By : Emily Formby
What do you need to prove to recover damages for mental injury?
You must prove that the claimant has sustained a ‘recognisable psychiatric illness’ caused by the defendant’s breach of duty. A recognisable psychiatric illness is not shock, grief, distress or some other emotion, but a positive illness recognised as such by psychiatrists. Lord Lloyd makes the distinction clear in Page v Smith  2 All ER 736 @ 760. An earlier, but equally good, analysis is that in Lord Bridge’s speech in McLoughlin v O’Brien  1 AC 410 at 431. The term ‘nervous shock’ is out-of-date.
Do you mean a nervous breakdown?
No, you do not have to establish that the claimant totally fell apart, had to be sedated or hospitalised. It is enough to show that he or she suffered an illness such as depression, post-traumatic stress disorder or chronic fatigue syndrome. On the outside, the claimant may appear entirely normal even to the extent of working, but experiences flashbacks of the accident and has regular visits from what Churchill called “the black dog”. What is vital is that there is a defined illness leading from the initial shock.
What evidence do you need, then?
Expert evidence from someone adequately qualified to give it, such as a psychiatrist or a clinical psychologist. The court is unlikely to accept the opinion of an orthopaedic consultant on a psychiatric/psychological issue, but might well accept the evidence of the claimant’s general practitioner in a small case.
Where does the distinction between ‘primary’ and ‘secondary’ victims come in?
We have Lord Oliver to thank for this. In Alcock v Chief Constable of South Yorkshire Police  4 All ER 907 (the Hillsborough disaster case) he postulated two classes of claimants: those actually involved as participants in events giving rise to claims, such as drivers or passengers in car crashes, and those who unwillingly witness such events, e.g. so-called ‘bystanders’. The first are ‘primary’ victims, the second ‘secondary’ victims. A primary victim will always have a valid claim whereas a secondary victim will normally only do so if three conditions are satisfied: proof of a close tie of love and affection with the person involved in the incident, presence at the incident or its immediate aftermath, and direct perception of the incident or its aftermath as opposed to learning about it from someone else or watching it on television.
How can I be sure of the difference between a 'primary' and 'secondary' victim?
Primary victims are generally straight forward: those who are actually involved. Defining secondary victims is much harder: Lord Oliver highlights the need to establish a duty owed by the defendant directly to the potential claimant - a duty which depends not only on the reasonable foreseeability of harm but also on the 'proximity' or directness of the relationship between the secondary victim claimant and defendant. The three steps are supposed to prove the foreseeability and proximity and therefore indicate the existence of the duty of care.
What about a "bystander"?
Bystanders are usually secondary victims, and so any potential claimant must fulfil the three steps. However, if the claimant is not actually in danger but, because of the sudden and unexpected nature of the negligent incident, reasonably thinks he is, then the bystander becomes a primary victim. Therefore, in Dulieu v White & Sons  2KB 669 when the claimant watched as a horse and cart careered into the pub where she was standing and appeared to be about to run her over, she recovered damages for psychiatric harm even though the horses actually stopped before they hit her: her apprehension of immediate harm was reasonable. However, in the Piper Alpha claims, claimants on a ship near to the oil rig failed to prove their (understandable) terror and belief they were about to be killed was reasonable. In Hegarty v EE Caledonia  2 Lloyd's Rep 259 the claimant watched as a fireball shot from the rig towards the boat he was on. It stopped some 50m from the ship and so, while the claimant's fear was genuine, it was not rational because he was not actually in danger. He could not, therefore, be a primary victim.
Is it as "easy" as that?
Well, no. Until recently, it was assumed that, unless the claimant, as a primary victim, had also suffered physical injury, it must be proved that it is reasonably foreseeable on the part of the defendant that the claimant would suffer psychiatric harm. Page v Smith  AC 155 changed all that. The House of Lords decided that it was sufficient to ask whether the defendant should have foreseen that the claimant would suffer any personal injury and that it was irrelevant whether the defendant should specifically have foreseen that someone in the claimant’s position might sustain only psychiatric injury. Thus, Mr Page recovered for recurrence of chronic fatigue syndrome after being involved in a road traffic accident in which neither he nor anyone else had sustained physical injury.
What about rescuers?
Here we have a special category of psychiatric victim. Those who assist at the scene of an accident are secondary victims because they usually do not know the primary victims of the accident and are thus unable to satisfy the ‘love and affection’ test. However, by virtue of their response to the "cry of distress" rescuers are treated differently. In a civilised society the policy of the law could hardly be to discourage brave souls who wade in to help the injured without thought for their own well-being. The leading case remains the judgment of Waller J in Chadwick v British Railways Board  1 WLR 912. Controversially, although many relatives of the Hillsborough victims were denied compensation, the claims of some of the police officer rescuers at the event were allowed: Frost v Chief Constable of South Yorkshire Police  3 WLR 1194. By virtue of the rescuers involvement in the negligent incident, they become primary victims, thereby bypassing the "three steps" test.
Does the Criminal Injuries Compensation Scheme mirror the common law?
Not exactly. An act of violence committed on and resulting in psychiatric injury to the applicant will lead to an award of compensation. Such a claimant might be regarded as a primary victim within the categories described above. Where the applicant has not sustained any physical injury, however, Paragraph 9 of the 2001 Scheme requires proof that the applicant was ‘put in reasonable fear of immediate physical harm to his own person’ before compensation can be awarded. However, an applicant who might be described as a bystander who is not put in such fear for his own safety will also have a valid claim if he witnesses an act of violence on another and was both present at the scene of the violence or its immediate aftermath and had and still has a close tie of love and affection with the victim (unless the victim is dead).
What damages can be recovered?
The sky (or rather your evidence) is the limit so far as special damages are concerned. If the illness has caused inability to work or a need for care, quantum is assessed on the same lines as if dealing with physical injury. General damages depend on the degree of suffering and prognosis. The Judicial Studies Board Guidelines (5th edition) suggest that a minor PTSD claim might be worth upwards of £2,000, whereas the most severe psychiatric claim will attract general damages of up to £57,500.
Bit complicated isn't it?
Yes, very, as the Law Commission recognised in its report ‘Liability for Psychiatric Illness’ (No 249). It produced a draft bill simplifying what has become a very complicated area of law. Its recommendations would mean that many of the Hillsborough relatives whose secondary victim claims were dismissed because they failed to satisfy the proximity tests referred to above would have succeeded. However, the draft bill has joined the dust-covered pile of Law Commission recommendations on the floor of a room somewhere in the Palace of Westminster.