Professional Documents
Culture Documents
Tort Law - Psychiatric Injury
Tort Law - Psychiatric Injury
Injury- Requirements,
Restrictions and
Recommendations
Psychiatric harm is a condition where an individual suffers
psychiatric illness as a consequence of anothers negligent actions
or omissions. Claimants must prove that their symptoms reflect a
recognized psychological disorder1 and that the defendant owed
them a duty of care by: establishing the existence and breach of a
duty, demonstrating causation between the breach and illness, and
proving that the illness was not a remote consequence of the
breach.2
Restrictive measures in this area of tort are due to the fear of the
floodgates opening, resulting in an overabundance of claims. Other
reasons include fear of excess litigation, fraudulent claims3,
insurance burdens, and concern that compensation will prove as a
disincentive for people to enter rehabilitation. These policy concerns
may be overstated, and the laws message appears to be that
mental and emotional well-being is less significant than physical
well-being.4 This essay is concerned with modern psychiatric injury
cases commencing with McLoughlin v OBrian5, and explores the
issues and developments in this area of tort.
1 M Lunney and K Oliphant, Tort Law: Text and Materials (4th edn,
OUP 2010)p.337
2 Harvey Teff, Liability for psychiatric illness after Hillsborough,
[1992] 12 OJLS
3 Harvey Teff, Liability for psychiatric illness after Hillsborough,
[1992] 12 OJLS
4 Harvey Teff, Liability for Psychiatric Illness: Advancing Cautiously,
[1998] 61 MLR
5 McLoughlin v OBrian [1983] 1 AC 410 (HL)
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Classifying plaintiffs
The distinction of claimants came about in Alcock v Chief Constable
of South Yorkshire6, where Lord Oliver categorized psychiatric
illnesses into two categories: primary victims were those involved as
a participant in the event from which the claim arose. Secondary
victims witnessed the injury caused to others and were not
personally threatened or directly involved. A primary victim is able
to claim upon proving that the risk of suffering injury was reasonably
foreseeable, a secondary victim is subjected to a number of
restrictive controls in addition to the foreseeability test:7 proving a
close tie of love and affection to the primary victim, perception of
the event by his own unaided senses, proximity to the event or its
immediate aftermath (temporally and physically) and that he is a
person of reasonable fortitude8. The proximity requirements are
defined vaguely, making it difficult for the judges to interpret the
meaning of these requirements, therefore introducing an element of
subjectivity in their interpretations. The imposition of additional
proximity requirements for secondary victims is excessive as the law
attempts to limit claims as a policy requirement, evident in Page v
Smith9 where Lord Lloyd suggested the necessity of a distinction
between victims in all psychiatric injury cases.
A further issue of classification was the differences in definitions: in
Alcock10, Lord Oliver considered rescuers and involuntary
participants as primary victims, whereas in Page11 Lord Lloyd
confined the category to those directly involved in the accident
6 Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 (HL)
7 FA Trindade, Nervous shock and negligent conduct, [1996] 112
LQR
8 Danuta Mendelson, The History of Damages for Psychiatric Injury,
[1997] 4:2 Psychiatry, Psychology and Law
9 Page v Smith [1996] AC 155 (HL)
10 Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 (HL)
11 Page v Smith [1996] AC 155 (HL)
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fixed list assumes that a close tie exists in all the relationships
stated, which may not be true. This may lead to a flood of claims
where several relatives claim under the same case due to the fixed
list identifying their relationship. The judges should base their
decisions on a case-by-case basis rather than adhering to a fixed
list, as it may be possible that a friend may be affected more than a
parent in some cases, but the friend would have to prove the
strength of their relationship whereas the parent would not. The
degree of care should be viewed in the context of the surrounding
circumstances, nature of the accident, and the seriousness of the
injury to the primary victim.20
In Alcock, the brother of a primary victim could not prove the
closeness of their relationship, and failed to claim. This led to the
question of how horrific an event needed to be to elicit a claim,
considering that relatives of primary victims of Hillsborough failed to
recover damages even though they watched the events unfold21.
The LC
22
Proximity Requirements
Additional to proving a close tie to the primary victim, secondary
victims have to satisfy certain proximity requirements:
Temporal proximity requires the claimant to be present at the scene
during the accident or its immediate aftermath. In Alcock26,
plaintiffs who were not on the ground at the time of the disaster did
not satisfy this requirement, and identification of the bodies at the
mortuary nine hours later was considered outside the scope.
However, in Jaensch v Coffey27, Deane J said that the aftermath
persisted so long as he remained in the state produced by the
accident up to and including immediate post-accident treatment.
The distinction between aftermath and immediate aftermath is
arbitrary and without definition, which then leads it to become
subjective and left to the judges discretion. Even if the victim was
24 Law Commission, Liability for Psychiatric Illness (Law Com No
249, 1998)
25 Attia v British Gas [1987] 3 All ER 455
26 Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 (HL)
27 Jaensch v Coffey (1984) 33 SASR 255 (SC Australia)
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tended to by the time the plaintiff saw him, it should not undermine
the fact that the plaintiff may still suffer from psychiatric injury.
Physical proximity requires the claimant to be present at the scene
of the event or its immediate aftermath. This is closely related to
temporal proximity. An inconsistency in the law is highlighted in
Hevican v Ruane28, where Mantell J held that a plaintiff who
identified his sons body at the mortuary was entitled to claim for
psychiatric illness although he was not present at the scene of the
accident or its aftermath.
Direct perception requires the claimant to perceive the event or its
aftermath by their own sight or hearing. Although simultaneous
broadcasts have not been ruled out, watching the event on
television such as in Alcock, was not equivalent to being within sight
and hearing of the event or its immediate aftermath.29 However, in
Ravenscroft v Rederiaktiebolaget Transatlantic30, a mother who
discovered that her son was dead upon arriving at the hospital was
entitled to claim, even though she hadnt seen her sons body. Lord
Wilberforce said in McLoughlin31 that these elements are inherent in
any claim, and are necessary limitations whereas Lord Bridge32
expressed concern about this approach freezing the law in a rigid
position and stressed the need for incrementalism.
Above all, the proximity requirements highlight inconsistencies and
double standards in the law, and are not a necessity, as the law
would gain clarity in their absence. Their purpose is to act as
effective constraints, but it can be argued that they are redundant
as it is possible for someone to suffer psychiatric illness without
28 Hevican v Ruane [1991] 3 All ER 65 (QB)
29 Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 (HL)
30 Ravenscroft v Rederiaktiebolaget AB Transatlantic [1992] 2 All ER
470 (CA)
31 McLoughlin v OBrian [1983] 1 AC 410 (HL)
32 McLoughlin v OBrian [1983] 1 AC 410 (HL)
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Shock requirement
Under the current law, psychiatric injury must be a result of sudden
shock; Lord Ackners definition of shock was the sudden
appreciation by sight or sound of a horrifying event, which violently
agitates the mind34 It is submitted that this is a narrow definition of
what constitutes shock, hence, utilizing this definition of shock
should be discontinued and replaced with a medically compatible
definition.
The LC proposed abandoning the shock requirement for a
recognizable psychiatric illness after presenting arguments for and
against retaining it35. In Sion v Hampstead Health Authority36, the
plaintiff was unable to claim for psychiatric illness caused by siting
at his sons bedside for two weeks watching his condition
deteriorate leading to death, because as the judges held, the death
was expected rather than surprising. The law should be evenhanded
and remove the shock requirement, and instead evaluate the
severity of the illness suffered in cases. This enables those suffering
as a result of gradual exposure to claim, and eradicates one of the
several double standards. Courts appear to have stuck with the
shock requirement solely as a policy requirement; there is no such
restriction in the case of physical injury and therefore this this
superfluous requirement should be abandoned.
Medical perspective
In Dickie v Flexthorne Glenrothes37, the difficulty of diagnosis was
recognized as each doctor had a different opinion, demonstrating
subjectivity in this area of the law from a medical perspective. In
Hevican38 and Ravenscroft39, judgments considered the medical
aspect by using diagnostic criteria including the DSM-IV-TR and ICD10, and although they are more scientifically consistent than before,
such manuals have been criticized for being vague and leading to
conflicting diagnoses. They are criticized as being culturally biased,
as some illnesses (Neurasthenia) exist in the ICD-10 but not in the
DSM-IV40. However, it is impossible to widen the scope of psychiatric
illness to the extent where each and every illness is accounted for
so the DSM-IV-TR and ICD-10, as the most internationally recognized
manuals will suffice momentarily to establish psychiatric causation.
It can be argued that considering cultural illnesses will open the
floodgates as plaintiffs can claim for less-known illnesses, as they
have to prove that they are suffering from a recognized illness.
Seeing as the law is so policy driven, this is unlikely to happen to
maintain restrictions. 41 The laws restrictive nature is demonstrated
in White, where Lord Steyn said that the law couldnt compensate
for all emotional suffering even if it is acute and truly debilitating4243.
Establishing a psycho-legal relationship44 is important, and in order
for this area of the law to develop it is crucial for judges and
37 Dickie v Flexthorne Glenrothes [2009] Scot (D) 3/11 (Sheriff
Court, Kircaldy, 4 Sep 2009) [129]
38 Hevican v Ruane [1991] 3 All ER 65 (QB)
39 Ravenscroft v Rederi AB Transatlantic [1992] 2 All ER 470 (CA)
40 B. Evengard, R.S. Schacterle, and A.L. Komaroff, Chronic fatigue
syndrome: new insights and old ignorance, [1999] 246 Journal of
Internal Medicine
41 Ravenscroft v Rederi AB Transatlantic [1992] 2 All ER 470 (CA)
42 White v Chief Constable of South Yorkshire [1992] 2 AC 455 (HL)
43 Rachael Mulheron, Rewriting the requirement for a recognized
psychiatric injury in negligence claims, [2012] 32 OJLS
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Bibliography
Primary Sources
Cases
McLoughlin v OBrian [1983] 1 AC 410 (HL)
Page v Smith [1996] AC 155 (HL)
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310
(HL)
Hevican v Ruane [1991] 3 All ER 65 (QB)
Ravenscroft v Rederi AB Transatlantic [1992] 2 All ER 470 (CA)
White v Chief Constable of South Yorkshire [1992] 2 AC 455
(HL)
McCarthy v Highland Council [2011] CSIH 51
Hegarty v EE Caledonia Ltd [1997] 2 Lloyds Rep. 259 (CA)
Frost v Chief Constable of South Yorkshire [1999] 2 AC 455
Young v Charles Church (Southern) Ltd [1998] 39 BMLR 146
(CA)
Jaensch v Coffey (1984) 33 SASR 255 (SC Australia)
W v Essex CC [2001] 2 AC 592 (HL)
Palmer v Tees HA [2000] 2 LGLR 69 (CA)
Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792
(CA)
Greatorex v Greatorex [2001] 1 WLR 1970
Sion v Hampstead Health Authority [1994] EWCA Civ 26
Bourhill v Young [1943] AC 92
Hunter v British Coal Corporation [1998] 2 All ER 97
Dickie v Flexthorne Glenrothes [2009] Scot (D) 3/11 (Sheriff
Court, Kircaldy, 4 Sep 2009) [129]
Secondary Sources
Books
M Lunney and K Oliphant, Tort Law: Text and Materials (4th
edn, OUP 2010)
11
1
2
Journals
Rachael Mulheron, Rewriting the requirement for a
recognized psychiatric injury in negligence claims, [2012]
32 OJLS
Harvey Teff, Liability for Psychiatric Illness: Advancing
Cautiously, [1998] 61 MLR
B. Evengard, R.S. Schacterle, and A.L. Komaroff, Chronic
fatigue syndrome: new insights and old ignorance, [1999] 246
Journal of Internal Medicine
Stephen Todd, Psychiatric injury and rescuers, [1999] 115
LQR
FA Trindade, Nervous shock and negligent conduct, [1996]
112 LQR
KJ Nasir, Nervous shock and Alcock: The Judicial Buck Stops
Here, [1992] 55 MLR
Harvey Teff, Liability for psychiatric illness after Hillsborough,
[1992] 12 OJLS
Paula Giliker, A New Head of Damages for Mental Distress in
the English Law of Torts, [2000] 20 Leg. Stud.
Harvey Teff, Liability for negligently inflicted psychiatric harm:
justifications and boundaries, [1998] 57 CLJ
Steve Hedley, Nervous shock: Wider still and wider, [1997]
56 CLJ
David Oughton and John Lowry, Liability to Bystanders for
Negligently Inflicted Psychiatric Harm, [1995] 46 NILQ
Basil Markesinis, Foreign Law Inspiring National Law, [2002]
61 CLJ
Nigel Eastman, Assessing for psychiatric injury and nervous
shock, [1995] Advances in Psychiatric Treatment (APT)
Michael A Jones, Liability for Psychiatric Illness More
Principle, Less Subtlety? , [1995] 4 Web Journal of Current
Legal Issues
Danuta Mendelson, The History of Damages for Psychiatric
Injury, [1997] 4:2 Psychiatry, Psychology and Law
Law Commission Reports
Law Commission, Liability for Psychiatric Illness (Law Com No
249, 1998)
Scottish Law Commission, Report on Damages for Psychiatric
Injury (Scot Law Com No 196, 2004)
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