The original reaction of the English common law system in regard to claims for nervous shock was to deny any liability at all until the early part of the twentieth century. It is maintained to this day that no claims can be made and no damages are recoverable for the common sufferings of grief, sorrow or distress. In order for a person to successfully claim, they must prove to have been the victims of a current and definable psychiatric illness, which is to be assisted by medical evidence.
A persistent difficulty seems to be the 'floodgates' problem regarding public policy; physical damage suffered due to negligence will always be limited to those in range of physical impact. Cases involving psychiatric injury are not as restricted, as persons not near the impact of damage may be affected. The courts have always been aware of this problem, and as they developed the law they also imposed restrictions and limitations on who can and cannot claim for damages in nervous shock cases.
This echoes the sentiment of the title, in that a duty of care is merely a 'mechanical device' for expressing an understanding of how risks should be allocated in society. The large role that insurance plays in compensating for liability in negligence should not be underestimated, as the ordinary person would not have the financial ability to accommodate the huge costs of a case. The historical development of 'nervous shock' cases contains attempts to limit, and in some cases expand the criteria for liability in order to form some manner of a general principle.
The case of Dulieu v White & Sons10 involved a plaintiff, who was pregnant, working in a public house when the defendant's servant negligently drove a horse van into the public house. As a cause, the plaintiff suffered shock resulting in the premature birth of her child. It was decided that the plaintiff could recover damages, as the shock caused was due to fear for her own personal safety. At this point in time shock suffered as a result of fear for the safety of another would not be compensated.
This strict principle was further developed and extended in the case of Hambrook v Stokes Bros11. The case involved a defendant who negligently left a lorry unattended at the top of a hill with the brakes off; the lorry ran down the hill and eventually crashed. The plaintiff's wife had just left her children at a bend in the road, she saw the lorry and feared for her children. She was subsequently told that a child fitting the description of her daughter had been injured, and thinking that it was she, the plaintiff's wife suffered nervous shock resulting in her death.
Damages were awarded, although she was not within the foreseeable area of impact, and the shock was suffered due to fear for another's safety. Limitations were applied; the shock should occur due to what the plaintiff witnessed as a result of her own unaided senses, rather than as a result of what others later told her. Following this case, two factors became important in determining whether a person owed a duty of care not to cause nervous shock. The first was the closeness of the claimant to the accident and whether the defendant was conscious of the presence of the claimant.
The other is the relationship between the person suffering nervous shock and the person actually placed in danger. It became increasingly evident that close family ties, such as parent to child, or spouse, would normally be sufficient proximity. There seemed to be movement in the direction of a general principle and the loosening of the tight requirements for successful claims following the House of Lords decision in the case of McLoughlin v O'Brian12 in the 1980's; at the time of a road traffic accident involving members of her family, Mrs McLoughlin was at home two miles away.
One hour later she learned of the accident and proceeded to the hospital. She saw her daughter covered in dirt and oil, with her face cut. Her husband suffered similar injuries and her son was badly injured. Her other daughter died instantly at the scene of the accident. The scenes the plaintiff witnessed caused her to suffer from depression and personality disorder. The House of Lords held that the defendants owed the plaintiff a duty of care.
This evidently involved an extension to the law, as Mrs McLoughlin was not even at the scene of the accident. However in the reasoning of the case the Lordships did not all have the same opinion. Lords Bridge and Scarman favoured at test based solely upon foreseeability and policy was rejected as inappropriate for the court. Any 'floodgates' problem was also set aside. Lords Edmund-Davies and Wilberforce held the view that policy issues did in fact apply and were justifiable in court.
Three elements to a claim for psychiatric injury were constructed by Lord Wilberforce; Firstly, the relationship between the plaintiff and the person suffering injury, mainly persons with close family ties would satisfy this requirement. Bystanders of an accident would not be owed any duty. Secondly the plaintiff had to be proximate to the accident in terms of time and space, in order to be successful the claimant had to be within sight or sound of the accident or encounter its immediate aftermath.
Thirdly, the shock caused by a third party telling of the accident would not be compensated. Kay Wheat, a leading academic holds the view that "the spacio/temporal proximity requirement produces arbitrary and wholly unjust results. " 13 Instead of creating an unambiguous general principle for deciding cases regarding psychiatric injury, the McLoughlin case has left the law, still, in an uncertain and controversial situation. The House of Lords stated the requirements for a duty of care in cases regarding nervous shock as being of three fundamentals.
Firstly, a sufficiently close relationship of love and affection with the primary victim of an incident, to make it reasonably foreseeable that the plaintiff might suffer nervous shock if they apprehended that the primary victim had been injured or might be injured. Secondly, proximity to the accident, or its immediate aftermath should be close in terms of time and space. The final requirement is that claimant suffered the psychiatric injury through seeing or hearing the accident or its immediate aftermath (a person informed of the incident by a third party would not have a claim).
The case of Alcock v Chief Constable of South Yorkshire Police14 split claimants into two categories, primary victims and secondary victims, primary victims are normally involved in the accident while secondary victims usually take the role of bystanders or peoples not involved the incident directly. The law remains that a claimant must satisfy the control devices set out in the Alcock case as a secondary victim, or to establish that they suffice primary victim status to take advantage of the more sympathetic rules.
The case of Page v Smith15 reinforces the firm sympathetic nature of the courts towards primary victims and their limited view towards victims of a secondary nature. Kay Wheat illustrates this point, "Yet, in Page v Smith, we find the setting of a rigid boundary which places primary victims in the winning category and reinforces the handicapped nature of the secondary victim because the essence of the case is an inappropriate regard for physical proximity. "16 This view clearly comments upon the presence of policy considerations in the form of physical proximity.
This narrow and limited form of the law was reiterated in the case of White v Chief Constable of South Yorkshire Police17where the House of Lords overruled the ruling of the Court of Appeal. The majority of their Lordships held the view that the 'generous' approach to the subject, which reached its pinnacle in the McLoughlin case had to be limited, echoing the comments of Lord Steyn, in that the floodgates problem considered of little significance then, was now a real threat.
In conclusion, it is fair to say that the comments made in the title question that duty of care is a way in which risks are allocated in society, and that this duty is merely a way of expressing an understanding of how risks should be allocated is, in fact accurate. The social and economic implications mentioned relate specifically to policy considerations as explored above.
The various stages of development which have resulted in the present principle of a duty of care in regard to policy considerations and nervous shock have left the law in an uncertain state, yet throughout the essay it is evident that the courts have adhered to an understanding of policy in regard to a duty of care in cases of psychiatric injury or nervous shock, this can be seen from the evidence provided, mainly from 'milestone' cases, ranging from the principle case of Donoghue v Stevenson18 to the defining cases of Alcock v Chief Constable of South Yorkshire Police19 and McLoughlin v O'Brian20.
Barrett, B, 'Compensation For Psychiatric Injury: Have Their Lordships Righted a Wrong? ' (1999) Vol. 28, Industrial Law Journal, P 263 Jones, M, (2002), Textbook on Torts, (Eighth edition), New York, Oxford University Press Inc Wheat, K, 'Proximity and nervous shock', (2003) vol. 32. 4, Common Law World Review, p 313