Reilly v Merseyside HA [1994] EWCA Civ 30

Mr and Mrs Reilly were trapped in an overcrowded hospital lift for over an hour and claimed for psychological harm. The Court of Appeal held that mere fear, claustrophobia and transient physical symptoms without a recognisable psychiatric illness or physical injury are not actionable in negligence.

Facts

Mr and Mrs Reilly attended the defendant’s maternity hospital in Liverpool on 3 January 1990 to visit their newborn grandchild. They used a lift to reach the second floor ward. The lift was overloaded with passengers, causing it to jam shortly after it began to ascend. The occupants, including the plaintiffs, were trapped for one hour and twenty minutes before being released.

The lift had a known history of jamming due to overloading, and the trial judge found it was foreseeable that overloading would recur and that visitors were ignoring or not seeing capacity notices. It would have been inexpensive to install a cut-out device or overload buzzer. On this basis, the judge held that the defendant was in breach of its duty of care. An allegation of contributory negligence was rejected.

Mr Reilly, aged 61 and suffering from angina, and Mrs Reilly, aged 68 and claustrophobic, did not consult their GP but were later assessed by two consultant psychiatrists. The judge preferred the evidence of the defendant’s expert, Dr Haye, and rejected that of the plaintiffs’ expert, Dr Ansarri. He concluded there was no chronic anxiety state or post-traumatic stress disorder in either plaintiff.

The judge nonetheless described the plaintiffs’ reactions during and immediately after the incident, stating:

“Although I find that both plaintiffs sadly have not been open and frank with the psychiatrist who examined them, and have tended to exaggerate their condition, I am satisfied that Mr. Reilly in that lift became so psychologically disturbed because of the claustrophobic feelings he had, and his worries about his wife, who was, I accept, already claustrophobic, that he became hot, he was feeling as though he would choke, and was sweating, no doubt brought about by his worries over his angina and whether he would have an attack. When he was eventually released from the lift, he could not walk, and had to be helped up the stairs from the basement where the doors were opened, and that night he could not sleep and was suffering chest pain, the angina, which was brought on by the experience he had gone through. I find that as fact as to what he went through.

Mrs. Reilly, as I have already indicated, had this pre-existing claustrophobia. She was very panicky in that lift. She was extremely worried about her husband’s angina. She found it very difficult to breathe, and she became dizzy. She had to be helped up the stairs, and her knees gave way when the lift was opened. She could not sleep and she had nightmares for a few days. Both were in a state of collapse when they left that lift.

What I say simply, and I base my decision solely on the facts of this case, is that those two lists or catalogues of symptoms constitute physical injury in respect of both. I would say in the alternative that my own view is that even if they did not constitute physical injury, that, and the aftermath for approximately two months, and, in respect of both, the fear of lifts and enclosed spaces – in Mr. Reilly’s case a new fear; in her case an aggravation of a pre-existing condition – would constitute a psychological injury or illness, which although cannot be given the label of post-traumatic stress disorder, or chronic anxiety state, is, in my judgment, of sufficient severity to entitle them to recover damages.”

The judge therefore awarded each plaintiff £1,750 plus interest.

Issues

The appeal was limited to a single issue: whether the tort of negligence had been consummated by the occurrence of legally recognisable damage.

In particular, the Court of Appeal had to decide:

• whether the plaintiffs had sustained actionable “physical injury”; and
• whether, absent a diagnosable psychiatric illness, their fear, claustrophobia and associated physical symptoms amounted to compensatable damage in negligence.

The defendant highlighted that the pre-action letter of 25 January 1990 referred only to “great emotional shock” and the Particulars of Claim alleged only “severe psychological injuries”. The case had been presented initially as one of psychiatric damage; physical injury was first raised in closing submissions.

Judgment

Approach to physical and psychiatric injury

In the Court of Appeal, counsel for the plaintiffs disclaimed any intention to rely on physical injury as such. Lord Justice Mann held that in treating the temporary physical symptoms as “physical injury” the trial judge had erred: no such injury had been asserted or proved.

The court then considered whether there was compensatable psychological damage notwithstanding the absence of a recognised psychiatric disorder. Mr Wood argued that harm to the mind producing physical consequences was sufficient, even without a diagnosable psychiatric condition, relying on Devlin J’s statement in Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1:

“The real claim presented by Mr. Brown is for fright. An elephant coming over the top of a booth would be a terrifying thing even for an ordinary man, and although the male plaintiff asserts that he was not frightened, I am satisfied that the shock must have been considerable. I should like to award him a substantial sum under this head, but I am satisfied that I cannot do so except to the extremely limited extent that the shock resulted in physical or mental harm.”

The Court of Appeal reviewed more recent authorities. In Hinz v Berry [1970] 2 QB 40 Lord Denning MR stated at 42–43:

“In English law no damages are awarded for grief or sorrow caused by a person’s death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant.”

In McLoughlin v O’Brian [1983] 1 AC Lord Bridge of Harwich stated at 431:

“The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured. Anxiety and depression are normal human emotions. Yet an anxiety neurosis or a reactive depression may be recognisable psychiatric illnesses, with or without psychosomatic symptoms. So, the first hurdle which the plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness.”

In Hicks v Chief Constable of the South Yorkshire Police [1992] 1 All ER 690, Parker LJ observed at 693:

“… it is clear from the nervous shock cases that horror and fear for oneself or others does not sound in damages. These are emotions which can no doubt be described as suffering but it is only when they result in recognisable psychiatric injury that an action lies. It is then for such injury, not for the fear or horror.

As I have already said, apprehension and fear are of themselves not compensatable, nor in my view are discomfort or shortness of breath by themselves. Anyone who regularly travels on the London Underground frequently suffers discomfort and shortage of breath from the press of bodies in overcrowded trains.”

In the House of Lords decision in the same case, Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER, Lord Bridge said at 69:

“It is perfectly clear law that fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded. Those trapped in the crush at Hillsborough who were fortunate enough to escape without injury have no claim in respect of the distress they suffered in what must have been a truly terrifying experience. It follows that fear of impending death felt by the victim of a fatal injury before that injury is inflicted cannot by itself give rise to a cause of action … .”

Requirement of recognisable psychiatric illness or physical harm

Lord Justice Mann held that these authorities required either physical harm (which was absent) or a recognisable psychiatric condition (such as post‑traumatic stress disorder) to constitute compensatable damage in negligence. He concluded:

– there was no recognised psychiatric injury, such as post‑traumatic stress disorder or chronic anxiety state, as the trial judge had explicitly found; and

– the plaintiffs’ reactions amounted to “normal emotion in the face of a most unpleasant experience” and its ordinary physical manifestations, which were not compensatable.

He stated that the authorities made clear “that there must be an identifiable psychiatric condition” and that the “sound policy of the law is that the excitement of a normal human emotion, together with its normal physical consequence, is not compensatable.”

On that basis, he held that the plaintiffs had suffered no legally cognisable damage and that the tort of negligence was not established.

Lord Justice Saville and Lord Justice Butler-Sloss each stated their agreement with Lord Justice Mann.

Implications

The decision confirms and applies the established principle in English law that damages for “nervous shock” or psychological harm are only recoverable where the claimant shows either:

• a recognisable psychiatric illness; or
• physical injury.

Mere fear, terror, claustrophobia, panic, distress or other normal human emotions, even when accompanied by transient physical symptoms such as sweating, dizziness, shortness of breath, nightmares or temporary collapse, do not amount to actionable damage without a diagnosable psychiatric disorder.

The case reinforces the policy-driven boundary set by Hinz v Berry, McLoughlin v O’Brian and Hicks, limiting claims for emotional distress to those involving clinically recognisable psychiatric conditions. It is an important authority for defendants and practitioners in distinguishing actionable psychiatric injury from non-compensatable emotional upset in negligence claims, particularly where claimants experience frightening but ultimately transient incidents without lasting psychiatric consequences.

Verdict: Appeal allowed; the plaintiffs’ claims were dismissed on the basis that they had suffered no actionable damage in negligence.

Source: Reilly v Merseyside HA [1994] EWCA Civ 30