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Mental injury

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Unlike physical injury, where damage can be easily proved in most cases, mental injury is a far more difficult in many respects. For example, some policy concerns are:

  • Complexity and uncertainty in diagnosis. For example, how do we draw the line between grief and actual mental injury
  • Litigation can be an unconscious disincentive to rehabilitation. If there is the possibility of recovery or improvement, this might reduce one’s chances of financial gain in a mental injury case in a ‘claim culture’
  • Liability can be disproportionate; huge liability could result from a simple wrong

All of the above concerns were stated in the case of Frost v Chief Constable of South Yorkshire [1999], which will be discussed later. Courts now take a cautionary view of mental injury claims, assisted by extensive precedent. Such a view was taken in Mustapha v Culligan of Canada Ltd [2008, Canada], where no recovery was allowed for mental injury as a result of seeing a fly in an unopened bottle of water; mental injury was not foreseeable. Even where battery was found, in Wainwright v Home Office [2003], it was ruled that there was no intent to cause mental injury and therefore no liability resulted. This is an exception though.

Historical development

Firstly, in 1888 and the case of Victorian Railways Commissioner v Coultas [1888], it was said that shock not caused by any physical accident did not constitute an actionable mental injury. Then in 1897, Wilkinson v Downton [1897] recognised the scope of mental injury claims. They had to fulfil 3 conditions: extreme conduct, an intent to cause psychological harm, and resulting harm. Dulieu v White [1901] then increased the scope of mental injury claims by allowing claims where the claimant suffered shock through a genuine fear of immediate physical injury; in this case a shock caused by a carriage crashing into a room containing the claimant. Physical injury need not have been present. In Hambrook v Stokes Bros [1925], a final extension took place; that claimants can recover through shock caused by fear of physical injury to another. In this case, the claimant’s children. The distinction was made, however, that the claimant could succeed as she saw the incident itself, and was not told by a bystander.

Since Hambrook v Stokes, it appears that the requirements which mental injury claims must satisfy have been made more difficult to satisfy; starting with the case of Bourhill v Young [1943], where it was established that there must be a sufficient degree of proximity between the  claimant and the defendant for the claim to succeed. It was also established in this case, and in that of King v Phillips [1953], that mental injury must be foreseeable. The Australian case of Tame v NSW [2003] also confirms this.

The exception and extension from McLoughlin v O’Brian [1983] is worth noting. Here, it was ruled that usually, just as in Hambrook v Stokes Bros, the claimant must have been in close proximity (time and space) to an incident involving those to whom she has a close relationship with to succeed in a claim of mental injury for fear of others. In this case though, there was no proximity in time or space; claimant was driven to the hospital where she saw her husband and children in serious conditions following a car accident. Oddly though, she succeeded in her claim, as she was said to have witnessed the ‘immediate aftermath’ of the incident, which allowed her claim.

Today’s mental injury law

Today, in order to establish liability for mental injury, claimants are classified as either primary or secondary victims. Each classification has its own requirements to satisfy. Primary victims are those who are put in danger of physical injury and suffer mental injury, while secondary victims are those who suffer mental injury without being exposed to danger themselves. Although there is controversy over the effectiveness of using these two categories, for now it is still the law.

Primary victims

It is much easier to recover from a claim if you are a primary victim. The case of Page v Smith [1995] is, in my opinion, the best illustration of this. Here, the claimant, who was in remission from chronic fatigue syndrome (CFS) when he was crashed into while driving by another car. The claimant was not injured, though his property (his car) was damaged, and the fear of injury bought back his CFS condition, such that he could never work again. The claimant succeeded in recovering compensation for being unable to work for the rest of his life. This illustrates 2 points. Firstly, as a primary victim, who Page was, you need not actually suffer physical injury, but you must have been in genuine fear of imminent physical injury. The danger need not actually exists even, as long as it is subjectively believed. Secondly, mental injury caused to a primary victim need not be foreseeable. Furthermore, the eggshell skull rule is applied: the tortfeasor must take the victim as they find them: responsibility is taken for the CFS condition of Page even though Smith did not know about it at the time of the crash.

The controversy and ‘flexibility’ of the primary and secondary victim classifications has been continually tested in the last 10 years. In Frost v Chief Constable of South Yorkshire Police [1998], it was ruled that rescuers do not fit into the ‘primary victim’ category automatically; they must prove that they were at risk of physical injury while rescuing. In W v Essex County Council [2000], it was said that the categories were not closed, and that parents could be classed as primary victims if they felt responsible for bringing a child abusing adolescent into their house. This seems a very board extension of the category to me. Furthermore, in Re Organ Retention Group Litigation [2005], it was ruled that parents, whose children’s organs were removed without consent after their death, were primary victims. Finally, the category was narrowed in Grieves v FT Everard & Sons [2008] and buy xanax xr Insulating Co [2008]” href=”″>Rothwell v Chemical & Insulating co [2008], where it was held that claimants exposed to asbestos dust, evidenced through the development of pleural plaques, did not put them in danger of physical injury, therefore claims for mental injury for the fear of getting asbestosis were dismissed.

Secondary Victims

As previously mentioned, the case of McLoughlin v O’Brian [1983] allowed recovery of victims of mental injury who are part of the event, or its immediate aftermath, and therefore has a direct perception of events which had occurred. We would now class this case as a successful secondary victim case. The most legendary case of this nature is that of Alcock v Chief Constable of South Yorkshire Police [1992]. Following the Hillsborough disaster, this case involved the claims of many who saw the incident either directly from the stadium, were told of the incident by another, or saw the incident on TV. In this case, none of the claimants were successful, and 3 elements to secondary victim claims were identified:

  • A closeness of relationship between the claimant and the injured person; one of “love and affection”
  • Proximity to the accident in both time and space
  • A means and suddenness of shock

Even those who identified bodies at the mortuary later in the day could not claim; they were ruled not part of the immediate aftermath of the event. Although this is current law, these elements have been clarified in part. In Walters v North Glamorgan NHS Trust [2003], proximity in time over a period of 36 hours was recoverable, whereas in Sion v Hampstead Health Authority [1994], a father watching his son continually die over 2 weeks did not amount to sufficient proximity in time. In Taylor v A Novo [2013], proximity in both time and scape was failed with a delayed event; this can easily be reconciled with the asbestosis worry cases above. Finally, in Hinz v Berry [1970], Lord Denning preempted the idea that only sudden nervous shock could be recovered from, not worry for others or grief or sorrow from another’s death.

Mental injury to other parties


The primary and secondary victim classifications apply to rescuers too: those who attempt to save others from physical injury. Generally, recovery appears most likely for primary victims. Historic cases can be justified this way at least. For example, in Chadwick v British Railways Board [1967], a rescuer of victims from a serious train disaster was allowed recovery as mental injury was foreseeable. We could justify Chadwick as a primary victim as the train may have been hazardous. In Videan v British Transport Commission [1963], a stationmaster was killed trying to save his son trespassing on a railway line. The injured son’s claim failed, as it was not foreseeable that he would be on the line, though the rescuer’s estate’s claim succeeded. Lord Denning said:

The right of the rescuer is an independent right and is not derived from that of the victim. The victim may have been guilty of contributory negligence … but still the rescuer can sue.

It should be noted that the subsequent Occupiers’ Liability Act 1984 may have allowed the son’s claim to succeed, especially as he was only 2 years’ old.

In McFarlane v EE Caledonia [1993], a painter on an oil rig where 164 people were killed could not recover as he played a minor part, however the leading case on rescuers today is that of Frost v Chief Constable of South Yorkshire Police [1998], not to be confused with Alcock (above). Frost was a claim by the police rescuers who attempted to rescue victims of the Hillsborough disaster. All of the claims in this test case failed, as they did not fit the primary victim classification as they were in no danger; they did not satisfy the above requirements of a relationship of ‘love and affection’ for a classification of secondary victims to apply and employers could not be liable to prevent the witnessing of horrific events. While ambulance drivers may be assumed not susceptible to the events they may witness in the course of their jobs, firemen may still make claims for personal injury they sustain in the course of putting out fires, as can be seen in Ogwo v Taylor [1988].

Involuntary participants

Involuntary participants are those who intentionally cause harm but without fault. This isn’t as paradoxical as it sounds. For example, in Dooley v Cammel Laird [1951], a crane operator was shocked for the life of his colleagues after the rope holding his crane’s load snapped and the load fell to where his colleagues were. He successfully recovered as the shock was foreseeable: the defendants provided rope which was too thin. Today, we could suggest that this is a successful secondary victim recovery. But was there a close relationship of love and affection? Perhaps judges’ opinions have altered over time. A more conforming case would be that of Hunter v British Coal Corporation [1998], where the claimant failed the tests for primary and secondary victims.


As can be seen from the case of Hatton v Sutherland [2002], employers are entitled to assume that employees can handle the usually stresses and strains of their job, and claims of workplace stress must be reasonably foreseeable. Also, the circumstances have been previously known by the employer. Stress must be due to a employers breach of duty towards the employee. We have already mentioned that in Frost v Chief Constable of South Yorkshire Police [1998], an employer has no duty to prevent employees seeing horrific events. Initially, in Walker v Northumberland County Council [1995], a workplace stress claim was allowed as the risk was foreseeable. Just as in this case, in the case of Barber v Somerset County Council [2004], the claims were settled after the claimants had each had at least 1 nervous breakdown.


From this long section, it can be seen that prior to the 1990s, claims appeared to be based mainly on foreseeability, however they are now based on primary and secondary victim classifications, with the former being easier to recover from in most cases.

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