The law relating to negligently inflicted psychiatric harm, or 'nervous shock' as Courtspeak has dubbed it, is one of the most recent, evolving and controversial areas of the law of torts. However, it is submitted that, in this area of the law, a legacy has been left of vagueness, illogicality and injustice. The area is therefore ripe for a special study. This essay will aim a trident of criticisms at the current law: Firstly, the current principles are so unacceptably vague as to make predicting the outcome of cases very difficult.
This has repercussions for practitioners and claimants. Also this has surely been shown by the tangled mass of case-law. From the expansion of McLoughlin v O'Brain (1983), to the complex turgidity of Alcock v Chief Constable of South Yorkshire (1992), the hope of Frost v Chief Constable of South Yorkshire (1997) and the reaction of White v Chief Constable of South Yorkshire (1999), the legacy is one of uncertainty and contradiction.
Along the way we find islands like Hevican v Ruane (1991), and vortexes like Hunter v British Coal Corporation (1998), but none manage to lift the gloom of uncertainty. Clearly this has ramifications for practitioners in advising clients, judges in deciding cases and the public as to their responsibilities. Secondly, the current position is illogical, non-sensical and above all arbitrary. Not only does this lead to injustice, but is indefensible as a rational legal structure.
Of especially strong criticism is the apparent treatment of psychiatric harm as less serious than physical, conscious or otherwise. Thirdly, the situation is too serious to be dealt with by the common law: in any case, the courts do not seem either capable or willing to install a fair and modern system. As was stated in White: any changes must be by Parliamentary intervention. Therefore, legislation is required to deal with the serious problems that arise in the law, especially with regard to secondary victims.
It is agreed with the Law Commission that complete codification of the law is not suitable, partly because much of the law is satisfactory, and for example with regard to primary victims, where the House of Lords, correctly it is submitted, have held that control mechanisms have no place and partly because there needs to be flexibility in this complex and developing area: the common law should be allowed to adjust to new situations as they arise
The requirements for 'primary victims' are at present satisfactory on paper, as control mechanisms have been held to have no place. But in our main area of interest, 'secondary victims', it is recommended that the following tests be incorporated into legislation. And it should be noted that much is owed to the "reasonable foreseeability" test of Hevican, Ravenscroft and Lord Bridge in McLoughlin, with alterations to cope with perceived dangers arising from that: they are primarily 'floodgates' measures.
The tests run as follows: Was the injury reasonably foreseeable? Subject to the following qualifications: a) a recognizable psychiatric condition; b) a requirement of 'Fault'; c) a close tie of love or responsibility and d)any case where the court thinks it manifestly justiceable that the plaintiff should recover.