In most situations, the clinical diagnosis of a DSM-5 mental disorder […] does not imply that an individual with such a condition meets the legal criteria for the presence of a mental disorder or a specified legal standard […] Diagnostic criteria are offered as guidelines for making diagnoses, and their use should be informed by clinical judgment’ (American Psychiatric Association 2013: p. 21). A nurse told [Mrs Walters] that he was having a fit. This forms the basis for providing an opinion as to diagnosis and, critically in such a case, causation. These are discussed below. A claimant may suffer PTSD as a consequence of the nervous shock and a complicated grief reaction which would have occurred even if the claimant had not been exposed to the shocking event or events. He is deeply traumatised and develops post-traumatic stress disorder (PTSD). not recover as there was a lack of proximity. Mrs Justice Swift DBE said: ‘I am well aware that the Claimant's professional background gave her an unusual degree of insight into her sister's medical situation. VAT Registration No: 842417633. immediate aftermath of the fatal accident. She was told that, if he had a liver transplant, the chances of success were only 50–50 and he would be severely handicapped. Recent cases are used to illustrate both the rules that apply in this area of the law and the contribution of expert psychiatric evidence to the resolution of these cases. The NHS trust responsible for the relevant hospital admitted that he had not been properly diagnosed or treated and that, if he had been, he would have been given a liver transplant and would probably have lived. In a secondary victim case, physical proximity to the event is a necessary, but not sufficient, condition of legal proximity. This means that, in order for there to be a breach of duty, the circumstances must be such that a person of what the law terms ‘normal fortitude' or ‘ordinary phlegm' might suffer psychiatric injury by shock. That tends to support the fact that those incidents had a greater emotional impact than the time spent in the A & E Department at ESH.'. GEORGIA TORT LAW MANUAL . That obviously raises the question of what happens if (as is in reality highly likely in most cases) it is a complex aetiology which is the result of a combination of the shocking nature of events and of other factors as well. The extent of her distress when giving evidence was much greater when she talked of the journey to, and the time spent at, SGH. Secondary victims must be present when the negligence is in the process of causing damage and this (or its immediate aftermath) must also be when the shock would commence in order for a claim to succeed. Relatives of some of the 96 Liverpool football fans who were crushed to death unsuccessfully sought damages for the psychiatric injuries which they suffered. Secondary victims are treated differently by the law of tort and find it harder to recover damages as foreseeability of psychiatric damage being inflicted on the claimant is a necessary but not sufficient condition of establishing a duty of care. The essential ingredients are the suddenness of the experience, its horrifying nature and its direct perception through senses such as sight, hearing or touch. In Froggatt v. Chesterfield & North Derbyshire Royal Hospital NHS Trust, a hospital negligently diagnosed a woman as having breast cancer when PLAY. In addition, in Australia, the psychiatric disorder in question does not have to be a recognised psychiatric disorder. PLAY. "languageSwitch": true While it may be true that there should be limitations on claims as shocking events can affect a very wide number of potential results, a more liberal approach such as the one taken by Australian courts would allow more meritorious claims to succeed. Disorders generally must be recognised by a manual of psychiatry. Nevertheless, to achieve this, the courts depend on the expertise of psychiatrists. Paula Case, ‘ Had the point been live before us, it may be that the judge's conclusion could be justified on the basis that the Claimant's experiences on 18 and 19 July played a part in the cause and development of the adjustment disorder, as [Dr B] unsurprisingly accepted to be the case. It was an experience which had caused the Claimant considerable distress when speaking of it during her interview with [Dr C] in October 2011 and when giving oral evidence. The Claimant in Taylor v A Novo witnessed a consequence of the accident, not the accident itself. This was because the claim succeeded (a) simply in the context of a psychological reaction (unspecified in terms of diagnosis) to distressing events, (b) absent any sudden and shocking event, and (c) absent any evidential basis for a finding that Mr Ronayne's psychiatric illness was as a result of the sudden shock of that event. But in secondary victim cases, the term proximity is also used in a different sense to mean physical proximity in time and space to an event. At each stage in this sequence of events the Claimant was conditioned for what he was about to perceive […]. She started her class and then noticed six missed calls from her daughter. In the course of a race, which is being televised, D’s brakes fail and his car crashes into a crowd of spectators. Victims Compensation Victims Compensation When other resources are exhausted, the Georgia Crime Victims Compensation Program (Victims Comp) may be able to assist you with up to $25,000 in compensation for expenses and loss of income or support as a result of the victimization. KEVIN P. BRANCH, ESQ. • Ask whether the psychiatric illness can be ascribed (a) to a particular sudden, unexpected and shocking event, and (b) to the sudden, unexpected and shocking nature of that event, • Consider, and if necessary take into account, the possibility that it was some other response, such as extreme grief, that caused the illness, • Be able to ‘subtract' what would have occurred if there had been no sudden, horrifying event. Registered Data Controller No: Z1821391. This is the case despite the fact that It caused – and continues to cause – regular “flashbacks” in the course of her work. accident resulting in the death of a relative, as the purpose of the visit (identification) and the time frame took the secondary victim outside the results reached by courts after applying the criteria for recoverability can be incongruous and unjust. In particular, the Law Commission recommended that a secondary victim should no longer have to show proximity in terms of time and space and perception: 'how may hours after the accident the mother of an injured child manages to reach the hospital should not be the decisive factor in deciding whether the defendant may be liable for the mother's consequential psychiatric illness' ([6.10]). By contrast, in Australia, the courts have had In doing so, he relied on the witness evidence of the Claimant, Mr Sharma and Mr Shorter, on the Claimant's descriptions of “flashbacks” of the scene there and on her distress when giving oral evidence about the relevant events. Moreover, she had previously witnessed her mother's death, which took place suddenly and was what the Claimant described as “horrific”, even for her as a nurse, without sustaining a psychiatric disorder. Hannah, Amish?s wife, is watching the gig from the VIP area of the venue. A primary victim is a claimant who was directly involved as a participant in the incident that caused their psychiatric injury. battery and assault ⇒ Duty signifies a legally-recognised relationship between the defendant and the claimant, such that care must be taken ⇒ The parties need not be linked by contract for a duty to arise; tort is concerned with obligations outside or in addition to contract Where the line is to be drawn is a matter for expert psychiatric evidence.’. Tort law protects the interests of the individual and adjudicates private wrongs. If a rescuer does not meet this test, then they will be classified as a secondary victim and will therefore need to satisfy the control mechanisms before they can recover damages for psychiatric injury. It is nothing like the “assault upon the senses” to which Mrs Walters awoke […] I regard it as artificial to regard the sight of his wife in her pre-operative condition as constituting the beginning of an event distinct from what had gone before. The experience had to be wholly exceptional: ‘An event outside the range of human experience does not encompass the death of a loved one in hospital unless accompanied by circumstances which were wholly exceptional in some way so as to shock or horrify.’. If she had been allowed to recover damages for what happened 3 weeks after her mother's accident, it would logically have followed that she would have been able to recover damages for psychiatric illness even if her mother's death had occurred months, and possibly years, after the accident (assuming she could prove causation); the court considered it unreasonable to stretch so far the concept of proximity to a secondary victim. Hospitals are in a very particular position in relation to the psychological responses of individuals due to the illnesses or injuries of others even before one gets to the secondary victim issues. The article concludes with guidance for psychiatrists providing expert evidence to the courts in such cases. As a matter of analysis, both of us – psychiatrist and lawyer – agree whole-heartedly with this sentiment. She was preoccupied. It seems to me highly unlikely that she would have suffered such a disorder had Mrs Sharma survived. This article describes these control mechanisms and other relevant law using recent illustrative cases and with particular reference to the assistance that the courts can expect of psychiatrists as to diagnosis and causation. The early nervous shock cases involved primary victims, who either suffered or feared injury to themselves as a result of a dangerous event caused by the negligence of the defendant.7 When the law developed to recognise the possibility of claims by secondary victims, sudden shock on witnessing the damage-causing event was ‘The cases display a great deal of confusion as to which categories of plaintiffFootnote Charles Bagot is a barrister at Hardwicke. Previous Document. It was suggested that, as a result, she would have been more sensitive to the events […] and therefore more likely to find them “horrifying”. Indeed, the author is not aware of any reported secondary victim claim which has succeeded since the Court of Appeal clarified the law in Taylor v Novo in 2013, a decision which itself overturned a trial judge’s award of compensation in such a case. Is all this just and fair? should be regarded as primary and which as secondary victims […] The distinction may be more of a hindrance than a help.’. 67 Issue 4, p561-587, p. 563. Key Concepts: Terms in this set (16) Weddle v Glasgow City Council 2019. She said that she became ‘hysterical' and that she began screaming. In terms of a father’s claim for secondary victim status in the case of stillbirth, even if his concern is largely or entirely for the unborn child, this will not prevent recovery, as in the law’s eyes his concern is for a part of the mother - Wild and another v Southend University Hospital NHS Foundation Trust [2014] All ER (D) 46 (Dec) at In fact, he was suffering from acute hepatitis, which led to liver failure. Claimants are required to show that they suffered a recognised psychiatric disorder in order to establish duty of care. 5 In day room at St George's her brother-in-law said her sister had ‘gone'. secondary victims with psychiatric harm and makes suggestions for reform. The Australian law is also instructive on this matter, as it goes further to recognise the worthiness of psychiatric damages claims which showing a stringent application of the proximity requirement so that results can be quite unpredictable. No one can pretend that the existing law […] is founded upon principle […] Consequently your Lordships are now engaged, not in the bold development of principle, but in a practical attempt, under adverse conditions, to preserve the general perception of the law as a system of rules which is fair between one citizen and another.’. ‘Shock’ here has a specific meaning in law, not dissimilar to the exceptionally threatening or catastrophic nature of the threshold criterion in PTSD, and its meaning is not the same as the colloquial meaning: ‘To describe an event as shocking in common parlance is to use an epithet so devalued that it can embrace a very wide range of circumstances. He was subsequently taken to hospital; happily, he survived. 5th Jul 2019 Company Registration No: 4964706. She attended hospital and was discharged after a day or so. A distressing experience that is not sufficiently horrifying to agitate the mind violently will not satisfy the horrifying criterion. the passive and unwilling witnesses of injury, or of the threat of it, to others – seek compensation through the courts for the psychiatric injuries that they have suffered (traditionally but confusingly referred to as ‘nervous shock’ claims), there would in theory be the potential for a virtually limitless number of claims. The main problem here is of course that, in theory at least, the court needs to know whether the psychiatric injury was caused simply by the shocking nature of the events, or by other factors, or by some combination. Secondary victims: “control mechanisms”. b a person who is no more than a passive and unwilling witness of injury, or threat thereof, to another. Tort Law In general, they are illnesses that are within the ICD.’ (our italics). A fourth child, Michael, then aged 11, was a passenger in a following motor car driven by Mr. Pilgrim: this car did not become involved in the accident. The more horrific Flashcards. "hasAccess": "1", In order to do so, the parties need to establish that they are either primary or secondary victims. Full text views reflects PDF downloads, PDFs sent to Google Drive, Dropbox and Kindle and HTML full text views. Gravity. criteria are discussed in the section below. The relevance of psychiatric evidence to causation issues is highlighted. Facts: The claimant suffering from PTSD, uni student was at on the street of Glasgow, texting a friend. Several cases, when compared, demonstrate illogical results. I do not consider that it is realistic to carve up the incidents into those which did and did not play a part. courts have been stretching the criteria in sympathy with claimants or ignoring the criteria in other cases. Kevin Branch is a founding partner of McMickle, Kurey & Branch, LLP. It was [Dr B's] uncontradicted evidence that if the Claimant's psychiatric condition were the result of a sudden visceral attack of the type posited by the judge, then one would expect it to manifest itself in intrusive recollection. The woman’s Before she started her class at the gym she heard that a 20-year-old man had been knocked down. oyatekelioglu. as a result of perceived danger to himself) Lord Lloyd specifically defined reasonable foreseeability as a control mechanism. It has yet to include psychiatric illness caused by the accumulation over a period of time or more gradual assaults on the nervous system’. awarding damages to claimants whose disorder is not listed in a psychiatry manual. The appellant was then taken to see George. The defendant argued that the mother was a secondary victim since RE survived and the cause of RE’s permanent injuries was the negligent treatment following her birth. Lord Justice Tomlinson decided that the claim fell at the first hurdle, so it was unnecessary for the court to decide on the causation issue – i.e. He was mistakenly diagnosed as suffering from hepatitis A. 2 A secondary victim in law is: a a person who is involved mediately or immediately as a participant of an accident. *You can also browse our support articles here >. [There] was a series of events which gave rise to an accumulation during that period of gradual assaults on the Claimant's mind. victims of tortious conduct. But the sense in which it is used in the diagnostic criteria for PTSD must carry more than that colloquial meaning’ (His Honour Judge Simon Hawkesworth QC in Ward v Leeds Teaching Hospitals NHS Trust [2004]). Although the use of ICD or DSM diagnoses is not strictly speaking essential, the requirement that there should be significant distress and impairment of functioning means that the legal test effectively requires a diagnosis recognisable to the psychiatric profession. Firstly, I will look at the issue of proving the relationship of close love and affection between the secondary victim and primary victim in order to be successful in claiming damages for injury. There, the need for a recognised psychiatric disorder is a general rule but not absolute. She may possibly have a good claim, but probably not. A primary victim is someone who has been directly involved in an accident, whereas a secondary victim is someone who has witnessed the distressing events but has not been directly involved. Moreover, she saw a lorry swiftly driving down a hill and round a bend. The frank psychiatric injury element and the nervous shock element go together to form the requirement, first, that the event should be not just sufficiently sudden and shocking but that it should in fact cause the psychiatric injury and, second, that it should do so because of its sudden and shocking nature. She claimed negligence against the NHS trust whose employee had attended him on 26 October. It exemplifies classically the common law's approach of developing jurisprudence by accretion – an approach which has both the advantages and the disadvantages of flexibility and of the capacity to change to reflect developments in societal attitudes. It is simply playing with words' (cited in Law Commission 1998: para. […] Furthermore, having found none of the persistent recurrent flashbacks and/or nightmares that characterise PTSD, the judge should in my judgment have been far less ready to attribute causative potency to the two visual images, rather than to the whole set of circumstances which overcame Mrs Ronayne and the consequential effect upon her husband. She was herself a senior sister working in neurointensive care. Box 4 sets out the subsequent events that culminated in the baby's death. In any event […] I do not accept that the visual experience which the Claimant had on her arrival at ESH was as dramatic as that described by her. held in favour of the defendant. Spell. It should be noted that the claim of a secondary victim is not a derivative. The test applied requires that the harm suffered was reasonable foreseeable, that there was a close tie of love and affection However, it seems to me that it is necessary to be cautious in finding that the Claimant's professional expertise made the sight of Mrs Sharma more “horrifying” than it would have been to a person without that knowledge. It will almost always be helpful to refer to a system of classification, such as ICD or DSM, which is familiar to any other experts in the case, but being mindful of the warnings as to reliance on them in the medicolegal context (Box 12). Like the judgment in Ronayne, this is also a judgment that illustrates the relevance of psychiatric evidence to causation (Box 10). In Alcock, the court stated that there was no proximity where there was a time delay between a mortuary visit nine hours after the traumatic and 2) ... law of torts multiple choice questions and answers b operate arbitrarily in excluding from an entitlement to damages people who are not obviously less deserving of compensation than those who can succeed, c provide the courts with no control over claims by persons who were not themselves the primary victim of the relevant negligence, d provide for a claimant's perception of an incident through the medium of a third person, a is synonymous with post-traumatic stress disorder, b equates with grief, distress or any other normal emotion, c equates with the psychiatric injury caused to the claimant, d means that the claimant is claiming damages for the psychiatric injury caused by the shocking event. You should not treat any information in this essay as being authoritative. Vanessa Cashman, ‘Unpicking the Patchwork Quilt: Psychiatric Injury and Secondary Victims’ [2013], PI Brief Update. Brahams, Diana, ‘Clarification of the “eggshell skull’ doctrine’ [2001] As Lord Bridge observed in McLoughlin v O'Brien [1983]: ‘For too long earlier generations of judges have regarded psychiatry and psychiatrists with suspicion, if not hostility.’. 01 March 2018. In the Court of Appeal, judgment was again given in favour of Mrs Walters. by conflicting decisions in a type of “patchwork quilt”. In Brock v Northampton General Hospital Trust [2014], where the claimant's daughter died as a result of a negligently treated overdose, the claim failed because the claimant said that it was when the telephone call was received that she realised that her daughter was indeed going to die and ‘it is one of the fine distinctions that a telephone call giving bad news cannot found liability to secondary victims'. A rescuer, not himself exposed to physical risk by being involved in a rescue was a secondary victim, and as such, not entitled to claim. 5.29). Write. claimants are often not in a position to protect themselves from psychiatric harm, and meanwhile physical injuries are readily compensable even in cases of her son and her husband, in this case, we can note the incongruous results and see how some courts stretch the concept of secondary victim. What caused the shock was what she was told, so there was no direct appreciation of the event through sight or sound. There she saw Michael, who told her that Gillian was dead. Mr Owers witnessed a deterioration in his wife's condition following a stroke which was not diagnosed and treated sufficiently promptly. This explains the failure of a bystander to recover damages when she heard the noise of a fatal motorcycle accident; it was accepted that she had suffered ‘nervous shock' but the motorcyclist owed her no duty (Bourhill v Young [1943]). The details of this case are set out in Box 7. In Alcock, claims were brought by friends and family of spectators in the stadium in the proximity test which is set out in Alcock. As we have already made clear, it is not sufficient to prove the existence of positive psychiatric illness or recognisable psychiatric harm. There can be no doubt that these circumstances, witnessed by the appellant, were distressing in the extreme and were capable of producing an effect going well beyond that of grief and sorrow. However, it is to be noted that, in the Claimant's first account of the events of 12 May 2009, given in October 2011 for the purposes of [Dr C's] Condition and Prognosis Report, there is a reference to the fact that Mrs Sharma “was in a lot of pain” whilst at ESH, but no mention of a distressing scene such as that described in the Claimant's witness statement of July 2013. Close this message to accept cookies or find out how to manage your cookie settings. 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