The Law Commission Analysis

Another category is 'involuntary participants' which are when the plaintiff is put in a situation to think that they are about to involuntarily cause the death or some sort of injury to another by the defendant. This was seen in the case of Dooley v Cammell Laird Co Ltd. 38 Here, the plaintiff was under the impression that he had caused injury to his work mates when the cable on his crane had snapped causing a load of cargo to fall onto the ship. Here, it was decided the plaintiff could recover based on the judgement in the case of Alcock given by Lord Oliver39,

"The fact that the defendant's negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event establishes of itself a sufficiently proximate relationship between then, and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable" In this case, the plaintiff would be able to recover even though he is not close to the accident in space or time. 40 Hence, this shows irregularity in the law as the above would be a requirement for the other categories.

Next category covered under psychiatric injury is mere bystanders. This was established in the case of Bourhill v Young41 where Lord Porter42 stated, "the driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure…. the noise of a collision and the sight of injury to others, and is not to be considered towards one who does not possess the customary phlegm" However, in the Alcock case, the HOL didn't rule out the possibility of a claim from a bystander.

This was stated by Lord Ackner43 stating a claim could be successful if it was so horrific that an ordinary bystander would have been shocked. There are 3 possibilities on how a claim from a mere bystander could be successful; a) an exceptionally horrifying event leading to compensation b) simple exclusion from compensation c) compensation payable as long as conditions of proximity of event are satisfied This causes some obvious difficulties. Regarding the first scenario, deciding on the nature of event as horrific or not would be very subjective and would cause inconsistency.

Regarding the 3rd scenario, it would open a floodgate of cases. The second option is inconsistent compared to the approach used in Donoghue v Stevenson44 where Lord MacMillan stated "the categories of negligence are never closed" and also approach by Justice Brennan in Sutherland Shire Council v Heyman45 favouring the development in tort law. The next requirement to claim for psychiatric illness is the witness must have witnessed the shocking event or was around soon after. This limb has been a subject of contention.

In Hevican v Ruane,46 the judge decided that the plaintiff could claim for damages as he suffered from serious reactive depression after being told about the death of his son 2 hours after it occurred and identified his son at a mortuary 3 hours after it occurred. Justice Mantell stated the injury was foreseeable and there was a causal chain47. However, on appeal, the HOL states that the case of Alcock has stated that identification of bodies in a morgue does not satisfy this limb. This was also seen in McLoughlin v O'Brian48 the plaintiff, Mrs.

Loughlin saw her husband and kids in a bloody, dirty and dishevelled appearance at a hospital after the accident was allowed to claim as it was in the 'immediate aftermath'. However, she arrived at the hospital several hours after the accident. Hence, what would suffice as 'immediate aftermath'? In Taylor v Somerset Health Authority49, the plaintiff tried to claimed damages on psychiatric injury suffered after the death of her husband after been negligently treated for months. She was waiting outside when he died and identified him minutes later.

However, Justice Auld held this claim shall fail as identification could not suffice as being 'immediate aftermath' stating the fact of the death shall be treated separately from the circumstances. In Sion v Hampstead Health Authority50, a father claimed damages on the facts that the son was injured in a road accident and treated negligently after that in the hospital. The father watched his son's condition worsen over 14 days before he died. His claim failed as the Court of Appeal stated there was no 'shocking' event and it was expected, hence, the claim must fail.

However, in Tredget and Tredget v Bexley Health Authority51 parents were allowed to recover damages as their son was delivered negligently and arriving in a distress condition needing resuscitation. The event was said to be 'horrific' and shocking enough to be able to claim. As it can be seen, this is the area of law on nervous shock that needs clarity. The Law Commission has suggested that the conditions for proximity of event shall be disregarded where there are close tie in a relationship such as parent/child etc.

The final requirement is that the shocking event must be of normal fortitude. This is consistent with the law on negligence, which is if one is to suffer injuries, it must be foreseeable. As quoted by Lord Wright52 in Bourhill v Young. The idea of normal fortitude was put to test in Page v Smith53. Here, a driver was involved in an accident where he suffered no physical injury. He claimed for damages stating he suffered from myalgic encephalomyelitis54. Even though this isn't a psychiatric illness, it has strong non-physical elements.

His action failed as the Court of Appeal held this was not an injury a person of normal fortitude would suffer; hence, it was not foreseeable. However, the judgement was overturned on the ground that the judge was mistaken in suggesting that the 'normal fortitude' test only applied to those not involved in the accident. But then again, the error has a 'silver lining' as limiting it to secondary victim would remove the duty of the judge in decided the degree of 'shock' in each accident.

Another reason why the decision was overturned was because the decision by the COA had a lacuna, what would have happened if Mr. Page suffered minor physical injury? Would that be deemed as 'normal fortitude', hence the action shall succeed? Ergo, the House of Lords allowed the appeal55 56 and confirmed that only secondary victims were subject to the normal fortitude test. It also stated that since physical injury was foreseeable, psychiatric injury would be as well as there is no law stating the both should be treated differently. 57 However, has this made the law just?

Or should the normal fortitude test only apply to a secondary victim who is a mere bystander? The House of Lords do show some suggestion of favouring this opinion as seen in Bourhill v Young58 where Lord Porter59 stated an individual who strolls the streets with ordinary phlegm, does not have special relationship to the primary victim of an accident, hence, is a mere bystander and shall not be allowed to claim. The Law Commission stated this requirement is crude as drawing a distinction between normal and abnormal fortitude would be unfair.

This was seen in Haley v London Electricity Board. 60 The law on psychiatric injury is quirky especially when a defendant inflicts self injury and the plaintiff claims for damages after witnessing it. An example is committing suicide in front of another. However, an Australian case, Jaensch v Coffey61 suggest there would be no liability. Another possible problem is when there is contributory negligence involved, as stated by Lord Oliver62 in Alcock v Chief Constable of South Yorkshire Police63. It places a duty to care for oneself which would contradict the right to self-determination.

Another area not covered is whether there should be liability for bad news which has been negligently communicated, whether true or false. However, looking at this from the whole, this would place a burden of responsibility on the professionals such as doctors and firemen on who should deliver the bad news which could result in delay and a drop in the standard of work. Looking at psychiatric injury caused by property damage, the Law Commission are of the opinion that the same criteria used to assess liability should be used as in the cases of injury or human safety.

Another area which has been rather vague is in regards to liability of employers when causing stress or other psychiatric injury. In Walker v Northumberland County Council64 an employee succeed in her claim of psychiatric injury. The Court of Appeal held that it was the second time it has occurred, hence, the employer should have been aware and foreseen that a psychiatric injury could occur if the worker was overworked again. The Law Commission agree that employers should be liable in certain circumstances in order to protect employees.

A reform needs to be done in order for clarity in this are of the law, a statutory framework governing claims for damages in regards to psychiatric injury should be in place, as can be seen in Australia. In regards to the question always forwarded on whether a piece of legislation should be in place for negligently inflicted psychiatric injury, Lord Scarman certainly felt so as seen in McLoughlin v O'Brian. 65 A reform is certainly needed especially when the defendant has negligently injured someone other than the claimant.

On the other hand, trying to codify an area of law such as this would be difficult if not impossible. Hence, leaving it to judicial development might be a sensible solution. All in all, a reform is certainly needed for some clarity and consistency. Another possible issue commonly raised is whether there even should be a distinction between physical and psychiatric injury. Medical research has proven that severe shock can cause changes in the chemical composition of the human nervous system. 66 However, proving causation would be difficult hence limiting this opinion on removing the distinction.