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1        [2001] AC 592.

Here, as in many first instance decisions around the country at that time, there was a suggestion that if there was to be no statutory codification of the law, the criteria for establishing psychiatric injury needed to be extended.

In 2000 an unusual case came before the High Court The Creuzfeldt-Jakob diease litigation, Parul Nicholas Andrews & Ors v Secretarey of State for Health.¹ There were six cases in which the claimants alleged that they had suffered psychiatric damage as a result of being told that they might develop Creuzfeldt-Jakob disease as a result of having been given Human Growth Hormone. Mr Justice Morland held that there was a difference between primary victims of accidents such as the claimants in Page v Smith and claimants whose fear was not from an immediate event but for the future. Although the defendants had breached their duty of care by injecting the claimants with Human Growth Hormone this did not make them primary victims as no physical symptoms had developed. If they were primary victims so too would be those exposed to asbestos or radiation and the potentially huge number of claims would make litigation and insurance impossible. However there was a close proximity in the claimant’s relationship with their doctors and there was a finite number of such claimants, probably tens rather than hundreds. It was reasonably foreseeable that they would receive the shocking news that they were a risk of developing a degenerative brain condition and each such death from Human Growth Hormone would increase this fear. If the psychiatric injury was foreseeable it should be untrammelled by spatial physical or temporal limits. On the facts and circumstances of this litigation there was no reason why public policy should exclude the claimants from compensation. This is an unusual decision which has not been followed and must now have been overruled by the pleural plaques cases.

1        [2000] 54 BLMR 111.

In 2001 Bursell J considered a claim for psychiatric injury, namely post-traumatic stress disorder, brought by a father who was estranged from the mother but who attended the hospital soon after the birth of their child. He was mistakenly given a dead baby to hold when in fact his own child was alive and he sustained a psychiatric illness (Farrell v Avon Health Authority¹). It was held that he had suffered a recognisable psychiatric disorder, which had been triggered by the event, and it was reasonably foreseeable that the defendant’s conduct would cause a recognised psychiatric disorder. The claimant was held to be a primary victim as he was involved in the physical incident. This avoided policy decisions which it was held (obiter) had be applied to secondary victims.

1        [2001] Lloyd’s Medical Law Rep 485.

In 2002 the Court of Appeal considered a case involving psychiatric injury as a result of the sudden death of a child. In North Glamorgan NHS Trust v Ceri Ann Walters¹ the claimant was the mother of a baby son who had died in 1996 as a result of the defendant’s negligent failure to diagnose his acute hepatitis. For a period of 36 hours the claimant shared a hospital room with her baby. She was wakened by the baby having an epileptic fit, followed by a period of misdiagnosis and delayed treatment for brain damage, which ended with the claimant being told that the brain damage was so severe that it was incompatible with life. The claimant then agreed to and was present when the baby’s life support was turned off. The Court of Appeal held that the claimant was not a participant, in that there was no foreseeable risk of physical injury to her. Further she had not played any causative role in her son’s death. She was therefore not a primary victim. However the court regarded the period of 36 hours as a single horrifying event, during which the mother received successive blows to her nervous system and as such she qualified as a secondary victim. In this case, as in subsequent cases, the requirement that the psychiatric illness must be caused by a single shocking event has been interpreted liberally, in that a single shocking event can be composed of a number of connected events experienced over a period of time.

1        [2002] EWCA 1792.

In December 2002 Forbes J considered the claims of secondary victims who had developed recognised psychiatric illness as a result of clinical negligence (Anita Froggatt, Paul Froggatt and Dale Gale (by his mother and litigation friend Anita Froggatt) v Chesterfield & North Derbyshire Royal Hospital NHS Trust).¹ Mrs Froggatt was wrongly diagnosed as suffering from invasive carcinoma of the breast and underwent a mastectomy. Shortly afterwards she was told that there had been a mistake and the lump had been benign. Naturally Mrs Froggatt was awarded damages for her physical injury and a psychiatric injury. The second claimant was her husband who alleged that he had sustained a sudden shock when he saw her undressed for the first time after the mastectomy and as a result had developed an adjustment disorder. The third claimant was her son, who had overheard a telephone conversation in which Mrs Froggatt had discussed the fact that she had cancer and was likely to die. Her son developed moderate post-traumatic stress disorder. The defendant applied to have the second and third claimants’ cases struck out. The application was refused on the basis that both claimants were within the necessary criteria required by secondary victims in Alcock. It was held that they had a sufficiently close tie of love and affection, there was sufficient closeness in time, the discovery of a horrifying event was by direct sight or sound and the psychiatric illnesses which they developed were consequent upon an affront to their senses.

1        QBD 13/12/2002

In the case of Galli-Atkinson v Sephal¹ the Court of Appeal again considered the interpretation of immediate aftermath. The claimant’s 16 year-old daughter was walking to her ballet class when the defendant’s car mounted the pavement and struck her, causing horrific injuries from which she died. The accident occurred at about 7.05 pm and the claimant arrived at the scene where a police cordon had been erected a little over an hour later. She was told by a police officer that her daughter was dead. The claimant suffered an immediate and profound reaction, collapsing to the ground, screaming hysterically. Witnesses described her reaction as unforgettable.

1        [2003] EWCA Civ 697.

The claimant then attended the mortuary with her husband and older daughter and after her husband had identified the body and confirmed the death to her the claimant again had a profound reaction, falling to her knees, inconsolably sobbing. She then saw her daughter whose face and head were disfigured. The family left the mortuary at about 9.20pm. The claimant did not recover from the shock and turned her home into a shrine for her deceased daughter. She was further troubled by a deep sense of injustice about the sentence imposed upon the defendant following his conviction for causing death by dangerous driving.

At first instance the Recorder concluded that the claim was bound to fail on the basis that the law did not provide a remedy for shock which arose simply from being told about the death of a loved one. He held that the claimant’s reaction would have been no different had she been told at home, rather than at the scene of the accident. She did not see anything shocking at the scene itself and what she saw during the mortuary visit could not be considered to be part of the immediate aftermath of the accident, as the primary purpose of the visit was to identify the deceased’s body, relying on the judgment of Lord Jauncey in Alcock.

The Court of Appeal accepted that the claimant had suffered an extreme reaction to her daughter’s death and, as a consequence, had developed a recognisable psychiatric condition that could properly found a claim for damages. It was common ground between the parties that in order for the claim to succeed all four of the criteria in Alcock needed to be satisfied.

The Court of Appeal held that the immediate aftermath of the acci­dent extended from the moment of the accident itself until the moment when the claimant left the mortuary. It held that the Recorder had erred in artificially separating the mortuary as being simply to identify the deceased’s body and holding that it was necessary to ‘complete the story’ as far as the claimant was concerned. Thus it was part of one, uninterrupted sequence of events and the appeal was allowed.

In 2004 the issue of the status of a primary victim again came before the House of Lords for consideration and Page was applied. In British Steel Plc v Simmons¹ a 37-year-old burner at a steelworks, was injured when he fell from a table at work. He sustained a severe blow to his head, as a result of which his ear suppurated and he suffered headaches and blurred vision for several weeks. He also claimed that the accident had exacerbated a pre-existing skin condition and resulted in a depressive mental disorder. The House of Lords held that the evidence looked at as a whole presented a coherent picture of a causal link between the accident and both the claimant’s dermatological and psychiatric conditions. The defendant had to take the claimant as they found him, albeit that a more psychologically robust individual might have recovered from the accident without developing either a dermatological or a psychiatric injury.

1        [2004] UKHL 20.

The principles with regard to primary victims are clear. If there is a direct causal link between an accident and a psychiatric condition, the claimant will succeed, even if extent of their injury is greater than that of the person of average robustness. It is equally clear that there is a trend away from the tight restrictions on secondary victims post Alcock. However, since Farrell, Froggatt and Gali Atkinson, subsequent decisions indicate that it does not follow that a claim for damages in respect of a horrifying death of family member due to negligence in a hospital, even if it causes a recognised psychiatric condition, will come within the limitations placed upon the law in respect of psychiatric injury.

In Julia Ward v Leeds Teaching Hospitals NHS Trust¹ Mrs Ward sought to recover damages from the defendant NHS trust for psychiatric injury following the death of her daughter caused by the trust’s admitted negligence. Her daughter had failed to regain consciousness after a straightforward operation for the removal of her wisdom teeth. Mrs Ward contended that the time spent at the hospital prior to her daughter’s death and seeing her daughter in the mortuary had resulted in her suffering post-traumatic stress disorder. It was held that the diagnostic criteria for a finding of post-traumatic stress disorder required a shocking event of a particularly horrific nature and the death of a loved one in hospital did not meet that description, unless also accompanied by circumstances that were wholly exceptional in some way, so as to shock or horrify. It was further held that there was no causal link between the death of Mrs Ward’s daughter and her psychiatric condition. The death of her daughter was not outside the range of human experience and there was no evidence that the surrounding events at the hospital had caused the post-traumatic stress disorder. The medical staff had kept Mrs Ward fully informed of the seriousness of her daughter’s condition without alarming her unduly or exposing her to any shocking sights or sounds. The case was not appealed.

1        [2004] EWHC 2106.

In a recent case the House of Lords again interpreted recovery for psychiatric injury restrictively. In the case of Johnston v NEI International Combustion Limited: Rothwell v Chemical I Instulating Company Limited & Ors:  Topping v Benchtown Limited (Formerly Jones Brothers Preston Limited): Grieves v FT Everard & Sons & Ors,¹ there was an appeal by claimants who had developed pleural plaques as a result of exposure to asbestos but had no clinical signs or symptoms of mesothelioma. The decision of the Court of Appeal had been that pleural plaques were not in themselves damage that could give rise to a cause of action. Further, they did not become actionable damage when associated with the increased risk of mesothelioma and the attendant anxiety which that engendered. One of the claimants, Mr Grieves, had developed not only natural anxiety and concern on being told that he had developed pleural plaques, but a recognised psychiatric injury, namely depression.

1        [2007] UKHL

The House of Lords held that symptomless plaques were not damage that could found a cause of action, because not only did they cause no immediate symptoms but it was important that save in the most exceptional case, they would never cause any symptoms and did not increase the susceptibility of the claimants to mesothelioma or shorten their expectation of life. The law allowed the risk of future disease and consequent anxiety to be taken into account when assessing the quantum of any award made in respect of a physical injury which could be compensated but in the absence of such an injury there was no cause of action. Their Lordships were clear that adding a number of components, none of which were individually actionable, could not amount to an action.

Mr Grieves, who had sustained a psychiatric injury, was excluded on the basis that his psychiatric condition was not a reasonably foreseeable consequence of his employers’ breach of duty. It was not reasonably foreseeable that the creation of a risk of mesothelioma would cause psychiatric illness in a person of reasonable fortitude. His case was distinguished from British Steel Plc v Simmons (above), on the basis that Mr Simmons’ psychiatric condition arose out of the same accident which caused his minor head injury and his dermatological injury. Mr Grieves’ case was further distinguished from Page v Smith on the basis that his psychiatric condition was not caused by anything stressful or alarming about the conditions in which he was working, when he inhaled the asbestos fibres and the circumstances in which his condition developed were far removed from anything that could reasonably have been foreseen at the time. Everything that happened afterwards could not be taken with the benefit of hindsight to have been reasonably foreseeable. It was held that in Page v Smith Mr Page had suffered psychiatric harm as a result of being exposed to, but escaping, physical harm. His reaction had been an immediate response to a past event. Mr Grieves on the other hand developed a psychiatric condition as a result of learning of an increased risk of developing mesothelioma at some uncertain date in the future. Their Lordships considered that allowing Mr Grieves’ claim would constitute an extension of Page v Smith which was contrary to the, ‘thus far and no further’ guidance of Lord Steyn in White v Chief Constable of South Yorkshire Police.