The Law Commission difference

In current law, there is no difference between a rescuer and an ordinary claimant, in order words, the one who is at no risk of physical injury must satisfy the Alcock control mechanism to be successful. In reaching this position it could be said that the majority in White were unduly influenced in attempting to give solace to the relatives in Alcock. [30] In terms of legal principle, the current position is hard to justify, a point in fact conceded by the majority, and the vie of the minority in relation to rescuers is preferable.

[31] The minority argued that White was suppose to follow the decision in Chadwick v BRB[32], which was considered to be that, as with physical injury, rescuers would be in a special position and have a successful claim. However, the majority allowed the appeal by the defendant and held that a rescuer who was not at any risk of physical danger could not be classified as a primary victim and therefore, they would have to satisfy the Alcock mechanisms to be successful. [33]

So, the question would be whether the law should be extended incrementally to impose liability where a rescuer, in no physical danger, suffers psychiatric injury? Lord Hoffmann felt that it would not be reasonable in doing so. Firstly, it is clearly understood that a rescuer is someone who put himself in physical danger. If the term was extended as proposed to cover those who provide assistance in the aftermath, then the difficulties would arise in distinguishing such a person from a mere bystander.

[34] However, Lord Griffiths holds another point of view, believing that a distinction could easily be established on the facts of each case. [35] It is arguably that Lord Griffiths’s view is better in the sense that while some distinction is required in order to prevent too comprehensive liability, taking matters on a case-by-case basis allow control to be maintained but also allows flexibility where warranted. Furthermore, for witnesses who are mere bystanders, people without any relationship with primary victims has the most difficult position regarding claims for psychiatric injury.

The Law Commission therefore suggested the law should refuse all claims by bystanders. [36] However, The objection can be found in Alcock, such claims were not ruled out entirely, at least in those situations where the circumstances of the accident were particularly horrific. [37] Clearly, it is not reasonable to deny a claim if the horrific context could be attribute to the defendant’s negligence and the bystander proved the causal link between the event and the illness was not abnormally sensitive, then there is no reason in principle for objecting to recovery.

Perhaps we could be asking the more direct question: “Regarding to the context of the incident, was the plaintiff’s condition a reasonably foreseeable result of the defendant’s negligence? ”[38] This suggestion satisfied the Lord Bridge’s statement because the numbers that would satisfy the question would probably be relatively small. Moreover, in the light of foreseeability and causation, this test would bring a fair and just outcome but nevertheless able to avoid the vagueness of the current law. Whether bystanders and rescuers should grant a recoverable claim is still controversial, this reinforced the imperfectness of the current law.

The law should not deny a claim mainly because the plaintiff is not in a recoverable category. The role of tort is to compensate, at the expense of those whom the law deems responsible, those that have been injured. [39] The current law did not warrant this but restricting their claims; all should be done is that each claim is measured against the same legal principles, not categories. For instance, the control mechanism proposed in Alcock would deny a relative who had attempted a rescue, while the mechanisms from White would defeat a claim by the policemen where they had no more than witnessed the event.

It is hard to argue with this reasoning, particularly as it is firmly grounded in principle. The thresholds on the current law, such as the requirements of proximity and aftermath have lead to widespread calls and criticisms. Therefore, reform on this area is desirable. A significant aspect of the Commission’s proposals was to remove the second and third mechanisms mainly due to the unjust results they engaged;[40] the first mechanism would be retained in an amended form.

In fact, such proposal is very similar to other jurisdictions such as Australia, which has been a pioneer of codifying this area of law. Therefore, a comparison between two jurisdictions might be helpful in determining whether the English Law should adopt the Commission’s proposal. The Australian law of psychiatric illness is now governed by the Law Reform Act 1944. [41] Similarly, the main requirement is that the plaintiff must prove the defendant’s negligence caused him or her to suffer ‘mental or nervous shock’.

[42] The main difference compare to the current English law is that, instead of having the foreseeability test, the case goes through a statutory formula, which lays down a general rule of liability as an addition to existing rules of liability”. [43] There are several advantages of having a statute replace the common law. For example, the statute allows plaintiffs to recover in cases where it is not possible at common law. If a parent or husband or wife of the person killed, injured or put in peril suffers sock as a result of the accident, they can recover whether or not they were present at the accident or its aftermath.

[44] What matters is not how they learnt of the accident, but their relationship to the accident victim. However, there are considerable problems in converting into legislative form all the issues that have arisen in the case law governing liability for psychiatric damage. For example, as Handford and Mullany points out, that the Australian jurisdiction does not canvass matters such as relationship beyond the family sphere, modern means of communicating distressing news and many other problematic areas dealt with.

[45] It seems the cumbersome categories of victims tend to undermine the Commission’s very welcome insistence on the critical importance of actual ties. Therefore, legislative codification is not appropriate mainly because the flexibility is not guaranteed in statute. [46] In the light of the continuing difficulties presented by the common law, the example of the statutory reforms in Australian jurisdictions and the enlightened attitude taken by the judges in those jurisdictions to questions of liability for psychiatric damage should be heeded.

To conclude, it is submitted that the statement per Lord Bridge describes an ideal. However, the present law of psychiatric illness suffers from a lack of coherence and it does not fulfill Lord Bridge’s expectation. The rules developed in Alcock and White seems to deny liability to many genuinely deserving claimants. As Lord Oliver in Alcock, who said this area of law were to be found “not in logic but in policy”. [47] Therefore, it is an emotionally charged area of liability which raises acute moral problems.

In order to ensure justice to victims of negligence, reform is desirable but not a necessity. It is the prospect of such an undignified spectacle, which has led the Law Commission to recommend replacing the rebuttable common law presumptions of close ties of love and affection with conclusive presumptions in statutory form. The Commission’s proposals would vastly improve the situation while still maintaining control over claims. In fact, due to the flaw of the Commission, the Parliament has not taken the recommendation until today.

Interestingly, after 14 years, the Law Commission has not published any new recommendation since No 249 published in 1998. Does it imply that we should leave the current law alone? Clearly, the main reason of this complexity in the area of psychiatric injury is mainly due to the physical limitation, namely, mindreading is impossible. [48] Therefore, while medical technologies improve rapidly, there will be a positive effect on this area of law. Someday, optimistically, we might reach a satisfactory result even we leave the law alone today.