution of the tortious cause the injury would probably not have occurred, the Claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that “but for” an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the “but for” test is modified, and the Claimant will succeed”.

Practitioners are also assisted by the case of Dickins v O2 [2008] EWCA Civ 1144[9] and BAE Systems (operations) ltd v Konczak [2017] EWCA Civ 1188[10] which in cases of psychiatric injury reinforced that the concept of a material contribution applies (discussed at some length later). The Court of Appeal in Konczak through the Judgment of Underhill LJ made it clear at paragraph 71 that “What is therefore required in any case of this character is that the tribunal should try to identify a rational basis on which the harm suffered can be apportioned between a part caused by the employer’s wrong and a part which is not so caused. I would emphasise, because the distinction is easily overlooked, that the exercise is concerned not with the divisibility of the causative contribution but with the divisibility of the harm. In other words, the question is whether the tribunal can identify, however broadly, a particular part of the suffering which is due to the wrong; not whether it can assess the degree to which the wrong caused the harm”.

Acceleration and exacerbation of symptoms

When dealing with a Claimant who was already psychiatrically symptomatic and unwell prior to any alleged negligence, medical opinion can conclude a breach of duty has caused their pre-existing symptoms to be in some way been accelerated, exacerbated or worsened for a definable and finite period of time. As already avered to, it is not uncommon for psychiatrically injured Claimants to have a history of poor mental health and this will give rise to alternative avenues of argument for Defendants when causation of injury and apportionment is considered.

Acceleration or exacerbation arguments can prove to be a useful tool for a Defendant Practitioner by creating a metaphorical line in the sand for the recoverability of damages to advance to, but no further as the Claimant on passing this point in time, would be in the same position as they are now due their constitutional psychiatric issues.

It can be a tactically astute and attractive argument to advance before a Court demonstrating not only a reasonableness on the part of the Defendant, but also providing a sound and stable route to Judgment in cases of conflicting expert evidence. Considering the thought process that this catalyses, a Court may ask itself if both experts agree that a psychiatric injury has been caused to the Claimant and the only question is the period of injury, not its intensity, since both experts agree that this finite period has been caused by, how on the balance of probabilities can any opinion to go beyond this period be safely preferred?

It is an issue to remain conscious of, and practitioners where they can foresee the possibility it may arise are advised to not only research the psychiatric science behind an injury to make sure it is capable of acceleration or exacerbation, but also what the actual factual causes of any such material change are. This list of matters to consider is wide ranging and needs to be expert led, but can include;

  1. Where a Claimant’s medical records show and evidence a history of deterioration in their psychiatric state, is further future deterioration probable, and if so over what time scale;
  2. Whether the Claimant has a genetic predisposition to the developing a psychiatric disorders, or any form of underlying relevant condition present in their family history that needs to be considered;
  3. If there is any evidence in the Claimant’s medical history which demonstrates a worsening tendency to react violently, harmfully and aggressively to stressors in their life;
  4. Are there other sources of records relating to the Claimant which can be used to identify a pattern of deteriorating behaviour, such a probation or social service files.
  5. Evidence that the Claimant has been actively misusing drugs, alcohol or engaging in harmful activity, and if so, how would this interact or aggravate any underlying condition they may have.

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[1]    Caparo Industries plc v Dickman [1990] UKHL 2

[2]    Caparo Industries plc v Dickman [1990] UKHL 2

[3]    Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310

[4]    Page v Smith [1996] A.C. 155

[5]    Page v Smith [1996] A.C. 155

[6]    Fairchild v Glenhaven Funeral Services [2002] UKHL 22

[7]    White v Chief Constable of South Yorkshire [1999] 2 AC 455 where Lord Steyn said that the law on the recovery of compensation for pure psychiatric harm “is a patchwork quilt of distinctions which are difficult to justify.”

[8]    Bailey v Ministry of Defence [2008] EWCA civ 883

[9]    Dickins v O2 [2008] EWCA Civ 1144

[10]   BAE Systems (operations) ltd v Konczak [2017] EWCA Civ 1188