LAW OF TORTS:

PSYCHIATRIC INJURY
 Objectives
At the end of the lecture students would be able to:
•Understand the distinction between personal injury and
psychiatric injury;
•Appreciate the difference between primary victim and
secondary victim;
•Apply the control mechanism in “Alcock’s” to establish a
secondary victim.

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 Structure

Introduction: Negligence actions for psychiatric

injury (or ‘nervous shock’)
1. The Claimant as Primary Victim
2. The Claimant as Secondary Victim
3. Policy limitations, exceptional cases and reform

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 Introduction

• WHAT IS PSYCHIATRIC INJURY?

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 Terminology

Terminology: ‘nervous shock’ and psychiatric injury the same thing

However, the assault on the mind must be sudden, hence the use of
the word “shock” in older cases.
‘Shock, in the context of this cause of action, involves the sudden
appreciation by sight or sound of a horrifying event, which violently
agitates the mind. It has yet to include psychiatric illness caused by
the accumulation over a period of time of more gradual assaults on the
nervous system.” (Lord Ackner in Alcock)

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 Psychiatric Injury cont….
• A psychiatric injury often arises out of a traumatic
experience. These injuries can result in Post Traumatic
Stress Disorder (PTSD), which is an emotional reaction to
extremely stressful or traumatic events. 
• Emotional trauma associated with psychiatric injury can
lead to physical problems and, in some cases, the thought
of suicidal actions. Psychological symptoms can vary but
usually leave a person unable to cope at work or in social
settings.

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 Introduction: Negligence actions relating to
psychiatric harm (or ‘nervous shock’)

Terminology: ‘nervous shock’ and psychiatric injury

What is actionable?

Mere grief or emotional distress is not enough

Psychiatric illness is required (e.g., Post-Traumatic Stress Disorder (PTSD)) -

see, e.g., Alcock’s case

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 The psychiatric injury must be a recognised medical
condition

“The common law gives no damages for the emotional distress which any
normal person experiences when someone he loves is killed or injured.
Anxiety and depression are normal human emotions. Yet an anxiety neurosis
or a reactive depression may be recognisable psychiatric illnesses, with or
without psychosomatic symptoms.” (Lord Bridge in McLoughlin v O’Brian)

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 The psychiatric injury must be a recognised medical
condition

“By nervous shock, I mean such an impact upon the mind or nervous system
as is recognised by modern medical science as capable of causing physical or
psychiatric illness. The ordinary emotions of anxiety, fear, grief or transient
shock are not conditions for which the law gives compensation.” (Lord
Jauncey in Page v Smith)

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 What is Psychiatric Illness?

• Hinz v Berry (1970)– Past morbid depression

• Brice v Brown (1984) – Hysterical personality disorder
• Frost v Chief Constable of South Yorkshire Police[1998] –
Post traumatic disorder
• Vernon v Brosley[1997] – Pathological grief disorder
• Page v Smith(1996) – Chronic fatigue syndrome

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 Hinz v Berry (1970)
• Mr and Mrs Hinz went for a day out with their family in a Bedford Dormobile.
They had four children of their own and fostered four other children. Mrs Hinz
was also pregnant with her fifth child. They stopped in a lay-by to have a picnic.
Mrs Hinz went across the road with one of the children to pick bluebells. Mr Hinz
was in the dormobile making tea with the other children. A jaguar car driven by
Mr Berry then came hurtling at speed. A tyre burst and the driver lost control and
smashed into the dormobile. Mrs Hinz witnessed the horrible scene. Her husband
died and the children were badly injured. As a consequence of this she became
morbidly depressed.
• Held:
She was entitled to recover as she had demonstrated a recognised psychiatric
condition as opposed to feelings of grief and sorrow.

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 Hinz’s Case cont……….
Lord Denning MR
•"In English law no damages are awarded for grief or sorrow
caused by a person's death. No damages are to be given for
the worry about the children, or for the financial strain or
stress, or the difficulties of adjusting to a new life. Damages
are, however, recoverable for nervous shock, or, to put it in
medical terms, for any recognisable psychiatric illness caused
by the breach of duty by the defendant."
defendant

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Brice v Brown [1984]
P was a woman of 42 and had had a hysterical personality
disorder for many years. P and her daughter were
passengers in a taxi involved in a collision; the daughter was
quite badly cut, but recovered.

P was not physically injured, but became very unstable

mentally. The judge said it was foreseeable that a person of
normal disposition and phlegm might have suffered some
psychological injury in the circumstances, so P was entitled to
claim for the full extent of her injuries.

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 Page v Smith(1996)

• P was physically uninjured in a minor road accident

caused by D's negligence, but a pre-existing mild
psychiatric condition (ME) had been aggravated by the
accident. Once the relevant duty of care is established,
said Lord Lloyd, and the shock results in some recognised
psychiatric illness, D is liable even if the illness takes a
rare form or is of unusual severity.

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 Vernon v Brosley[1997]
P's small children were being driven by their nanny D; through D's negligence
the car went into a river and the children were trapped, and P was present
while firemen tried unsuccessfully to save the children. P subsequently
suffered mental illness, brought on by the grief and bereavement.

Dismissing D's appeal from the decision of Sedley J, the Court of Appeal said
it was not necessary to discount P's damages by a "grief and distress" factor.
Once it was established that P had suffered an injury recognised by the law,
caused by D's breach of a duty of care she owed him, P should recover
damages for the injury he sustained.

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• Expert medical evidence is required to establish that
a claimant has suffered a recognisable psychiatric
illness.

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 Introduction: Negligence actions relating to
psychiatric harm (or ‘nervous shock’)

The distinction between primary and secondary victims

Statements in almost all the cases – for example:

“… those who are involved in an accident [are] primary victims, and …

those who are not directly involved, but who suffer from what they see or
hear, [are] secondary victims. This is, in my opinion, the most convenient
and appropriate terminology.

Lord Lloyd, Page v Smith (1996) (HL)

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 The claimant as primary victim
Claimant physically injured

Claimant directly involved in an accident and suffered foreseeable physical

injury and then psychiatric injury following the accident.

Claimant not physically injured but was in danger of physical

injury

Dulieu v White (1901) (CA)

Ct allowed recovery for the claimant when a horse van burst into a
pub where the claimant was working, even though she suffered
no actual physical injury but was in the range of potential impact.
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HOL reaffirmed the above in Page v
Smith (1996)

“Since the defendant was admittedly under a duty

of care not to cause the plaintiff foreseeable
physical injury, it was unnecessary to ask whether
he was under a separate duty of care not to cause
foreseeable psychiatric injury.” (Lord Lloyd)

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 Page v Smith (1996) 3 All ER 272

• Mr Page, was involved in a minor car accident, and was

physically unhurt in the collision. However the crash did
result in a recurrence of myalgic encephalomyelitis
(Chronic fatigue syndrome) from which he had suffered
for 20 years but was then lessening. The defendant
admitted that he had been negligent, but said he was not
liable for the psychiatric damage as it was unforeseeable
and therefore not recoverable as a head of damage.

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 Page v Smith
• The courts held that Mr Page was a primary (direct) victim of
the accident, since he was directly involved in it and risked
personal injury. Therefore, no issues of foreseeability of
psychiatric shock needed to be considered: psychiatric shock
was to be treated as direct personal injury.

• Note: This case is to be distinguished from cases of secondary

victims, such as spectators and rescuers, where the requirements
of proximity and foreseeability were essential to establish the
duty of care.
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 Introduction: Negligence actions relating to
psychiatric harm (or ‘nervous shock’)

Page v Smith (1996) (HL): Lord Lloyd

“A further control mechanism is that the secondary victim will only recover
damages for nervous shock if the defendant should have foreseen injury by
shock to a person of normal fortitude or "ordinary phlegm“. … [This is not]
required in the case of a primary victim. … In the case of physical injury
there is no such requirement. The negligent defendant, or more usually his
insurer, takes his victim as he finds him. The same should apply in the case
of psychiatric injury.”

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 Approach based on Page v Smith

• In all cases should be whether the def can reasonably

forsee that his conduct will expose the Pl to the risk of
Personal Injury, whether physical/psychiatric.
• If Yes – Duty of Care is established even if personal injury
does not occur.

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 Introduction: Negligence actions relating to
psychiatric harm (or ‘nervous shock’)
Susceptibility to psychiatric injury

Bourhill v Young (1943) (HL): “must generally depend

on a normal standard of susceptibility”

McLouhglin v O’Brian (1983) (HL): “persons must be

assumed to be possessed of fortitude sufficient to enable
them to endure the calamities of modern life”

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 Bourhill v Young

John Young, a motorcyclist, was driving at high speed down a road in

Edinburgh when he collided with a car and died.
An eight months pregnant, Mrs. Bourhill, unloading her basket on the
opposite side of a tram, heard the noise and suffered nervous shock.
When her child was stillborn a month later, she claimed that the
accident had been responsible.

In order to succeed in her claim, Mrs Bourhill had to establish a

duty of care had been owed to her by Mr Young. To find such a duty, the
claimant must be foreseeable, or proximate to the scene of the
accident. The HOL denied that Mrs Bourhill had been foreseeable to Mr
Young, at the time of the accident.

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 Bourhill v Young
Lord Russell stated:
“ Can it be said that John Young could reasonably have anticipated that a
person, situated as was the appellant, would be affected by his
proceeding towards Colinton at the speed at which he was travelling? I
think not. His road was clear of pedestrians. The appellant was not within
his vision, but was standing behind the solid barrier of the tramcar. His
speed in no way endangered her. In these circumstances I am unable to
see how he could reasonably anticipate that, if he came into collision
with a vehicle coming across the tramcar into Glenlockhart Road, the
resultant noise would cause physical injury by shock to a person standing
behind the tramcar. In my opinion, he owed no duty to the appellant, and
was, therefore, not guilty of any negligence in relation to her.

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 McLouhglin v O’Brian (1983)

• A friend came to the claimant's (plaintiff's) house to tell

her of a serious accident involving her husband and three
children, two hours after it had occurred. He drove her to
the hospital where she saw her daughter dead and her
husband and two other children seriously injured, all still
covered in oil and mud. She suffered serious nervous
shock as a result and sued the D who was responsible for
the accident.

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 McLouhglin v O’Brian (1983)

• HOL - To recover nervous shock for somebody who was

not directly involved in the accident, there had to be a
close relationship between the plaintiff and the accident's
victims. Furthermore, the plaintiff was to be in close
proximity to the accident in time and place.
• This was held to be the case here: witnessing her dead
daughter and badly injured family was for Mrs
McLoughlin equivalent to being in the immediate
aftermath of the disaster which had happened to them.
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 Introduction: Negligence actions relating to
psychiatric harm (or ‘nervous shock’)
Susceptibility to psychiatric injury
 Duty of care and foreseeability of psychiatric injury: the person of ordinary
fortitude
 Remoteness of damage and ‘the eggshell skull rule’: take the victim as you
find them

Put simply, if it is foreseeable that an ordinary person could suffer injury then
there will usually be a duty owed. (In the absence of a defendant’s specific
knowledge) the question is not whether injury to an especially susceptible
person is foreseeable.
However, if, due to their particular susceptibility, the claimant has suffered injury
greater than one would expect, then the defendant will be liable for the full
extent of the injuries because you take the victim as you find them.
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 The claimant as primary victim

An update to Page v Smith: see Johnson v NEI

International Combustion Ltd [2007] UKHL 39

 Several claimants were exposed to asbestos & developed pleural

plagues. It was claimed that this might lead to an asbestos
related disease and the claimant suffered anxiety because of the
possibility.

 CA: there’s no liability for causing ”anxiety” even in primary victim

cases, saying “anxiety” is a form of psychiatric prejudice that is
less serious than one of the recognised forms of psychiatric injury.
The law does not recognise a duty to take reasonable care not to
cause “anxiety”.
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• HOL: The Page v Smith principle survives but is interpreted
restrictively. There were different expressions of this restrictive
interpretation but, in essence, the principle will apply only
where psychiatric injury is “an immediate response to a past
event” (Lord Rodger) or results “from involvement in an
accident caused by the defendant's negligence or its
immediate aftermath” (Lord Hope) such as a car accident. It
seems it will not apply to cases where the psychiatric injury
occurs “because of something [the claimant] may experience in
the future as a result of the defendant's past negligence” (Lord
Hope) such as the fear of developing mesothelioma.

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 Malaysian Case
• Thiruvannamali a/l Alagirisami Pillai lwn Diner Club [2007] 1
AMR 700
• The Pl, a medical doctor, was a member of Diners Club
credit card. Due to a mistake on the part of the defendant, a
condolence letter was sent to the Pl’s wife informing her of
his death. The Pl sued the def for shock, fear and mental
anguish.

• Ct: Denied the Pl’s claim . Although the Pl’s discomfort and
anger at the misinformation about the Pl’s death was
acknowledged but ordinary emotions of anxiety is not
recognised as psychiatric illness. 32
 The Claimant as Secondary Victim

Claimant not physically injured and was not in danger of physical

injury

McLoughlin v O’Brian (1982) (HL)

Alcock v Chief Constable of South Yorkshire (1991) (HL)

White v Chief Constable of South Yorkshire (1999) (HL)

Foreseeability and ‘control mechanisms’ (or ‘control devices’)

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 The Claimant as Secondary Victim

The distinction between primary and secondary victims

White v Chief Constable of South Yorkshire (1999) (HL)

Lord Steyn summarises the position in Page v Smith :

“Lord Lloyd said that a plaintiff who had been within the range of
foreseeable injury was a primary victim. …”

“In my view it follows that all other victims, who suffer pure
psychiatric harm, are secondary victims and must satisfy the control
mechanisms laid down in Alcock’s case.”

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Alcock v Chief Constable of South Yorkshire [1992]
4 All ER 907

 Brief facts:
 At the start of a football match police allowed a large crowd
of supporters into a caged pen as the result of which 95
people in the stand suffered crush injuries and were killed.
Since the match was being televised much of the disaster was
shown on live television. A no of claims for nervous shock
were made. These varied between those present and not
present at the scene, those with close family ties to the dead
and those who were merely friends.
 HOL: refused all of the claims and identified the factors to be
considered in determining whether a party might recover.
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 The Claimant as Secondary Victim

Alcock v Chief Constable of South Yorkshire (1991) (HL)

Lord Ackner:

“Because ‘shock’ in its nature is capable of affecting such

a wide range of persons, Lord Wilberforce in McLoughlin
v O’Brian concluded that there was a real need for the
law to place some limitation upon the extent of
admissible claims and in this context he considered that
there were three elements inherent in any claim. …
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 The claimant as secondary victim
Alcock v Chief Constable of South Yorkshire (1991) (HL)

Lord Ackner:

“… On behalf of the chief constable it is contended that

these elements operate as a control or limitation on the
mere application of the reasonable foreseeability test.…
The three elements are: (1) the class of persons whose
claims should be recognised; (2) the proximity of such
persons to the accident – in time and space; (3) the
means by which the shock has been caused.”
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 The claimant as secondary victim
(1) “the class of persons whose claims should be recognised”

Lord Keith: “I would not seek to limit the class by reference to

particular relationships such as husband and wife or parent and
child. The kinds of relationship which may involve close ties of
love and affection are numerous, and it is the existence of such
ties which leads to mental disturbance when the loved one
suffers a catastrophe. … The closeness of the tie would,
however, require to be proved by a plaintiff, though no doubt
being capable of being presumed in appropriate cases.
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 The claimant as secondary victim

“the class of persons whose claims should be recognised”

Lord Ackner: “[T]the justification for admitting such claims is the presumption,
which I would accept as being rebuttable, that the love and affection normally
associated with persons in those relationships is such that a defendant ought
reasonably to contemplate that they may be so closely and directly affected by his
conduct as to suffer shock resulting in psychiatric illness. While as a generalisation
more remote relatives and, a fortiori, friends, can reasonably be expected not to
suffer illness from the shock, there can well be relatives and friends whose
relationship is so close and intimate that their love and affection for the victim is
comparable to that of the normal parent, spouse or child of the victim and should
for the purpose of this cause of action be so treated.
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 The claimant as secondary victim
“the class of persons whose claims should be recognised”

Lord Keith: “Brian Harrison lost two brothers … Robert Alcock lost a brother-in-law and
identified the body at the mortuary at midnight. [But there was no] evidence of particularly close
ties of love or affection with the [deceased]. [T]he mere fact of the particular relationship was
insufficient to place the plaintiff within the class of persons to whom a duty of care could be
owed by the defendant as being foreseeably at risk of psychiatric illness by reason of injury or
peril to the individuals concerned. The same is true of other plaintiffs who were not present at
the ground and who lost brothers, or in one case a grandson. I would, however, place in the
category to members of which risk of psychiatric illness was reasonably foreseeable Mr. and Mrs.
Copoc, whose son was killed, and Alexandra Penk, who lost her fiancé. In each of these cases the
closest ties of love and affection fall to be presumed from the fact of the particular
relationship, and there is no suggestion of anything which might tend to rebut that
presumption.”

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 The claimant as secondary victim
(2) “the proximity of such persons to the accident – in time and space”

Lord Ackner: “[P]roximity to the accident must be close both in time and space.
Direct and immediate sight or bearing of the accident is not required. It is reasonably
foreseeable that injury by shock can be caused to a plaintiff, not
only through the sight or hearing of the event, but of its immediate aftermath.”
(emphasis added).

• McLoughlin – 2 hours – “was described by Lord Wilberforce as being upon the

margin”

• Alcock – 8 hours – “not sufficient proximity in time and space to the accident”
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 The claimant as secondary victim

(3) “the means by which the shock has been caused”

Lord Ackner: “Lord Wilberforce [in Page v Smith] concluded that the shock
must come through sight or hearing of the event or its immediate aftermath
but specifically left for later consideration whether some equivalent of sight
or hearing, e. g. through simultaneous television, would suffice. …
[S]imultaneous broadcasts of a disaster cannot in all cases be ruled out as
providing the equivalent of the actual sight or hearing of the event or its
immediate aftermath.”

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 The claimant as secondary victim
“the means by which the shock has been caused”

Lord Keith: “Mr. and Mrs. Copoc, whose son was killed, and Alexandra Penk, who
lost her fiancé … all watched [scenes] on television, but none of these depicted
suffering of recognisable individuals …. In my opinion the viewing of these
scenes cannot be equiparated with the viewer being within ‘sight or hearing of
the event or of its immediate aftermath’…. They were capable of giving rise to
anxiety for the safety of relatives known or believed to be present in the area
affected by the crush, and undoubtedly did so, but that is very different from
seeing the fate of the relative or his condition shortly after the event.”

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 The claimant as secondary victim
The law in light of Alcock’s case?

• Primary victims

• Secondary victims

Next question:

• What is the position of rescuers?

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• Prior toWhat is thetended
1999, courts position ofrescuers
to treat rescuerswho?
suffered psychiatric injuries as primary victims even if they
were never in physical danger.

• See:-
• Chadwick v British Railways Board [1967] 1 WLR 912
• Hale v London Underground [1992]

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Chadwick v British Railways Board

• C assisted at Lewisham train crash in 1957. 2 trains collided under

a bridge and compressed the wreckage. C a fairly small man
asked to crawl into the wreckage and assist the injured. C
suffered psychiatric injury as a result.

• Ct did not deprive him of his claim for psychiatric injury.

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 Hale v Underground

• A fireman who had been involved in the rescue of victims at the

King’s Cross fire suffered from Post-Traumatic Stress Disorder
and recovered damages for nervous shock

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 Current position of Rescuers
• White v Chief Constable of South Yorkshire (1999) HOL
• Brief facts:
• C’s were police officers who claimed damages for
psychiatric illness resulting from their involvement in the
Hills borough disaster in wh many died/seriously injured.
5 out of 6 claimants assisted the injured and the 6th
claimant was on duty at the mortuary.
• Note: None of the officers were exposed to any physical
injury.

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• White v Chief Constable of South Yorkshire [1999] at 48 per
Lord Hoffman:
• “ I have no doubt that most people would regard it as wrong to award
compensation for psychiatric injury to the professionals and deny
compensation for similar injury to the relatives…It seems to be that in this
area of the law, the search for principles was called off in Alcock v Chief
Constable of South Yorkshire. No one can pretend that the existing law,
which your Lordships have to accept is founded upon principle…
Consequently your Lordships are now engaged, not in the bold
development of principle, but in a practical attempt, under adverse
conditions, to preserve the general perception of the law as a system of
rules which is fair between one citizen and another.”
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 The claimant as secondary victim
What is the position of rescuers?
White v Chief Constable of South Yorkshire (1999) (HL)

• Not in zone of danger of physical injury – not primary victims

• As secondary victim – must satisfy Alcock’s control mechanism.

Lord Hoffman: “Should then your Lordships take the incremental step of extending
liability for psychiatric injury to "rescuers" (a class which would now require
definition) who give assistance at or after some disaster without coming within the
range of foreseeable physical injury?”

The answer was “no”.

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 Policy limitations, some exceptional
cases and reform
Family members
Greatorex v Greatorex [2000] 4 All ER 769
A father who was also the rescuer fire-officer, suffered
psychiatric illness as a result of rescue work involving his son,
who was injured in a road accident caused by the son’s own
negligent driving.
Held: Ct dismissed his claim because of the conflict that it would
cause, i.e undesirable litigation within family members. Where one family
member suffered psychiatric illness as a result of self-inflicted injuries of
another family member, the psychiatric illness in itself might have an
adverse effect upon family relationships which the law should be astute
not to exacerbate by allowing litigation between those family members.
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• Damage to property
• Attia v British Gas [1988] QB 304, CA
• C suffered psychiatric illness due to witnessing a fire
which destroyed her house due to negligence of the
def in installing central heating
• CA: Claim for psychiatric illness forseeable in light of
all the circumstances.
• Note: This case was decided before Alcock’s. Now it is
best understood as a case where there is a pre-existing
contractual relationship between C and Def
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Involuntary participants
Cases where the negligence of another causes the
claimant to cause physical injury to another thereby
causing the former psychiatric injury.
See Dooley v Cammell Laird & Co [1951] 1 Lloyd Rep 271
A crane operator whose crane, due to a fault, dropped its load
towards fellow workers was owed a duty of care in respect of
psychiatric injury.
Pl was close to the accident in time and space and witnessed it
with his own unaided senses.

(Note: In Alcock’s this category of cases described as

“harm to participants” and treated as primary victims) 53
 Flexibility in the meaning of “Secondary Victim”
See: W v Essex County Council (2000) (HL)
The Pl who had 4 young children were adolescent foster carers. They
told the def (local council) that they would not accept any child who
was a known or suspected sexual abuser. Def placed with the Pl, a 15
yr old boy (G) who was being investigated for alleged rape. These
facts were known to the Def but were not communicated to Pls. G
committed sexual abuse on Pls children. Pls sued Def in negligence
and claimed they had suffered psychiatric illness, including severe
depression and post-traumatic stress disorder after learning of the
abuse.
HOL: In allowing the appeal found that Pl need not necessarily
be categorised as secondary victims ( who had to satisfy the
“immediate aftermath” test). The test has to be assessed in the 54

particular factual situation.

• at page 243 Per Lord Slynn:

• “….the categorisation of those claiming to be

included as primary or secondary victims is not as
I read the cases finally closed. It is a concept still
to be developed in different factual
situations………”
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 Policy limitations, exceptional cases and reform

Law Commission Report, Liability for Psychiatric Illness, Law Com No 249
(1998)

“…there should be legislation laying down that a plaintiff, who suffers a

reasonably foreseeable recognisable psychiatric illness as a result of the
death, injury or imperilment of a person with whom he or she has a close tie
of love and affection, should be entitled to recover damages from the
negligent defendant in respect of that illness, regardless of the plaintiff’s
closeness (in time and space) to the accident or its aftermath or the means
by which the plaintiff learns of it.”

“Fixed list of relationships”

Note: After almost 10 years the Government finally rejected the need for
reform in 2007.
56
 The state of the law?

White v Chief Constable of South Yorkshire (1999) (HL)

Lord Hoffman: “It seems to me that in this area of the law, the search for
principle was called off in Alcock v Chief Constable of South Yorkshire. No one can
pretend that the existing law, which your Lordships have to accept, is founded
upon principle….Consequently your Lordships are now engaged, not in the bold
development of principle, but in a practical attempt, under adverse conditions,
to preserve the general perception of the law as a system of rules which is fair
between one citizen and another.

57
 Summary of Main Points

• Distinction between Primary and Secondary Victims

• Secondary Victims – need to establish principles in
Alcock’s :
• Close relationship
• Proximity in time and space
• means

• Position of rescuers – no exemption

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 Essay Question
• In what circumstances can a claimant
recover damages for psychiatric damage
caused by negligence?

• How satisfactory do you consider this

branch of the law to be?

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 Next lecture

Defences to negligence

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