“…There remains, in my opinion, just because ‘shock’ in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation on the extent of admissible claims…” (Per Lord Wilberforce in McLoughlin v O’Brian  2 All ER 298)
Critically discuss, by reference to the development of case law in this area, how the law has sought to place limitations on claims for psychiatric injury in negligence.
The English legal system has often regarded negligence and compensation of psychiatric harm as a controversial issue within the realm of tort law. The laws behind psychiatric harm or “nervous shock”, as the courts have commonly referred to it, has been seen by many judges, lawyers and academics as leading to inconsistent results, having complex criteria and standards, and adopting illogical approaches leading to injustice. Nervous shock can be seen as a mental injury or medically recognized psychiatric illness. In recent years the courts have begun to move away from this terminology and have begun to talk about ‘psychiatric illness’ rather than nervous shock. Psychiatric illness or injuries which can be triggered by the perception of traumatic events include “conditions such as depression, schizophrenia, post traumatic stress disorder, and anxiety neurosis”. The development of law within the compensation of psychiatric injury has been largely influenced by policy considerations and attempts to restrict the number of potential claimants. This paper will discuss the how the courts, through the use of case law, have created standard tests and specific criteria which are used to place limits on claims dealing with psychiatric harm. It is becoming more apparent that our current laws need to be reformed in order to reflect the constantly evolving nature of new cases and society as a whole.
In order for a claimant to receive damages from nervous shock due to the negligence of the defendant, they must prove all the elements of the tort of negligence: 1) a duty of care exists; 2) there is a breach in that duty; 3) the causal link between the breach and shock; 4) shock was not too remote a consequence. Out of fear for false claims and unrestricted liability of defendants, the courts have created a number of “control mechanisms” which can limit liability. These were first seen in McLoughlin v O’Brian and brought about a three part test in order to restrict compensation in relation to negligently inflicted psychiatric harm. The controls have outlined distinctions between physical harm and psychiatric harm and there are four basic reasons for this as suggested by Lord Steyn in White v Chief Constable of South Yorkshire Police: (1) Evidential problems: the difficulties in drawing the line between psychiatric illnesses and mere grief or anxiety; (2) the view that allowing claimants suffering psychiatric injury to sue may act as unconscious disincentive to them recovering from their illnesses; (3) ‘floodgates’ concerns about a significant increase in the scope of tort liability if recovery for psychiatric injury was not limited; (4) the potential unfairness to the defendant of imposing damages out of all proportion to the negligent conduct.
Whether or not these reasons hold to be true is yet to be seen and The Law Commission Report (1998) addresses these arguments by claiming that most of them do not stand up to close scrutiny. Some of these suggestions came forward in the report which proposed a number of reforms dealing with psychiatric harm, in an attempt to improve those aspects of the law which are deemed less desirable today and to insure the law is efficient and just in its application. The report suggested that many of Lord Steyn’s reasons apply equally well to claims for physical injury in addition to the psychiatric injury it is intended to limit. Furthermore, the report states that “fraudulent or exaggerated claims are just as likely in relation to physical harm” and there is no way of proving the kind of pain the claimant is in – the courts just trust the claimants words and hold them to be true.
I will discuss the Law Commission’s recommendations and whether these would make the law more or less coherent, and ways in which the courts have attempted to do this. The Law Commission recognized that the law in relation to recovery for negligently caused psychiatric injury has “taken a wrong turn”. Too much appears to turn upon the primary/secondary victim distinction, and the restrictive approach to actions of secondary victims has led to unjust results. We will now turn to the related case law dealing with primary and secondary distinctions and show how the courts have limited claims in these cases.
Primary & Secondary Victims: Case Law
Before discussing if the proposed reforms of the Law Commission are of any value, it is important to take a look at how the case law dealing with psychiatric harm has evolved and the limits that judges have placed on the broadness of the term ‘nervous shock’. One of the first instances dealing with psychiatric harm was in Dulieu v White & Sons. Kennedy J introduced a test upon which liability could be based and this was referred to as the “Kennedy test” in which the danger presented should have been foreseeable and “there must be a shock which arises from a reasonable fear of personal injury to oneself”. This test carved out the distinction between primary and secondary victims, and bystanders who happen to witness an accident were not regarded as primary participants and therefore were to be treated separately under the law. This criterion is still common today when dealing with primary victims. Where being directly involved in the accident to a point where one’s own personal safety is at risk and the negligence of another party has caused injury; this is seen as the base requirement of this test and the negligent party will be held liable. This test was further expanded to apply in the case of Page v Smith where Lord Lloyd held that where there was reasonably foreseeable harm then “physical and psychiatric harms are not of different types, so that if the former is foreseeable, the claimant can recover in respect of both physical and psychiatric harms, even where the latter is not in itself foreseeable”. Lord Lloyd’s judgment created a restrictive definition of primary victims, where the sole requirement of the party was to be within the zone of physical danger and removing the requirement of psychiatric harm to be foreseeable; which was used as the basis of denying the claimants in Delieu v White.
The case of Hambrook v Stokes Bros nearly two decades later furthered the narrow requirements of Dulieu and expanded them to cover family members and friends of victims. In this case a woman had suffered psychiatric harm after watched a lorry swerve out of control down a hill where her children were known to be. Although she was a non-participant in the event she had experienced direct shock as a direct result of fear for her children and was able to recover her claim. Despite the creation of secondary victims, the test for primary victims remained and same, involving foreseeability of injury and being in the zone of danger, whereas now secondary victims had a greater hurdle to overcome as complex applications of legal rules increased the problems within such cases. More recently, we have seen judges respond to the “floodgates” problem by limiting the scope of liability within psychiatric harm cases by restricting the concept of foreseeability and making proximity one of the crucial aspects when determining whether a duty of care is owed.
As the number of claims increased and the case law evolved we saw the secondary victim distinction become more apparent. A secondary victim was a person who was not at risk of physical injury but suffers psychiatric injury as a result of witnessing someone being harmed.This was the issue at hand in Bourhill v Young, where there was an attempt to expand the established zone of danger from previous cases, and prove that a duty of care is still owed to a claimant who is outside this zone of danger, but is still within the reasonable area of shock. In order to recover from such cases a number of policy considerations had to be taken into account, where “the notion of ordinary phlegm or fortitude, is invoked as a means of assessing the validity of a claimants emotional reactions in the face of trauma.” The claimant was unsuccessful in her claim and the Lords held that ordinary people should be expected to withstand any associated trauma when witnessing an injury of a stranger. They noted that she was outside the area of foreseeable physical danger and therefore cannot claim psychiatric illness on those grounds. From this case the courts began to evolve their approach towards the secondary victim limiting future floodgates of claims.
Creation Of Control Mechanisms And Alcock Criteria
As psychiatric harm evolved the courts began to take different approaches, like that seen in McLoughlin v O’Brian. This case plays an important role in our modern day approach to how the courts treat and limit claims of secondary victims and defined “immediate aftermath”. The claimant suffered psychiatric illness after witnessing the aftermath of a car accident her children and husband were a part of. Upon hearing the news she rushed to the hospital in time to still see them in pain, covered in blood, and waiting for medical attention. The defendant was liable and the courts held that the foreseeability test should be expanded to deal with situations where the claimant had not witnessed the accident, but was in its immediate aftermath. At the time this judgment was viewed as a borderline case which applied a logical progression towards assisting the claimant, and felt because psychiatric illness was capable of affecting such a large number of potential claims there was “a real need for the law to place some limitation on the extent of admissible claims.” Lord Wilberforce’s now famous judgment laid out the groundwork for his threefold test of proximity which was later referred to as the “Alcock control mechanisms”. The three factors or “control mechanisms” made up of comprised “the class of persons whose claims should be recognized; the proximity of such persons to the accident; and the means by which the shock was caused”. He contended that there needed to be a close tie of love and affection towards the person suffering injury; that the accident had to be close in terms of time and space and the claimant either have witnessed or been in the immediate aftermath of the accident; and that the shock must have been caused by direct perception (sight or hearing) of the incident or its aftermath and not have been a communication from a third party. Through the creation of this test the courts were able to limit the amount of potential claims as now they had a concrete guideline to apply for future cases.
Almost a decade later this test was thoroughly applied in the aftermath of the Hillsborough Stadium disaster and the further cases which ensued such as Alcock v Chief Constable of South Yorkshire . When applying the criteria from the McLoughlin case the courts took a narrower approach than what had been done in the past. This was due to the expected number of claims from such a large public tragedy, the shift in the concept of proximity of perception (could a claim fail if event was witnessed on TV) and ties of love and affection (witnessing somebody you love or close to you being harmed). Because of these factors the Lords had to re-establish how they approached the immediate aftermath definition and this was reflected in the Alcock control mechanisms. The Alcock case dealt with a few important points when relating to the limits placed by the courts. The claimants based their entire argument on the duty of care aspect within nervous shock whether or not it was reasonable foreseeable; which was later rejected on similar grounds found in McLoughlin, stating that foreseeability on its own did not mean the claimant was owed a duty of care.
These controls are still used in courts today to limit claims by applying these strict rules. Under the criteria of close tie of love and affection many of the Hillsborough claims failed when it was applied. A claimant from the Alcock case, Brian Harrison, had witnessed his two brother’s die in the disaster was unable to claim after suffering from post traumatic stress disorder. The courts held that there was insufficient evidence leading to show a close tie of love and affection which reasonable foreseeability would have been tied with. Similarly, the proximity aspect of the test was applied with a situation where a closer tie of love was found between a mother and father who had witnessed the death of their child and the disaster on television. The courts found that although they did meet the requirement of close ties of love and affection and foreseeability that they would suffer psychiatric harm, their claim would fail on the grounds that their illness was caused by being in the immediate aftermath, which was not the case here. They had viewed the disaster on television but due to broadcasting standards, horrific and disturbing images were not to be shown in order to prevent such trauma and therefore their illness could not have stemmed from this.
Law Commission Report
This report was originally set out to resolve problems within negligently inflicted psychiatric harm and not to codify all the laws relating to it. It recommended that the law should be able to evolve naturally through judicial decision making while applying precedent and creating a binding rule of law in the absence of a statute. Case law has reached a point where the secondary victim is still faces greater difficulty in recovering claims and the report suggested that this should continue to be restricted further confirmed that reasonable foreseeability should not be a grounds for a claim. The Law Commission submitted that the Alcock control mechanisms be modified and its impact reduced. Specifically, that secondary victims need not show proximity in terms of time, space and perception. The reasons for this are exemplified when the report asks, “how many hours after the accident the mother of an injured child manages to reach the hospital should not be the decisive factor in deciding whether the defendant may be liable for the mother’s consequential psychiatric illness”. A better way to deal with the floodgates argument and limit claims was through a strict application of the close tie of love and affection requirement. This is dealt with in detail within the report as a fixed list of relationships is submitted, to include parents, children, spouses, cohabitants and siblings. Having to prove this aspect with this new list would rid the intrusive evidence gathering which was used in the past to prove close ties. Another important reform the report submitted was to abolish the requirement of sudden shock and to include psychiatric injury which has slowly occurred over a number of years and to change the present law so that liability could arise where defendant’s actions in imperiling themselves caused the claimant’s psychiatric injury. Lastly, it deals with the floodgates argument and tries to anticipate that if these reforms are put in place then it will lead to a flood of claims. In order to prevent this, the courts would have to refer back to policy considerations to cut down claims from major events like Hillsborough and the new claims which would arise from separate events.
- K Horsey & E Rackley, “Tort Law”, 1st edition (Oxford University Press, 2009)
- R Kidner, Casebook on Torts, 10th edition (Oxford University Press, 2008)
- The Law Commission, “Liability for Psychiatric illness, Report No.249” .
- Dulieu v White & Sons  2 KB 669.
- Hambrook v Stokes Bros  1 KB 141.
- McLouglin v O’Brian  2 All ER 298
- Bourhill v Young  AC 92
- Page v Smith  1 AC 55.
- Alcock v Chief constable of South Yorkshire  1 AC 310.