'Even after judicial attempts to clarify the principles governing liability for psychiatric harm… loose ends remain. ' (Street on Torts) Discuss. The principle governing the liability for psychiatric harm has attracted many criticisms. It's 'somewhat arbitrary distinction(s)'1, and mismatch between medical knowledge and legal principles2 have justified judicial, legislative and academic calls for reform. Despite these attempts, many loose ends remain.
This essay will begin by briefly explaining the rules and principles that govern liability for psychiatric harm as established in Alcock v Chief Constable of South Yorkshire3. Through examining the development of case law, it will be shown that there has been a general judicial hesitance in limiting their judicial discretion and providing definitive answers in order to ensure fairness and limit floodgates.
By stressing criticisms offered in the Law Commission Report, by academics and imaginary 'hard' cases, it will be argued that although the judiciary had not succeeded in clarifying the principles governing liability for psychiatric harm in a coherent and morally defensible manner, it has succeed in clarifying their stance on psychiatric claims through their insistence of wide principles in order to maintain control over the wide-ranging circumstances in which psychiatric claims arise.
Before examining the principles and case law in regards to psychiatric liability, it is necessary to highlight that there are arguably different meanings of the judiciary clarifying principles governing liability for psychiatric harm. On one hand, the judiciary could clarify the principles in a 'more coherent… morally defensible'4 way by specifying and resolving the many questions that were left unanswered. Whereas, courts could attempt to clarify the principles governing liability for psychiatric claim by simply stressing policy considerations as their overriding principle in determining psychiatric injury claims.
For the purposes of this essay, 'judicial attempts to clarify the principles… ' will be taken to be the judicial attempts in making the principles more coherent and morally defensible. Psychiatric Injury – Duty of Care The general tests in establishing whether the defendant owe the claimant a duty of care for psychiatric injury is the classification between 'primary victims' and 'secondary victims' as coined by Lord Oliver in Alcock v Chief Constable of South Yorkshire5.
This was the test case brought by the relatives and close friends of those caught in the crush at the Hillsborough football stadium tragedy. In determining whether the defendants owed the claimants a duty of care, the House of Lords had followed Lord Wilberforce's proximity requirements in McLouglin v O'Brian6 despite hints of a broader approach. 'Primary victims' are those physically imperilled by the defendant's negligence and suffer psychiatric illness as a result.
It must be noted that rescuers, according to Chadwick v British Transport Commission7, also fall within the ambit of the primary status. Whereas, 'secondary victims' are the 'passive and unwilling witness(es) of injury caused to others'8. Those who fall within the secondary status must overcome a number of 'control mechanisms'. There must be proximity in terms of relationship of a close tie of affection with the person injured or endangered. There must also be proximity in time and space as well as perception.
With the principles laid down in Alcock briefly highlighted, this essay will examine the problems that have been caused by this classification and whether there have been any judicial attempts in dealing with them. Problems Caused by the Primary/Secondary Victim Classification The test laid down in Alcock has sparked many criticisms for being extremely arbitrary and rigid, especially with regards to the legal hurdles that secondary victims must overcome. One of the most prominent criticisms of the Alcock principles is the argument that the distinction has 'little or no meaningful purchase'9.
Harvey Teff uses the example of the Court of Appeal in Frost v Chief Constable of Yorkshire Police10 to illustrate this argument where Rose LJ, Judge LJ and Henry LJ each came to different conclusions in relation to the claimant's status11. As well as this, although the Lord Hoffmann had stated in White v Chief Constable of South Yorkshire12 that the 'search for principle was called off in Alcock'13, Lord Slynn had described the classification as 'not… finally closed'14.
This suggests a confusing and problematic distinction which has 'proved to be a distinct embarrassment'15. Harvey Teff also highlights the apparent mismatch between medical knowledge and the current law. He refers to the general requirement as established by Lord Ackner in Alcock for psychiatric illness to be shock-induced by a horrifying event16. Teff highlights that this is a 'confusing, somewhat patronising, label, (which) unhelpfully blurred the distinction between the nature of the condition described and its cause'17.
Since the term 'nervous shock' has been increasingly condemned as unscientific and was since abandoned by several jurisdictions such as Australia and South Africa, it is worrisome that this requirement remains in English and Scottish law. Furthermore, criticisms have been raised in regards to the discrimination between physical injury and psychiatric injury. A claimant suffering from psychiatric injury and physical injury as a result of the defendant's negligence is treated as an ordinary injuries claim where claimants could recover any injury (physical and psychiatric) so long as physical injury was foreseeable.
Peter Hanford stresses the fact that psychiatric injury is not any less of a 'real' injury 'than those which involve the breaking of bones, (and the) spilling of blood'18. As well as this, it has been argued that 'mental harm can be more disabling and harder to endure than tangible bodily injury'19. Finally, the primary/secondary classification has also been criticised for creating judicial inconsistencies, especially with regards to the question of foreseeability.
Mark Lunney and Ken Oliphant has highlighted that it is impossible to 'make and scientific assessment of the consistency of judicial rulings on foreseeability… (because) of the inherently vague nature of the concept… coupled with the infinitely varied facts of individual cases'20. With the most prominent problems caused by Alcock's primary/secondary classification examined, this essay will move on to examine judicial as well as legislative and academic attempts of clarifying the principles governing psychiatric claims into more coherent and morally defensible principles.
Judicial and Other Attempts of Reform As illustrated above, the Alcock primary/secondary classification has sparked many criticisms. Courts have since been faced with the difficult task of 'working with' these principles whilst, at times, delivering their strong feelings against them. This is clearly shown in the case of White which was the case brought by the police officers who had suffered psychiatric injury as a result of the Hillsborough football stadium disaster.
The House of Lords were faced with the question of whether the defendants owe the claimants a duty of care as an employer and whether the claimants could recover damages as rescuers. In their judgment, Lord Steyn and Lord Hoffmann display their disappointment with the principles governing psychiatric claims. Lord Steyn stated that the 'law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify'21 and Lord Hoffmann went even further in stating that 'no one can pretend that the existing law…
Is founded upon principle'22. With this in mind, Lord Hoffmann believed that without legislative change, courts must continue to live with them as it is now 'too late to go back on the control mechanisms as stated in Alcock'23. From this, we see the House of Lords incapability of clarifying the psychiatric claims principles in a more coherent and morally defensible manner due to the restraints from precedent. Although Lord Slynn had suggested in W v Essex County Council24 that the primary/secondary classification debate was 'not…
Finally closed'25, it is clear that the primary/secondary classification is still an arbitrary and rigid principle which courts cannot simply abandon. In relation to Teff's criticism of the mismatch between medical knowledge and current legal principles, Teff acknowledges that there has been several judges which have begun to use more neutral and less emotive terminology in place of 'nervous shock'26, but it is still difficult to understand why the requirement that psychiatric injury be shock-induced from a horrifying event has not be entirely abandoned.
This is especially worrisome considering there was no precedent for such a requirement pre-Alcock where decisions have shown that the onset of psychiatric illness 'is more plausibly explained by the gradual, cumulative assaults' as a whole process or experience27.