By Peter Garsden Partner in Abney Garsden McDonald and Vice President of ACAL (Association of Child Abuse Lawyers)
If an alien landed on Earth with abundant common sense, and was told that the English legal system imposed the following rules, then he would find it hard to believe, because these rules are more like legal fiction than natural justice.
- It is not possible to claim for mere psychiatric injury unless it amounts to more than the usual shock reaction to a frightening incident.
- If medical science does not recognise the mental state as a disorder it is not possible to claim for it unless it is accompanied by some physical injury
- If accompanied by physical injury, any sort of emotional reaction to an event is compensatable.
- The normal grief reaction to death is not claimable at law but pathological grief is compensatable.
- If you are a bystander and suffer shock you will receive less (or nothing at all) if you are a stranger than if you are a blood relative of the accident victim.
- If you witness the accident to a relative on the television you will receive nothing whereas if you go to the hospital immediately afterwards and suffer shock you are eligible for compensation as long as you are a close enough relative to the victim.
Our senior judge’s attitude to psychiatric injury is unfortunately prejudiced and dominated by the English stiff upper lip influence of Tom Brown school days, and suffering caused by two World Wars. The feeling that there is something rather unacceptable about people like the Americans who go for counselling if they break a nail influences our law. Innate suspicion that if one cannot see the injury it is a try on by a victim of the compensation culture is prevalent. Thus psychiatric injury cases inevitably cause more debate than other types of physical injury.
In the recent Court of Appeal decision of Rothwell v Chemical & Insulating Co Ltd and Another –  EWCA Civ 27 the court heard 5 related appeals by Defendants against a finding at trial that the condition pleural plaques was physical damage which entitled the Claimants to be awarded damages for anxiety which fell short of a psychiatric condition. Pleural plaques has been accepted for years to be one of the first signs of asbestosis and been compensated by the courts. There was, however no appellate authority on the subject. The argument was that it was symptomless and did not amount to injury. The Court of Appeal agreed. If one reads the judgment mention is made of the claims farmers who make it their business to encourage the victims of industrial disease to make claims. Whether or not the court was reacting against such practises is not easy to judge. All claimants failed because they did not have claims for physical injury, thus entitling them to claim for damage falling short of a psychiatric illness. Even one claimant who had been awarded damages at first instance, because he had sustained a depressive illness after discovering he was suffering from pleural plaques, lost. The Court of Appeal quoted from a case as old as 1861 namely where Lord Wensleydale put it in Lynch v Knight (1861) 9 HLC 577 at p. 598:
“Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone; though where material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested”
So even the Claimant who did suffer a depressive illness failed because the Court of Appeal thought that it was not a foreseeable consequence of exposing him to asbestos at work, following the guidelines laid down in Page v Smith  1 AC 155 HL. This was a harsh decision by any reckoning.
In the simpler case of Reilly & Another –v- Merseyside Regional Health Authority (1994) an award of £1,750 damages for having been trapped in a lift for 1 hour 20 minutes due to negligence, was overturned on appeal because there was no physical injury associated with the psychiatric injury alleged, which fell short of an identifiable psychiatric condition in that it did not amount to post traumatic stress disorder or chronic anxiety state. There was a similar unsuccessful argument in this case that there had been some physical injury.
In Nichols v Rushton (1992) The Times 19th June, the plaintiff was involved in a motor accident and suffered no physical injury but suffered a nervous reaction falling short of an identifiable psychiatric illness which amounted to mental suffering, fear and anxiety.
The principle that a free standing psychiatric injury is compensatable where it is the foreseeable consequence of a breach of duty is only 10 years old. In Page v Smith the Claimant had been involved in a road traffic accident and as a result had suffered from chronic and permanent nervous shock (myalgic encephalomyelitis chronic fatigue syndrome or post viral fatigue syndrome). Similarly the right to claim damages for stress at work is only 4 years old Barber v Somerset CC  ICR 613. It took until the year 2000 for the House of Lords to finally accept that dyslexia was personal injury for which compensation could be claimed Phelps v Mayor of London Borough of Hillingdon & ors. House of Lords (2000
The concept that the entire country’s care system was riddled with child abuse for which compensation should be payable only arose in around 1995. For those around at the beginning such as myself, the prospect of the courts entertaining claims for psychiatric damage which were between 15 and 50 years out of time was a daunting one, when most of the public could hardly believe that abuse of the type published actually took place. To go even further and accept that priests are commonly guilty of such behaviour took credulity to even greater heights. Yet the courts have shown themselves capable of mental gymnastics to allow Claimants to successfully recover compensation. One only has to read the judgment in KR & Others v Bryn Alyn Community (Holdings) Ltd.  EWCA Civ 85) to see how the Court were prepared to stretch the law of limitation in order to give compensation which went beyond the JSB guidelines averaging around £45,000 in the North Wales cases.
A law which says that the nearest and dearest is not entitled to claim for what is the normal reaction to the death of a close relative even though the death was caused negligently, unless that reaction goes beyond normal limits is perhaps a little insensitive, and akin to the expression “just stop snivelling and get on with it”. In Walters v North Glamorgan NHS Trust (2002) – a 35 year old woman at Swansea High Court received the sum of £16,000 for a severe pathological grief reaction resulting in loss of employment as an Auxiliary Psychiatric Nurse following the death of her son due to medical negligence. Whereas in Hinz v Berry  2QB 40CA, a mother who witnessed the death of her husband and the serious injury of some of her children was still suffering psychiatric injury four years after the incident. She was only allowed to recover the extra element on top of “normal grief” In the child abuse field the concept that the parents of children who are abused become entitled to claim where their own children were exposed to an abusive foster child provided negligently by the council and suffer a mental illness was established by the case of W & Others v Essex County Council & Another (2000)
The height of artificiality are the rules surrounding what can be termed rescuer and secondary victim cases, where a claim is usually made for psychiatric illness caused by the witnessing of a traumatic event. As always the traditional English judiciary are terrified of the concept of the “flood gates” opening to allow those who have been damaged from making claims for what they are entitled to. Nothing could be more obvious than the Hillsborough cases where the victims did what they are best at on Merseyside and mounted multiple claims for compensation. There are several judgments such as McLoughlin v O’Brian  1 AC 410 where the concepts of event and relationship proximity were established. In other words one has to be a close relative of the accident victim as well being present fairly soon afterwards, to be able to claim. In Alcock v Chief Constable of Yorkshire Police  2 AC 310 the concept of the primary victim and secondary victim were established. The many victims who had witnessed the Hillsborough disaster were categorised into several groups. Control mechanisms were imposed on secondary victims which did not apply to primary victims. Inevitably these controls are artificial and did not extend, for example to allowing those who witnessed the disaster on television, even though they were closely related to the victims, to being able to claim. The rules extended to a rescuer at the Piper Alpha disaster from being unable to claim in McFarlane v E E Caledonia Ltd (1983) because it was established that a person of reasonable fortitude would not be liable to suffer in the way that the claimant did.
So is there any hope? Well, although it has taken a long time for the judicial process to become sensitive enough to the less obvious type of injury like psychiatric damage, grief, post traumatic stress disorder, depressive illnesses, and dyslexia where there are no blood and guts to show an injury has taken place, the law is slowly moving in the right direction. However the intransigence of the law can conveniently be summarised by the comments of Lord Steyn in Frost v Chief Constable of South Yorkshire  AC 455, paragraph 500:
“(T)he law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify … In my view the only sensible general strategy for the courts is to say thus far and no further. The only prudent course is to treat the pragmatic categories as reflected in [case law] as settled for the time being, but by and large to leave any expansion or development in this corner of the law to Parliament. In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way that is coherent and morally defensible. It must be left to Parliament to undertake the task of radical law reform.”
© Peter Garsden, Abney Garsden McDonald solicitors