The Law Commission Consultation

The Law Commission Consultation Paper No 137, 'Liability for Psychiatric Illness'1 made radical changes to the scope of recovery for psychiatric injury. This was the 3rd paper to be published2 as the Law Commission noticed it was an area which needed substantial amount of changes, especially after the ruling in Alcock v Chief Constable of South Yorkshire Police3 by the House of Lords. The subject matter which has been in contention is negligently inflicted psychiatric illness also known as 'nervous shock'4.

Hence, this discussion will be based on the special restrictions placed on psychiatric injuries which are not imposed on physical injuries. To further reiterate this point, this could be seen in the case of Cambridge Water Co v Eastern Counties Leather plc5 where it that even if it's a Rylands v Fletcher claim6, the damage which raised the possibility of compensation must be foreseeable. The current requirements for psychiatric injuries are; a) must be a recognised psychiatric injury7 b) injuries suffered by plaintiff must be because of reasonable fear to himself or reasonable fear of real injury to another.

For the second requirement, the plaintiff must have a special relationship with the individual in danger and must be present when the event occurred or at least soon after. Furthermore, the normal fortitude rule must be fulfilled meaning it must be 'shocking' to a normal person. If its not, the general rule would not apply. This will be touched in detail below. To start off, there are many reasons behind these special conditions or requirements. Among the common reasons are to avoid a floodgate of cases and exaggerated and fraudulent cases.

Others are to avoid contradicting medical opinions and also to emphasize psychiatric injuries are not as serious as physical injuries. 9 The fear of floodgate of cases resulting from a single case has been the main reason. Lord Edmund Davies10 and Lord Bridge11 criticised this reason in McLoughlin v O'Brian12 stating it's harsh to limit someone of their rights just because a crowd was around when it occurred. However, the Law Commission do state that it may be arguable that the requirement of a recognised psychiatric injury may be enough.

The reason of fraudulent and exaggerated cases did not sit well with the Law Commission. According to medical evidence, this was highly uncommon due to the availability of technology in conducting psychological tests. Furthermore, the reason of psychiatric injuries not being as serious as physical injuries was inaccurate. As seen in the argument by Mullany and Handford13, it stated a wounded mind is harder to heal compared to a wounded body. However, the secondary victim ruling is the real reason behind the floodgates argument.

This was why the Law Commission stated the proximity tests should be still in use and mere foreseeability is not sufficient. It stated this while keeping in mind the dicta in14 Caparo Industries plc v Dickman15 and Anns v Merton London Borough Council16. Moving on to the type of psychiatric illness which are recognised, in Hicks v Chief Constable of South Yorkshire Police17 18, the House of Lords held that fear, even if of the greatest of degree, is a normal human behaviour and hence, would not be compensable. This is because in negligence, the plaintiff would have to prove that he suffered some sort of damage.

Hence, mere emotions would not be sufficient. However, if submitted as distress in non-negligent tort such as harassment, assault or intimidation, then damages could be recoverable. This was seen in Khorasandjian v Bush19. Psychiatric injuries are classified in a vast manner of ways in accordance to its purpose. However, for diagnostic purposes on law, it must be classified in accordance to the criteria given by the American Diagnostic and Statistical Manual of Mental Disorders20 or International Classification of Diseases and Related Health Problems21.

Considering that one might be suffering from more than one psychiatric illness, the law recognises this as can be seen that even though 'simple' grief is not compensable, 'pathological' grief can be and is a recognised psychiatric injury. The matters above got approval from arbitrators in the Herald of Free Enterprise arbitration in regards to a capsize of a ferry22 where the arbitrators made important points in regards to psychiatric consequences of trauma23. In the case of Dulieu v White & Sons,24 25 the Court of Appeal decided that psychiatric illness which was caused by reasonable fear of injury to oneself was compensable.

However, claims are likely to fail if the defendant can argue that because of the safety in regards to the location of the plaintiff, the plaintiff could not have reasonably feared for his safety. This was seen in the case of McFarlane v E E Caledonia Ltd,26 where the Court of Appeal held that the fact the plaintiff was some 550 yards away from the explosion27, he could not have reasonably feared for his safety. In Hambrook v Stokes Brothers,28 the Court of Appeal established that fear for another could be compensable as well.

One example is imagining a mother at gunpoint, she would fear for her life, hence could be compensable. Now, imagine her child at gunpoint, she would fear the life of her child. This idea is supported by the Law Commission in their Consultation Paper No 137, 'Liability for Psychiatric Illness'. However, some conditions need to be satisfied; a) plaintiff must have special relationship to the person in danger29 30 b) the person must have been imperilled by the event and the plaintiff witnessed it or was there soon after the incident.  

In the case of Alcock, the House of Lords thought of categorising relationships which would confer as close tie of love and affection but decided against it as it would be harsh. By default, English law recognises husband/wife and parent/child relationships and till date, are the only ones recoverable. However, the Law Commission are of the opinion that a list of rebuttable presumption should be made for clarity of the law and should include relationships such as de facto spouses, stable homosexual relationships and brother/sister relationships.

This is one of the limitations placed on psychiatric injury. In regards to rescuers, based on the grounds of public policy and foreseeability, rescuers are owed a duty of care and are eligible for damages if they suffer psychiatric injury. This was seen in Chadwick v BRB32 and was approved in McLoughlin v O'Brian33. However, the area which causes a lot of confusion is when a rescuer is deemed as a mere bystander and whether professional rescuers34 can claim for damages.

Defining rescuers have been left to the discretion of the courts till date in order to discourage rescuers. The article, 'Stress on the Boat' in the Times35 were of the opinion that professionals should be precluded from claiming damages, in line with heavy damages paid out to rescuers36 of the Hillsborough incident. The House of Lords in Ogwo v Taylor37 stated that professional rescuers could claim if requirements of negligence were satisfied and it could be shown that the rescuer didn't take risk.

Hence, the HOL stated why psychiatric injury should be disregarded. It should be deemed that a police officer suffering from post-traumatic stress would suffer equally if not more that an officer with broken bones. To add to this, by excluding professional, the law might encourage them to do nothing more than their legal obligations. However, the topic in contention is in regards to a professional rescuer having higher 'normal fortitude' than a ordinary lay person.