Connor v Castle Cement & Ors

In a negligence claim for psychiatric injury, ordinary distress and anxiety are insufficient. The claimant must prove, on the balance of probabilities, a genuine recognised psychiatric disorder caused by the defendant’s breach. The court must assess the evidence as a whole. Variations in presentation, functional ability or symptom severity do not necessarily amount to inconsistency and do not by themselves exclude a psychiatric diagnosis. Where physical and neurological causes have been ruled out, the evidence may establish a psychologically or psychiatrically based disorder. On the facts, hysterical pseudodementia was a recognised psychiatric disorder and therefore actionable.

The claimant was exposed to noxious fumes while working at premises occupied by the first defendant and employed by the second defendant. The defendants admitted breach of duty, the respiratory injury, and causation of any psychiatric injury proved. The preliminary issue was therefore confined to whether the claimant had suffered an actionable psychiatric injury.

The claimant relied on evidence of abnormal, childlike and anxious behaviour, cognitive difficulties and dependence after the exposure. The defendants challenged the reliability of the evidence and relied on variations in the claimant’s presentation, including covert video footage showing him undertaking familiar activities. The central issue was whether the claimant had proved a genuine recognised psychiatric disorder.

1. Applicable threshold. Mere grief, distress, anxiety, sleeplessness or similar nervous reactions are not compensable in negligence. The claimant had to prove, on the balance of probabilities, a genuine recognised psychiatric disorder.
2. Assessment of evidence. The court accepted that the claimant’s symptoms were genuine. Variations in his presentation and ability did not necessarily constitute discrepancies. He could perform some familiar physical and social activities, particularly in protected or supervised circumstances, while remaining unable to function autonomously and continuing to display a profound childlike regression.
3. Expert evidence. The court preferred Dr Hyde’s evidence to Professor Maden’s where they disagreed. The court accepted that the claimant’s early symptoms were consistent with a psychiatric injury and that, in the absence of an organic neurological explanation, they were psychological or psychiatric in origin. The subsequent improvement did not prevent the earlier condition from being diagnosed.
4. Finding and order. The claimant proved that he had suffered hysterical pseudodementia, identified as F44.8.8 under ICD 10. The question whether he had suffered an actionable psychiatric injury was answered affirmatively. Issues concerning duration, prognosis, continuing symptoms and quantum remained for a later trial.

First-instance decision. The judgment determined the preliminary issue concerning whether the claimant had suffered an actionable psychiatric injury. Further issues concerning the extent and duration of injury, prognosis and damages remained to be determined.