By - Harshita Jhunjhunwala

Psychiatric injury as per the Oxford Law Dictionary is defined as “A recognized psychiatric disorder caused by sudden shock”, when we look at it with regard to tortious claims, psychiatric injury may arise, as result of another’s negligence or may be an effect of a traumatic accident.

The following situations are to be kept in mind while ascertaining a broad outline with respect to the conditions under which compensation for psychiatric liability can be claimed.

· The plaintiff must suffer from a psychiatric illness. Damages are not awarded for mere grief or distress with the exception of bereavement damages for spouses and parents of children under eighteen.

· The plaintiff’s psychiatric injury must be induced by shock- either threatening their own safety or involved witnessing exceptionally distressing injuries to others. It can also be referred to as Post Traumatic Stress Disorder (PTSD).

· The plaintiffs are to be divided into primary and secondary victims, but the criteria for this distinction still remains ambiguous. Primary victims are those who are directly involved in the incident as participants, particularly within the range of foreseeable physical injury, while secondary victims are those who witness the death/injury to a third party.

· Generally the plaintiff’s psychiatric illness must be a reasonably foreseeable consequence of the wrongdoer’s act, but a primary victim may claim damages for unforeseeable psychiatric illness as long as some sort of personal injury (physical or psychiatric) was reasonably foreseeable. This principle was laid down in Page vs Smith (1996) AC 155. (Hereinafter Page)

· A secondary victim has to satisfy certain criteria also known as “the Alcock criteria’’ since it emerged in Alcock vs Chief Constable South Yorkshire Police (1992) 1 AC 310. (Hereinafter Alcock). The secondary victim must-

a) Have a close tie of love or affection with the dead/injured person;

b) Be sufficiently close in time and space to the incident or its immediate aftermath;

c) Have perceived the incident or its immediate aftermath directly through his/her unaided senses.

d) That he or she is not abnormally susceptible to the kind of psychiatric harm suffered.

e) That the psychiatric illness was brought about by ’shock’

· A secondary victim may not be entitled to claim if the dead/injured person was wholly or substantially liable for the incident.

Love and affection is a very subjective emotion. A woman may not be in as close a tie of affection and love with her spouse as she may be with (say) her best friend. So if the rules of Alcock were to be observed, then it would not be possible for her to claim damages on psychiatric injury suffered due to her friend’s accident, which would have a graver affect on her than an injury experienced by her husband’s accident. It should also be noted that the eggshell rule principle comes into play once the fourth condition is fulfilled. Thus, if an ordinary person would have suffered, post traumatic stress recovering within a week, but the claimant suffers post-traumatic stress lasting a year, during which time he/she cannot work, the defendant would not be liable for the full year’s worth of lost earnings: Page. Take the condition: that psychiatric injury must be brought about by shock. Say a woman is critically injured in an accident and suffers brain damage. Now take two different scenarios:

1st) The woman’s husband learns of the accident goes to the hospital, to find his wife bloodied, in torn clothes, to be operated on and in agony. The husband suffers pathological grief disorder as a result of seeing her injuries. A duty of care would likely arise here on the authority of McLouglin V. O’Brien: the illness is brought about by the ’shock’ of seeing his wife bloodied and in agony, and since the wife still bears her accident wounds, the husband is deemed to ‘come across the immediate aftermath’. Duty owed.

2nd) The injured woman’s husband learns of the accident and rushes to the hospital, to find his wife, having undergone surgery with her wounds cleaned and bandaged. The husband is distraught, but suffers no recognized psychiatric illness. Over the following months, as the stress of caring for his newly disabled wife begins to take its toll, the husband suffers pathological grief disorder: the same condition suffered in the first hypothetical situation but a month or so later in the timeline. No duty.

In my view, the legal reaction should be the same: the husband has suffered psychiatric harm as a result of his reaction to the wife’s injury. But in requiring the harm to be brought about by ’shock’, and the claimant to come across the ‘immediate aftermath’ of the accident, legal precedent suggests the husband’s claim would fail here. The crucial issue here is not ’shock’ or ‘proximity in time and space’. Rather, it is to judge whether the proven chain of “cause and effect” was reasonably foreseeable or not, establishing the test of foreseeability.

In many situations, with respect to the second rule, the fact that the claimant is NOT on the scene at the time of the accident is MORE likely to provoke a psychiatric injury, and is equally deserving of recovery. Consider the situation posed by Lord Bridge in Alcock: a woman watching the television news at home learns that fire has destroyed the hotel at which her family was staying, killing all guests. Although the woman was not present at the scene, doesn’t come across the immediate aftermath, it is quite foreseeable that the combined effect of the news report and the wife’s ‘imagining of the agonies suffered’ by her family in their final moments will give rise to a recognized psychiatric illness.....Full Article