Markesinis & Deakin Tort Law

"But despite the progress which the courts have gradually made over the course of more than a century of litigation towards the recognition of this head of damage (psychiatric injury), there remain severe restriction on the scope of recovery. " Markesinis & Deakin Tort Law (6th Editon) at page 139 Do you agree? Answer The law on nervous shock, or sometimes referred to as psychiatric injury or damage, has come a long way and has developed considerably since the reluctance of the courts to impose liability in the 1888 case of Victorian Railway Commissioners v Coulthas1.

Before, where the claimant was said to have "been put in fear of his own safety", he could recover as per the case of Dulieu v White2, and it has progressed to allowing recovery for a wide range of persons. However, with the exceptions of rescuers, following the case of Chadwick v British Railways Board3, these persons have usually been immediate or close family members of the victims. Nevertheless, the position of the law today is that all liability for nervous shock must now be considered in the light of the decision of the House of Lords in Alcock v Chief Constable of South Yorkshire4.

Before further discussion, we must first understand what exactly is meant by nervous shock and the whole issue surrounding it for the purpose of this assignment. The duty of care concept under the tort of negligence allows claimants to claim for physical injury done unto them. It also allows claimant to claim for psychiatric injury, but however, this will only be recoverable under exceptional circumstances. The validity of this approach has given rise to considerable debate.

The courts were sluggish to accept the possibility of psychiatric injury or nervous shock constituting a head of damage for which the tort of negligence provided compensation, especially where it was caused by harm or the threat of harm to a person other than the claimant. This is also due to the fact that the law remains sketchy in relation to certain words and requirements. What will be considered psychiatric illness?

In McLoughlin v O'Brian5, Lord Bridge said that "an acute emotional trauma, like a physical trauma, can well cause a psychiatric illness in a wide range of circumstances and in a wide range of individuals whom it would be wrong to regard as having any abnormal psychological make-up. " Mere grief or emotional distress caused by the injury or death of another or a loved one will not allow damages to be recovered, except for a limited, restrictive amount known as a claim for bereavement. In some cases, the injury or illness may actually be a physical one, brought on by a mental shock (Bourhill v Young6).

Claimants who can prove such an injury can only claim in negligence if it can be established that they are owed a duty of care by the defendant, with regard to psychiatric injury. This will depend on their relationship to the event which caused the shock, and case law has developed different sets of rules, covering different categories of claimant. The number of categories has varied at different stages of the development of the law, but since the most recent House of Lords case, White and others v Chief Constable of South Yorkshire7, there are now three:

(i) those who are physically injured in the event which the defendant has caused, as well as psychiatrically injured as a result of it (primary victims); (ii) those who are put in danger of physical harm, but actually suffer only psychiatric injury (primary victims) (iii) those who are not put in danger of physical injury to themselves, but suffer psychiatric injury as a result of witnessing such injury to others (secondary victims) A duty of care to secondary victims will only arise if they can satisfy very restrictive requirements.

As such, the courts' reluctance to allow claims under this head is understandable, for it acts as a control mechanism to limit any man on the street from claiming for psychiatric injury. As cases are analysed in the following paragraphs, we will see how claims are limited by the courts and will eventually determine if there still remains a severe restriction on the scope of recovery for psychiatric injury in the law of negligence today.

As a starting point, the House of Lords in the case of McLoughlin contemplated the area of nervous shock and held that the test to be applied was the reasonable forseeability test, in that the question to ask was whether it was reasonably foreseeable that the claimant would suffer from nervous shock as a result of the defendant's negligence. The House of Lords then went on to adopt two distinct approaches to liability.

Lord Wilberforce held that because nervous shock was capable of affecting such a wide range of persons, there was a need for the law to place some limitations on claims. He considered that there were three elements inherent in any claim, namely, the class of persons who could claim, the proximity of such persons to the accident in time and space, and the means by which the shock was caused. Lord Bridge had a point when he felt that this narrow approach would place arbitrary limits on recovery, and showed preference for the test of reasonable forseeability.

The House of Lords in Alcock adopted Lord Wilberforce's approach and held that if the claimant satisfied both the test of reasonable forseeability that he would be so affected as a result of the close relationship of love and affection with the primary victim, and the test of proximity to the tortfeasor in terms of physical and temporal connection between the claimant and the accident, only then would the claimant be able to recover for nervous shock. Alcock arose from the Hillsborough football stadium disaster in 1989.

It was the FA Cup Semi-Final match between Liverpool and Nottingham Forest, where all the tickets for the event had been sold, and in addition, it was aired on live television. However, play had to be interrupted after six minutes because too many spectators had been allowed onto the terraces that some were being crushed against the barricades which divided the terraces from the pitch. A total of 95 people died in the tragedy which followed, and another 400 required hospital treatment for their injuries.

Many tried to claim for psychiatric injury in addition to the physical injury claims. Psychiatric injury claims which fell within the categories of those who would be successful in bringing a claim were settled by the police. Additionally, there were two further groups of people who claimed psychiatric injury as a result of the tragedy: relatives and friends of those injured or killed, and police officers on duty. Therefore, this issue was examined in this case and the claimant could only recover if:

a) his relationship to the primary victim was sufficiently close that it was reasonably foreseeable that he might suffer nervous shock b) his proximity to the accident or its immediate aftermath was sufficiently close in both time and space; and c) he suffered nervous shock through seeing or hearing the accident or its immediate aftermath. Thus, a claimant would fail the test of reasonable forseeability or proximity unless the psychiatric illness was caused by sudden nervous shock through seeing or hearing the accident and its immediate aftermath.

Also, a claimant who suffered nervous shock caused by being informed of the accident by a third party does not satisfy these tests. Therefore, persons who witnessed the disaster live on television would not be said to have suffered nervous shock as a result of viewing the sights and sounds of the event, as they were not present in person at the site of the event and thus were not in proximity to the event, and did not suffer shock in the sense of a sudden assault on the nervous system.

It was also held that the class of persons who may claim for nervous shock was not limited to particular set relationships such as husband and wife or parent and child, and it was further suggested that a bystander who witnessed an unfortunate incident might be able to recover and that, in certain circumstances, a claimant might recover on witnessing an event on live television.

It may seem that on the face of it, in Alcock, the House of Lords have widened the range of potential claimants considerably, although on the other hand, upon reading of the judgements with a fine-toothed comb, it might suggest that this range has been narrowed in some circumstances. Their Lordships therefore rejected the concept of limiting the class of persons who can claim to specified relationships such as spouses or parents and children in favour of the close relationship test.

This seems to make sense and is fair and just, and, echoing Lord Keith's sentiments, it is only with the existence of this close relationship of love and affection which will lead to nervous shock. Presumably, it will be open to the defendant in the cases involving spouses to rebut the presumption by proving that the partners have separated and have not been living together for some years.

This broad approach, however, is not free from difficulties. Although Alcock would allow recovery by a particularly close friend who can satisfy the criteria of love and affection, but how is a defendant to reasonably foresee the existence of such a close friend? While it is easy to foresee that the primary victim of an unfortunate accident may have a spouse or children or a sibling, is the existence of such a friend foreseeable?

Can this approach be said to bring any degree of certainty or logic to the law, taking into account the fact that the judges are divided on this matter in the sense that some are more ready to foresee a great deal and others take a narrower view? It may be just from the point of view of the secondary victim, but is it just in regards to the defendant for the courts to impose such a wide liability?