Psychiatric injury and the "risk" of harm

In June this year the Sheriff Appeal Court considered the case of McCallum v Morrison [2023] SAC (Civ) 23, an interesting case looking at the question of psychiatric injury, and the questions both of the foreseeability of such an injury, and the chain of causation. The decision is a useful addition to existing case law, in understanding the approach the courts will take to similar cases.

Inadequate infection control

The appellant was a patient at one of the respondent's two dental practices, attending twice in February 2013. Subsequently, in September 2013 the local health board closed both of the respondent's practices, as a result of suspicions that the respondent was applying inadequate infection control procedures. The General Dental Council later found that the respondent had failed to maintain appropriate infection control measures over a 10 month period between 2012 and 2013, and the respondent was removed from the dental register as a result.

In March 2014, the appellant received a letter from the local health board notifying him of the risk of infection by blood borne viruses (BBVs) because of these inadequate procedures. This letter noted that the risk was low, but offered him testing as a precaution. In April 2014, the appellant underwent BBV testing and the results were negative.

The appellant claimed that over the four-week period between receipt of the health board's letter and the negative test result, he experienced stress in the form of an acute stress disorder.

It is this psychiatric injury that led the appellant to make a claim against the respondent. He was not successful in the sheriff court and so appealed. The appellant's case was based on three grounds:

• Breach of duty of care by the respondent;
• Breach of an implied term of contract by the respondent; and
• Assault.

Decision at first instance

At first instance, the sheriff court considered the three lines of argument in the context of two key authorities: Rothwell v Chemical Insulation Co Ltd & Anr [2008] 1 AC 281 and Page v Smith 1996 1 AC 155.

In considering these, the sheriff found in favour of the respondent on the basis that:

• Similar to Rothwell, the psychiatric injury was not foreseeable or compensatable: the mere risk of injury, even if causing worry and resulting in psychiatric injury is not enough;
• There was no contract in place between the appellant and the respondent, their relationship arose from a statutory scheme and thus there could be no implied contractual term to breach; and
• The respondent had not assaulted the appellant.

The remainder of this article focuses on grounds of appeal (1) and (3), negligence and assault.

What caused the psychiatric injury?

The appellant submitted that the sheriff at first instance was incorrect in law to find that the appellant was a secondary victim. It was argued that the appellant was a primary victim, who had suffered material physical harm due to the possible use of equipment which had not been subject to adequate infection controls.

The relevance of this argument was that if the appellant was correct, then, in accordance with the decision in Page, the question of whether the appellant's injury was reasonably foreseeable did not require to be considered by the court.

For the respondent, it was argued that the sheriff at first instance had correctly followed Rothwellin holding that the psychiatric injury was not reasonably foreseeable by the respondent, nor compensatable. They argued that unlike Page, there was no immediate proximity: there had been a 12-month delay between the treatment provided by the respondent, and the appellant's receipt of the letter from the health board. If the risk had been notified immediately after treatment, Counsel for the respondent accepted the case would be different, and the appellant may have been entitled to damages.

On appeal, the court agreed with the respondent – that on finishing treatment, there was no loss, injury, or damage to the appellant: he was not injured and was not infected with a BBV; and, he did not have any reason to think that he was injured. This remained the case for over a year, between the date of treatment and receipt of the letter. Whilst the appeal court agreed that the appellant was a primary victim, the treatment had not led to the appellant's injury: it was the letter, sent by the health board which did. The court noted that the letter itself was not wrongful or harmful, and merely acted as notice of an earlier wrongful act. The terms of the letter from the health board were beyond the control of the respondent.

Considering Rothwell, the appeal court held that this case was directly analogous on the basis that the facts and consequences were the same in law. The case was held to lack immediacy and the causal chain did not extend this far.

Breach of Contract

On the second ground, the court upheld the sheriff's decision that there was no breach of contract. The appeal court noted that this argument depended on a legal inference being drawn, regarding the contract. In the court's view, there was no evidence a contract was concluded between the parties; and therefore they did not agree there was any legal inference to be drawn of an implied term in relation to duty of care.

Assault, affront, threat, or insult?

The appellant also argued that the respondent had assaulted him and that assault had caused his psychiatric injury. This argument was based around the issue of consent: i.e that, by not complying with the professional requirements of infection control, the treatment in February 2013 had been carried out without the respondent's consent; and therefore, amounted to an "affront" (assault).

In response, the respondent focused on the definition of civil assault. While Counsel for the respondent accepted that "unwarranted interference with the person" was the core of the appellant's claim under this head, they argued in this case there was no assault because (i) consent was given to the treatment; (ii) there was no physical harm to the appellant as a result of the treatment; and (iii) at the time the appellant had no awareness that he could be harmed. They also argued that proof would be required as to the intention to harm, and that there was no such evidence.

In refusing this ground of appeal, the court focused on the appellant's consent to the treatment and the lack of any bodily harm caused by it.

The court noted while it may be possible for assault to be founded on reckless, rather than deliberate, actions, that could not succeed here as the psychiatric injury was not one that could be foreseen with "substantial certainty". As a result, this ground of appeal was also refused.

The future of clinical negligence and the gap between incident and injury

One key takeaway from this case is the approach taken by judges in applying the principles set down in Rothwell. In making a claim for psychiatric injury, the court also emphasised the importance of immediacy as set out in Page. In this case, the one-year period that passed between the respondent's treatment of the appellant and the appellant's subsequent injury was sufficient to break the causal chain. It was the letter from the health board that caused the injury, not the respondent's actions; and, while the appellant was a primary victim in respect of the treatment he received from the respondent, the fact the letter was sent by a third party also helped to separate the original negligence (of providing the treatment without adequate hygiene measures), from the psychiatric injury the appellant ultimately suffered. It could not have been reasonably foreseen by the respondent that psychiatric injury would occur from the appellant reading the letter which simply highlighted a risk.

The wider landscape for claims for psychiatric injuries in the UK is currently under review, with a decision awaited from the Supreme Court in the case of, Polmear and another v Royal Cornwall Hospitals NHS Trust, considering the scope of claims by secondary victims. This is, undoubtedly, an area to watch over the next few months.