Law of Tort scratch

In the case of Dulieu v White1 Kennedy J. thought that the problem of exaggerated or fraudulent claims was not a good enough reason for simply denying the existence of a duty of care in respect of psychiatric harm as per Victorian Railway Commissioners v Coultas2 and wanted to tackle the problem head on. He introduced liability based upon what is known as the 'Kennedy test' – that real and immediate personal danger must be foreseeable. This test is still used today for what are known as 'primary victims' It is a person sufficiently close to the events to have their personal safety threatened or someone involved to the extent of being a direct participant and not just a mere bystander. An obvious example is a passenger in a car involved in a collision who walks away without a scratch.

It was 24 years later that the principle in the Dulieu case was extended to cover family and close friends in Hambrook v Stokes.3 This was the first case in which a "secondary victim" was permitted to recover. Damages were awarded, although she was not within the foreseeable area of impact and the shock was suffered as a result of fear for her child's safety. The majority of the court of appeal believed it would be absurd not to compensate a mother who suffered psychiatric harm as a result of fearing for her children's safety when on similar facts another mother could succeed if, not thinking about her children, but was frightened only for her own safety!

It was in Bourhill v Young4 that Psychiatric illness liability came before the House of Lords for the first time, and the claimants tried to establish that the duty of care should be extended to the claimant being outside the area of impact but within the area of shock, however this was not successful. On the facts, their Lordships thought that ordinary people could be expected to withstand the rigours of witnessing injury to a stranger on the roads without suffering psychiatric illness and referred back to the Kennedy test of being outside the area of foreseeable physical impact. It was considered that the decision in the Hambrook case was regarded as a special case with limited application. As you can see in the later case of King v Phillips5 concerning a boy and his mother this was distinguished from the Hambrook case. So liability was restricted again to primary victims.

In the landmark case of Mcloughlin v O'Brian6 the speech of Lord Wilberforce laid the foundation for the modern approach of the courts in psychiatric illness cases. Firstly in holding the defendant liable, the House of Lords extended the Law to cover a situation where the claimant had not seen or heard the accident itself, but had come upon its immediate aftermath. Whilst his Lordship thought that by extending previous authority to assist the claimant was a 'logical progression' he noted that 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."7

Lord Wilberforce identified three factors that needed to be considered in every case these are known as 'control mechanisms' the first factor being the class of persons whose claims should be recognised; they must have close ties of love and affection with the person who suffers injury or death in an accident attributable to negligence, so a spouse would satisfy this test but mere bystanders would not, relationships in between would have to be decided individually according to the facts and evidence. The second factor is the proximity of such persons to the accident; the accident had to be close in terms of time and space which is interpreted as being present at the accident or on the scene in its immediate aftermath. The question whether television or radio would suffice as sight or sound was left open? The third element was how the psychiatric illness was caused? The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon receiving it second-hand. Meaning that the mere communication of the accident by a third party to the claimant who, subsequently suffered from a psychiatric illness would not be able to claim.

In Alcock v Chief Constable of South Yorkshire8 This was a test case with specific claimants being chosen because their situations mirrored around 150 other potential claimants and clarity around proximity of relationship and geographical proximity where required. Counsel for the claimants based his case on the argument that the sole test for duty in nervous shock cases was whether such illness was reasonable foreseeable. The House of Lords rejected this, in line with Lord Wilberforce's point in the McLoughlin case that foreseeability alone did not give rise to a duty. The control mechanisms where unanimously adopted in Alcock and are still used today. Most of the claimants in Alcock were not considered in a close and loving relationship with anyone killed or injured at Hillsborough.

Brian Harrison suffered post traumatic stress disorder (PTSD), when he lost his two brothers at Hillsborough failed in his claim. There was insufficient evidence to suggest that he enjoyed a sufficiently close and loving relationship with his brothers as to make it reasonably foreseeable that he would develop a psychiatric illness as a result of their being killed. However a mother and father who lost their son met the 'close and loving relationship' element of the control mechanisms and it was reasonable foreseeable that they would suffer a psychiatric illness in the aftermath of the Hillsborough disaster. However the claim failed because they could not establish that the parents got PTSD by witnessing the Hillsborough disaster unfold or its immediate aftermath. They did see live pictures on television of the disaster however broadcasting regulations prohibited the showing scenes of human suffering in an extreme form and that it was insufficiently shocking to watch and that PTSD could not be derived from that.

In White v Chief Constable of South Yorkshire9 the majority of the Court of Appeal held that police officers who had to move dead bodies and where involved in the rescue where entitled to recover as rescuers even though they had not been in physical danger. By a bare majority however the House of Lords disagreed. They either had to satisfy the narrow definition of primary victims by being in physical danger or bring their claims as secondary victims and satisfying the Alcock criteria. However the courts have taken a more liberal approach at recent. Rescuers have been able to claim where the events have been so horrific and tragic that not even a thick skinned human who has had all the training available to him, can handle the tragedy the best example being the September 11th attacks

The conclusion to defining a secondary victim is someone whose personal safety is not threatened, but who suffers psychiatric injury as a result of either fear for the safety of others or the trauma of witnessing a harrowing event. Events such as 11 September have shown, in the TV and internet age the number of people who can witness and potentially be affected by the graphic media coverage of accidents and disasters is limitless. It is for this reason that sometimes arbitrary and unjust control mechanisms have had to be put in place to restrict the number of admissible claims from secondary victims.

The circumstances in which a secondary victim can claim is that all three requirements must be met so that, to take examples from the Hillsborough incident, some claimants who were close relatives of victims and had watched the disaster unfolding on television failed because, although they met condition one, they could not satisfy conditions two and three. Other claimants who were at the game, thus meeting conditions two and three, failed because they did not have a sufficiently close relationship with any of the victims and therefore failed to meet condition one.