South Yorkshire Police

Another area that is much in debate arises from the second requirement that the claimant's proximity to the accident or its immediate aftermath is close in both time and space, as this usually gives rise to problems of justice and uncertainty. It is obvious why this requirement is needed, in that the claimant should not be allowed to claim a long time after the accident, but what exactly do the words 'being close in time and space' mean?

In Alcock, Lord Ackner was not prepared to allow recovery to a claimant who saw the body of a brother-in-law at a mortuary approximately eight hours after the accident, and Lord Wilberforce stated in McLoughlin that a two hour delay period was at the margin of the time span for recovery. There seems to be some division of thought here as a result of the undefined time span. This seems to be an arbitrary timescale and which would appear to suggest that a claimant who is contacted by mobile phone and told to attend at a hospital and lives just a few blocks away may be able to recover, whereas a claimant who lives in another town may not.

Is a claimant who is away on business and on return identifies a dead spouse any different from a person who is called from work just down the street to identify a dead spouse? Exactly what is meant by the claimant's proximity to the event or its immediate aftermath has been rendered even more confusing by the decision of the House of Lords in W v Essex County Council8. In this case, the claimant's parents took into their care a youth placed with them by the local authority, who was the defendant.

The youth committed acts of sexual abuse on the claimants' children, and when this came to the knowledge of the parents, they suffered psychiatric illness. The defendants sought to strike out the claim, but this was refused by the House of Lords. Lord Slynn, with whom all the other Law Lords agreed, stated that it was in no way certain that the parents would fail to satisfy the required proximity to the event or its immediate aftermath in both time and space. Lord Slynn stated that he was uncertain that in this case, the parents would have to come across the abused or abuser immediately after the sexual event.

Given the statements regarding time in Alcock and McLoughlin, this seems a very strange proposition of law. In addition, the parents were not witnesses to the abuse – they discovered it some time later. Their position is similar to that of parents who are told of their children's involvement in an accident after the event, and in Ravenscroft v Rederiaktiebolaget Transatlantic9, such a person was denied recovery for nervous shock. Therefore, there would appear to be considerable uncertainty in deciding in any particular case whether or not there was sufficient proximity to the accident or its immediate aftermath in time and space.

The never-ending problem in the law of nervous shock comes in the form of the word 'shock'. In Walters v North Glamorgan NHS Trust10, it had to be decided by the Court of Appeal whether an event after which 36 hours had lapsed could constitute 'shock', or whether it was a gradual assault of the mind over a period of time. The court, looking at the facts, held that this 36 hour period constituted an event, and stated that the present law permits a realistic view to be taken in each individual case.

Recent developments in the House of Lords have resulted in attempts to introduce some logic into the area of nervous shock. In Page v Smith11, their Lordships held that it is inconsequential whether the injury caused is physical or psychiatric once it can be proved that a defendant is under a duty of care to avoid causing personal injury to a claimant. Thus, providing that it is reasonably foreseeable that the claimant might suffer personal injury, that will suffice in a nervous shock claim.

Furthermore, the House stated that in nervous shock cases, it is important to distinguish between primary and secondary victims, as only secondary victims are subject to the restrictions in Alcock. As a result, the illogical distinction between physical and psychiatric injury has been abolished for primary victims. In White and others v Chief Constable of South Yorkshire Police12, the House of Lords removed what had been recognised as an illogical and unjust decision between claimants that had been brought about by the decision of the Court of Appeal in this case (reported as Frost v Chief Constable of South Yorkshire Police13).

The case concerned the Hillsborough disaster and, while in Alcock the claims of the deceased families were not allowed, in Frost, the claims of the police officers who were present were mostly allowed. The Court of Appeal reached this conclusion by holding that as the plaintiff police officers were in an employer-employee relationship with the defendant Chief Constable, a duty of care was owed to them where injury was caused by the negligence of the Chief Constable. Hence, the distinction between primary and secondary victims was irrelevant in the employment situation.

The Court of Appeal also held that the police officers were rescuers and could recover relying on that status, which also did not involve the application of the Alcock criteria. This decision was overturned by the House of Lords, which held that an employee who suffered psychiatric injury in the course of employment had to prove liability under the general rules of negligence, that is employers' liability is not a separate tort with its own rules, but merely an aspect of the law of negligence.

Their Lordships also went on to deal with the rescuer argument, and held that a rescuer had to show that he had exposed himself to danger or reasonably believed he was so doing. Thus, rescuers are not to be treated as primary victims merely because they are rescuers. Consequently, in Greatorex v Greatorex14, the High Court, following White, refused to allow recovery to a rescuer qua rescuer as he had not been exposed to danger in the course of the rescue, nor had he been in reasonable fear of such danger.

It should be noted that when the High Court had to ponder upon an extension to the law of nervous shock in Greatorex, in which the rescuer was the father and the personal injury to the primary victim was self-inflicted due to the primary victim's own negligence, the court took into consideration policy issues in denying the rescuer recovery. As decisions which involve matters of policy are most difficult to predict and are subject to a wide amount of judicial variation, this adds to the uncertainty in the area of nervous shock and as such there remains a severe restriction on the scope of recovery.

As a conclusion, it is obvious that the current state of law on nervous shock is illogical, sketchy and uncertain in some respects. The solution to this would perhaps be the enactment of a statute, but the question of whether this would be at the expense of justice and flexibility is another issue of its own. Should the law specify categories of relationship into which a claimant must fit to be able to recover? Should the criteria for proximity in time and space be defined? Surely, the only limits that could be so defined are 'reasonable' proximity in time and space, which are hardly certain.

Furthermore, it will also be difficult to find a basis for the thin line between psychiatric injury caused by a sudden shock and the same injury, caused by, for example, the stress as a result of having to care for a critically injured relative, or the grief of being bereaved. A statute could remove the necessity for direct sight or sound of the accident or its immediate aftermath, and allow recovery where the claimant is informed by a third person, subject to the claimant proving that it was the accident that caused the nervous shock, rather than his mind imagining what the accident and its effects were.

A statute will obviously not solve all the problems associated with nervous shock overnight, but it could at least introduce a welcome degree of certainty and logic into this area of the law. Perhaps also, the requirements of proximity should be abolished. The requirement for psychiatric injury to be caused by sudden shock should be abandoned. Hence, it can be said that there will still remain a severe restriction on the scope of recovery for nervous shock, for as long as the law continues to remain uncertain.