INTRODUCTION

This short paper examines the position of law on liability for injury caused through
the medium of an eye or ear. It establishes three rules that govern the resolution of
claims of Psychiatric injuries. The first is that, the injury must be caused through
seeing or hearing of the injurious event. Secondly, the mental injury suffered should
amount to Psychiatric illness. Last but not the list, the injury suffered should come as
a reaction to an event not as a grief to any event.

INJURY CAUSED THROUGH THE MEDIUM OF THE EYES OR EARS

(Psychiatric injury)
Psychiatric injury is a form of personal injury. In other words, it is regarded in law as
another type of harm to the person. 1 There are mainly two types of psychiatric injury
in the law of tort.

CAUSING NERVOUS SHOCK INTENTIONALLY

This is causing other people to suffer nervous shock as was established in Wilkinson
V Downton (1897)2 which is caused intentionally. That is a willful act or statement
calculated to cause physical harm to another person. The facts of the case above
were that, the defendant told the plaintiff by way of practical joke that the plaintiff’s
husband had been seriously injured in an accident. The plaintiff suffered nervous
shock amounting to illness. The case was treated as one of first impressions. The
judge found that this was a conduct that was purely deliberate, unjustified and
mischievous. However, as the law stood then, damages were not recoverable for

1
W. V. H. Rogers (2006) (17th Ed) Winfield and Jolowicz on Tort. London: Sweet and Maxwell.
2
Wilkinson V Downton (1897) 2 QB 57.
negligently inflicted nervous shock. However, in this case, the remedy was granted
on the basis that the conduct went beyond negligence.

CAUSING NERVOUS SHOCK BY NEGLIGENCE

The second category of psychiatric injuries involves those nervous shock injuries
that are inflicted negligently. It is worth noting that previously it was held that mental
injury which is not accompanied by physical injury was not compensable at all.
However, this is no longer the law today for both intentional and negligent
wrongdoing.3 However, it is still the law that, the sensations of fear or mental distress
or grief suffered as a result of negligence do not in themselves give rise to a cause of
action.4 Even then, the position in the case of the intentional torts actionable per se
because damages are then said to be at large. For instance, in a case of libel, the
award of damages will reflect the distress suffered by the claimant at the publication. 5
In the case of false arrest the damages may be aggravated by the distress suffered
by the claimant because the high-handed treatment of him/her, Calvely V CC Mersey
side.

When it comes to liability in the tort of negligence that causes psychiatric injuries, the
easiest case is that in which the claimant suffers shock from reasonable fear for his
own safety caused by the defendant’s negligence. This was demonstrated in the
case of Dulieu V White (1901). 6 In this case the claimant succeeded in a claim for
shock resulting in a miscarriage when a horse-drawn van was negligently driven into
the bar of a public house where she was saving. What this means is that, the
claimant should not necessarily be in danger, but provided he/she reasonably

3
W. V. H. Rogers (2006)
4
R. F. V. Heuston (1973)(16th Ed) SOLMOND on the Law of Torts. London: Sweet Maxwell
5
Ibid.
6
Dulieu V White (1901) 2 K.B. 669.
believes they are in danger.7 However, if the fear is not reasonably entertained, there
is no action for instance, if a claimant has a hysterical personality who suffers shock
from the noise of a collision on the other side of the street Mcfarlane V E.E.
Caledonia ltd (1994).8 The situation above describes a claimant who is the primary
victim of the psychiatric injury.

On the other hand, the law may not be so simple to apply in a case of a claimant
who was a witness of a danger to others. For instance, if A’s negligence puts B in
danger of injury and C who is not injured or in danger of being injured suffers shock
as a result of the incident, here the starting point is a clear assumption that there is a
real need for the law to place some limitation going beyond reasonable
foreseeability.9 The leading authority in this aspect is the case Alcock V CC South
Yorkshire (1992).10 Three limitations to the rule of liability in the tort of psychiatric
injury were applied in this case. The first limitation is to look at the class of persons
whose claims should be recognized. Secondly, the proximity of those persons to the
accident time and space, and thirdly, the means by which the trauma to the claimant
is caused.

The facts of the case above were that, 10 people had suffered psychiatric injury as a
result of the disaster in 1989 at Hillsborough stadium in Sheffield, in which as a result
of the admitted negligence of the defendants, some 95 people were crushed to death
and over 48 others physically injured. None of the 10 people who suffered
psychiatric injury suffered any physical injury, nor been in any danger. In fact most of
them were not even at the ground at the time of the accident though most of them
saw part of the events on television. Their case was dismissed by the House of
7
Brazier, M., (1993) Street on Torts. London: Buterworths.
8
Mcfarlane V E.E. Caledonia ltd (1994). 2 All ER1.
9
Hepple, B.A., and Matthews H. M., (1996) Tort: Cases and Material. London: Butterworths.
10
Alcock V CC South Yorkshire (1992) 1 AC 310.
Lords. Referring to the first limitation, the House of Lords rejected the idea that this
limitation can be used arbitrarily. Lord Keith pointed out that the kind of relationship
which may involve close ties of love and affection are many. It is the existence of
such ties that can lead to mental disturbance when the beloved one suffers a
catastrophe. He further said that, such ties may be present in family relationships or
those of close friendship and may even be stronger in the case of engaged couples
than in other relationships.11 What they were trying to get at was to find out whether
there is sufficient close relationship of love and affection between the claimant and
the persons injured which can be subjected to limitation (qualification). For instance,
sufficiently close relationship such as the one that can be found between parents
and children, husband and wife or even that which can be found between engaged
couples. In this principle, the claims of remoter relatives will be scrutinized with care.
What this means in that, those falling outside the narrow category have to show a
relationship which is more intense than the usual. 12 This means that, a mere
bystander will not be able to sue.

This law reflects what was once said by Lord Porter in a case Bourhill V Young
(1943)13 where it was held that the driver of a car is right to assume that the ordinary
frequenter of the streets has sufficient courage to endure such incidents as may from
time to time be expected to occur in them. This include the noise of a collision and
the sight of injured people when such incidents happens, it can not be said of the
driver as negligent towards one who does not possess the customary Phlegm.

Concerning the second limitation, what is meant by the proximity of the person to the
accident is in terms of time and place to the event leading to the injury. 14 However,
11
W. V. H. Rogers (2006) (17th Ed) Winfield and Jolowicz on Tort
12
Ibid.
13
Bourhill V Young (1983) A. C. 92.
14
R. F. V. Heuston (1973)(16th Ed) SOLMOND on the Law of Torts.
there is considerable extension of this to include the immediate aftermath of the
event. In Mcloughin V O’Brian (1983) 15 the extension of the time and space was
applied. The facts of the case where that, a road accident caused by a negligent
driver killed the claimant’s young daughter and injured several of her children and
her husband with varying degrees. At the time of the accident, the claimant was at
home two miles away. She learned of the accident two hours later through a friend
who drove her to the hospital where she was informed about the death and saw the
injuries to some members of her family. When upholding her claims, the House of
Lords held that, the circumstance in which she found her family members were
capable of producing an effect going well beyond grief and sorrow.

The third limitation requires that the means by which the injury is caused must be
through the sight or hearing of the event or its aftermath. 16 What this means is that,
notification of such an event by third parties will not hold. This includes newspaper
and broadcast reports. However, in the Alcock case that we have already referred to
above, the House of Lords felt that somehow there can be a possibility of liability
where the mental injury was induced by contemporaneous television transmission of
the incident.17 Two of the Lords in this case held that the television transmission
showing the developing chaos in the stadium had provided the framework in which
the fear of the claimants for their loved ones developed. However, it was only
dismissed on the ground that, it did not show suffering of identifiable individuals;
therefore, it lacked the immediacy necessary to found a claim.

CONCLUSION

15
Mcloughin V O’Brian (1983) 1 A.C. 410.
16
R. F. V. Heuston (1973).
17
Ibid.
In conclusion, we can say that the position of the law in so far as liability for injury
caused through the medium of the eyes or ears is concerned can be found in three
rules that we have discussed exhaustibly above. The first is that, the injury must be
caused by the sudden appreciation by sight (eye) or sound (ears) of horrifying event
which violently agitated the mind.

Secondly, mental injury can only give rise to a cause of action if it can be said to
have produced psychiatric illness.

Thirdly, that there can be no recovery even if there is illness, if such an illness is a
result of grief at the death of the loved one, rather than a reaction to the event
causing death. However, to determine whether one has suffered from post-traumatic
stress disorder which stands in law or suffered pathological grief disorder which does
not stand in law call for a great effort by the court to distinguish between the two
 REFERENCES
BOOKS

W. V. H. Rogers (2006) (17th Ed) Winfield and Jolowicz on Tort. London: Sweet and
Maxwell.

R. F. V. Heuston (1973)(16th Ed) SOLMOND on the Law of Torts. London: Sweet

Maxwell

Hepple, B.A., and Matthews H. M., (1996) Tort: Cases and Material. London:
Butterworths.

Brazier, M., (1993) Street on Torts. London: Buterworths.

CASES
Dulieu V White (1901) 2 K.B. 669.

Mcfarlane V E.E. Caledonia ltd (1994). 2 All ER1.

Alcock V CC South Yorkshire (1992) 1 AC 310.

Bourhill V Young (1983) A. C. 92.

Mcloughin V O’Brian (1983) 1 A.C. 410.

Wilkinson V Downton (1897) 2 QB 57.