Reilly & Anor v Merseyside Regional Health Authority

Negligence requires compensatable damage. Fear, shock, distress, claustrophobia and their ordinary physical consequences do not constitute damage merely because the experience was severe. Recovery requires either physical harm or a recognisable psychiatric illness. Where neither is established, the tort is not complete and the negligence claim fails.

Visitors to a maternity hospital were trapped for approximately one hour and twenty minutes in an overloaded lift. The county court found breach of duty but awarded each claimant £1,750, holding that their physical symptoms, or alternatively their psychological injury, amounted to actionable damage.

The Health Authority appealed. The Court of Appeal was concerned solely with whether the claimants had suffered compensatable damage, since breach of duty and contributory negligence were not in issue.

1. Appeal allowed. The claimants had suffered an intensely unpleasant experience, but the judge’s finding of physical injury was unsupported. Symptoms including sweating, breathlessness, dizziness, chest pain, inability to sleep and nightmares were ordinary physical consequences of fear and did not, without more, amount to actionable harm.
2. The applicable distinction is between normal human emotion and a recognisable psychiatric condition. The authorities establish that grief, distress, anxiety, fear and horror are not compensatable in themselves. A claimant must establish either physical harm or an identifiable psychiatric illness, such as post-traumatic stress disorder or an anxiety neurosis.
3. Neither claimant was found to have a chronic anxiety state, post-traumatic stress disorder or another recognisable psychiatric injury. Their fear of lifts and enclosed spaces, including the aggravation of pre-existing claustrophobia, remained within the range of normal emotional reaction to the incident.
4. The principles stated in Hinz v Berry [1970] 2 QB 40, McLoughlin v O'Brian [1983] 1 AC and Hicks v Chief Constable of the South Yorkshire Police [1992] 1 All ER 690; [1992] 2 All ER were applied. Accordingly, there was no actionable damage and the tort of negligence was not established. The county court judgment was set aside and the action was dismissed. Lord Justice Saville and Lord Justice Butler-Sloss agreed with Lord Justice Mann.

• Liverpool County Court: His Honour Judge Lynch ordered on 3 November 1992 that judgment be entered for each claimant in the sum of £1,750 plus interest.
• Court of Appeal (Civil Division): The Health Authority’s appeal was allowed. The county court judgment was set aside because no compensatable damage had been established.