(ii) Secondary Victims
It was established that secondary victims could only claim for psychiatric injury in very limited circumstances as they have to overcome additional hurdles which are not faced by a primary victim.[33] Alcock[34] taking into account the issue of public policy has introduced a threefold 'control mechanisms' whereby the secondary victims could only recover if they could overcome the three restrictions so as to establish that they were foreseeable victims of psychiatric injury.[35]
(a) The relationship between the claimant and the primary victim
The Alcock[36] restrictions provides for three types of qualifying "proximity". The first is the proximity of relationship, where the claimant would have to establish that there is a close tie of love and affection with one or more of the primary victims.[37]
Alcock[38] explained and defined the crucial factor in ascertaining who has a tie of love and affection but rejected the simplistic approach to “draw any dividing line between one degree of relationship and another” as to who may and may not recover.[39] Alcock[40] suggested that a rebuttable presumption arose in favour of a close tie of love and affection in the case of spousal and parental relationships.
If the relationship is not one that raises the presumption, the tie could be established by evidence. The closeness of the tie would require to be proved and “the proper approach is to examine each case on its own facts in order to see whether the claimant has established so close a relationship of love and affection to the victim as might reasonably be expected in the case of spouses or parents and children”.[41]
This approach provides an element of flexibility to deal with particular circumstances and provide more flexibility in succeeding claim. However, there were arguments that the difficulty of predicting the outcome of litigation in this area has led to a huge number of cases reaching the courts since Alcock was decided.[42]
Law Commission in their report recommended that there should be a statutory list of those who would be deemed to give rise to an irrebuttable presumption that the relationship is close enough to result in the psychiatric injury. This list would comprise spouse, parent, child, sibling, and cohabitant of two years or more (including homosexual cohabitants). Claimants excluded from these categories would be required to prove that a close tie of love and affection existed. The Commission's view was that the requirement for people to prove a close tie of love and affection with the immediate victim would meet the need to impose a limit.[43]
However, this does not amount to a full limitation as there are still substantial numbers of people who would be eligible to claim. This would lead to a significant increase in insurance premiums. There will also be difficult issues on proving a close tie where a spouse has been separated for several years or brothers and sisters have lost touch.[44]
(b) Proximity in time and space
The second restriction is concerned with the claimant’s proximity to the happening event. Lord Ackner explained in Alcock[45] that:
"…proximity to the accident must be close both in time and space. Direct and immediate sight or hearing of the accident is not required … injury by shock can be caused to a plaintiff, not only through the sight or hearing of the event, but of its immediate aftermath."[46]
Lord Wilberforce continued by saying that:
“… under … the ‘aftermath’ doctrine, one who from close proximity, comes very soon upon the scene should not be excluded.”[47]
Psychiatric injury may thus be caused by either the direct perception of the accident or its immediate aftermath. In Alcock[48], some eight hours after the events could not be described as the “immediate aftermath”.
However, it has been conceded that proximity is only a factual requirement for liability based on common sense.[49] The courts by adopting the ‘reasonable foreseeability approach’ and ‘policy-based proximity approach’ has allowed a series of claims to be assessed on their own merits.[50] This helps to avoid arbitrary rigidity as individual with deserving cases would succeed.[51] In North Glamorgan NHS Trust v Walters[52] it was established that an event can be made up of a number of components. Latham LJ in Atkinson v Seghal [53] said that "provided that the events alleged to constitute the aftermath retain sufficient proximity to the event", the claimant can claim. In Farrell v Merton, Sutton and Wandsworth HA[54], it was held that a mother who did not see her severely damage infant for 24 hours after the birth could nonetheless succeed in her claim for psychiatric injury.
The Law Commission Report in 1998 had recommended for the abandonment of the requirement that a claimant should be physically and temporally close to the traumatic event[55] as it seemed to produce arbitrary and unjust results. [56] It has been argued that “close temporal connection” does not necessarily heighten the risk of suffering psychiatric injury.[57] The concept of “immediate aftermath” is also seen to produce arbitrary results since it is difficult to draw a line on the range of the aftermath.[58] “It cannot be asserted that the trauma of viewing a dead child is any less horrific after eight or nine hours than two.”[59]
(c) Proximity of Perception
Alcock[60] has also provided that the event must be perceived through the claimant's own unaided senses.[61] This test therefore excludes shock caused by being informed by third party of the death of a loved one.[62] In Tan v East London and City Health Authority[63], it was established that merely being informed of the incident by a third party was not sufficiently proximate.
However, it is argued that “the fact that trauma is orally induced should not be considered as trivialising its impact, or operate to defeat claims based on it”. Mullany observed that “oral (or written) communication can be equally devastating for the most steadfast of minds” and insistence on unaided senses is therefore “an affront to all reasonable, compassionate and right thinking members of contemporary society and an embarrassment to the common law”. [64] In Coates v. Government Insurance Office of New South Wales[65], Deane J:
“… hearing by telephone, or by later oral message, can… be just as foreseeable and just as directly related … as if the vulnerable observer had received the shocking perception by his or her own eyes and ears...”[66]
In fact, ‘there is medical support for the view that, in some circumstances, hearing of the loss of a loved one in an accident could prompt an even strong reaction than seeing it … constructing an image of the event even more gruesome than the reality’.[67]
In Alcock[68], it was established that it is generally impossible to recover damages for nervous shock suffered as a result of witnessing events on the television as the Broadcasting Code of Ethics prohibits those shots depicting the suffering of recognisable individuals.[69] It is said that the viewing of such scenes on television could not be compared with the viewer being within 'sight or hearing of the event or its immediate aftermath'.[70]
However, it has been contended that there is possibility that witnessing the traumatic events on the television could caused distress and anxiety that subsequently contributed to the psychiatric damage suffered.[71] There seems to be no reasons for distinguishing between those who perceived the events unaided, and those who watched television, and suffered “grave concern and worry, followed by a dawning consciousness over an extended period that the imagined consequence had occurred, finally confirmed by news of the death and, in some cases, subsequent visual identification” [72] as it is extremely rare for the initial transitory feelings normally experienced when a traumatic event is perceived to cause psychiatric damage. [73]
(d) Sudden Shock
Lord Ackner in the Alcock[74] case provided that there would be no claim for the claimant “if the psychiatric injury was not induced by shock.”[75] “Shock” in his words referred to “the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.”[76] Therefore, the secondary victim must prove that the traumatic event have the essential qualities of 'shockingness' and 'impact', capable of causing a person of 'normal fortitude' to be shocked by it.[77]
Lord Ackner went on to add that shock does not “include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system"[78]. This reasoning was followed by Gibson LJ in Sion Hampstead HA[79]. Therefore, a person may not claim for nervous shock where they cared for a dying person after an accident and suffered psychiatric illness.[80]
However, as the law is still developing, this requirement has been watered down by subsequent cases, especially where the psychiatric injury does not derive from an accident-type scenario.[81] In North Glamorgan NHS Trust[82], the mother who witnessed the last 36hrs of her baby’s life to its death was regarded as one ‘horrifying event’ and was not the result of the ‘gradual assaults on the mind’. In Schedule 2 Claimants v Medical Research Council and Secretary of State for Health[83], Morland J held that, in relation to CJD cases, there should be no constraint of time limit to a period contemporaneous with, or almost contemporaneous with, the negligent event so as to give rise to sudden shock.
These decisions clearly shows that the courts are prepared to extend the basis of the law laid down in Alcock[84] by determining the extent to which the restrictions should be imposed on liability for psychiatric injury.[85] In Frost v Chief Constable of South Yorkshire Police [86] it is submitted that if such an “extension” is bound to claimants “closely and directly affected” by the defendant's act, it would not add disproportionately to the incidence of liability. In Jaensch v Coffey[87], Deane J said that this refers to those whom psychiatric disorder has resulted, “from the impact of matters which themselves formed part of the accident and its aftermath”.
Nevertheless, the shock requirement does have its advantages as it enables the causation test to be met. With the absence of the shock requirement, there would be difficulties to base the liability on as the evidential complexities of the case will increase, renders investigation more costly. It is also possible that many claims will arise much later after the event, resulting in no finality to the prospect of litigation for the negligent party. It would also be more difficult to establish whether the claimant’s illness was directly caused by the act or omission in question, and not by some other intervening event.[88]
(iii) Bystander
In relation to bystander, Lord Ackner said that there is “no reason in principle why a [bystander] should not [be entitled for damages where] a reasonably strong nerved person would have been so shocked." Lord Keith provided that a bystander could claim “if the circumstances of a catastrophe occurring very close to him were particularly horrific."[89]
This is contradictory with McFarlane v EE Caledonia Ltd[90], where Stuart-Smith LJ:
“As a matter of principle and policy the Court should not extend the duty to those who are mere bystanders or witnesses of horrific events unless there is a sufficient degree of proximity, which requires both nearness in time and place and a close relationship of love and affection between the plaintiff and the victim.”
At the present time the law is unclear as to when, if at all, a bystander may succeed. However, it has been argued that there should be an extension of liability in relation to bystander cases.[91] The reason for this is that the basis of liability for bystander based just on ‘reasonable foreseeability’.[92] In addition, the ‘scale of horrors’ is ‘entirely subjective’ and is therefore difficult to measure.[93]
(iii ) Rescuers
In Alcock[94], Lord Oliver said that rescuers were regarded as “participants” and are therefore not subject to the restrictions on recovery for secondary victims. His Lordship cited Chadwick v BRB, [95] where a rescuer who had suffered psychiatric illness had been awarded damages where he had reasonable fear of physical injury to himself. However, the rights of rescuers were subsequently limited by White[96] who has based their decision on Page[97]. It was established that only rescuers who exposed themselves to danger or who reasonably believed that they were doing so were entitled to recover. Any claimant who could not establish that he had been in physical danger as a result of the defendant's negligence was thus by definition a secondary victim. White[98] was applied by the Court of Appeal in Cullin v London Fire and Civil Defence Authority[99] where it was held that it was enough that the claimants had been at physical risk, even if it this had not brought about the psychiatric injury.
This was being criticized again as cutting across the Alcock[100] criteria where there was no suggestion that the rescuers have to be imperiled. There is also contention that the concept of ‘rescuer’ would need to be defined as the primary and secondary distinction is not at all suitable for resolving claims by rescuers; the true requirement is that every claim should be judged by reference to the same legal principle and be considered on their merits.[101]
Conclusion
Based on the essay written above, it is widely accepted that the law governing psychiatric injury under Alcock[102] is to be regarded as unsatisfactory. It is said that “the common law has taken a wrong turn.”
The restrictions established by Alcock[103] are considered to be overly complex and inconsistent, and has produced arbitrary results. Late in 1996, in the unreported case of MacCarthy[104] which also arose out of the Hillsborough disaster, the court has shown its reluctance to apply the very much disputed Alcock[105] restrictions when Sachs J allowed for recovery to a claimant who was in a remarkably similar position to the claimants in Alcock[106]. This showed that the apparent lack of “justice” afforded to the Alcock[107] claimant was shared in the eyes of the members of the judiciary and was deliberately not followed.
Law Commission in its report in 1998 thus proposes for a reform and recommended that the requirements of closeness in time and space, direct perception of the accident, and the ‘shock’ requirement should no longer apply. It proposed that the legislation should establish a statutory duty of care, imposing on the defendant a duty to take reasonable care to avoid causing the claimant to suffer a recognisable psychiatric illness, if the defendant could reasonably foresee that his acts or omissions might cause the claimant to suffer such an illness.[108] In fact, the ‘sudden shock’ and ‘the direct perception and immediate aftermath’ concept has already been rejected by the Australian High Court as a pre-condition for the cause of action.[109]
Bibliography
Books
Harpwood, V, Modern Tort Law, 7th edn, Routledge-Cavendish, Oxon, 2009.
Lunney, M, and K Oliphant, Tort Law Text and Materials, 3rd edn, Oxford University Press, New York, 2008, p.346.
Mullany, N, and P Handford, Tort Liability for Psychiatric damage, 2nd edn, Lawbook Co., Sydney, 2006.
Murphy, J, Street on Torts, 12th edn, Oxford University Press, New York, 2007.
Journal Articles
Bagshaw, R, ‘Tort Liability for Psychiatric Damage’, Law Quarterly Review, vol. 109, October 1993, pp. 691-696.
Barrett, B, ‘Compensation For Psychiatric Injury: Have Their Lordships Righted A Wrong?’, Industrial Law Journal, vol. 28, September 1999, p.263.
Brahams, D, ‘Claiming for Nervous Shock Due to Negligence in the Work Place’, Medico-Legal Journal, vol.72, 17 February 2004, p.31.
Case, P, ‘Secondary Iatrogenic Harm: Claims for Psychiatric Damage Following a Death Caused by Medical Error’, Modern Law Review, vol. 67, 2004, p.563
Jones, EGM, ‘Liability for Psychiatric Illness-More Principle, Less Subtlety?’, Web Journal of Current Legal Issues, 1995, p. 4.
Lewis, C, ‘Suffering The Aftermath’, Law Society Guardian Gazette, vol. 89, no. 16, 29 April 1992, p.25.
Locke, D, ‘Nervous Reaction to Compensation’, Law Society Gazette, vol.101, no.12, 25 March 2004, p.39.
Lynch, B, ‘A Victory for Pragmatism? Nervous Shock Reconsidered’, Law Quarterly Review, vol. 108, 1992, p. 367.
Mullany, NJ, ‘Tort in the Nineties’, The Alberta Law Review, vol.36, 1997, p. 290.
Nasir, KJ, ‘Nervous Shock and Alcock: The Judicial Buck Stops Here’, Modern Law Review, vol. 55, 1992, p.707
Nolan, DP, 'Psychiatric Injury at the Crossroads', Journal of Personal Injury Law, vol. 1, 2004, pp. 1-20.
Oughton and Lowry, ‘Liability to Bystanders for Negligently Inflicted Psychitric Harm’, Northern Ireland Legal Quarterly, vol. 46, 1995, p.18.
Phillips, Lord, ‘Liability for Psychiatric Injury’, Personal Injury Bar Association Annual Lecture, 23 November 2004, p.30.
Ritchie, A, ‘Damages for Psychiatric Injuries’, New Law Journal, vol.144, no.6674, 9 December 1994, p.1690.
Rodger, BJ, ‘Recovery for "nervous shock"’, Edinburgh Law Review, vol.2, no.1, 1998, pp. 100-107.
Teff, H, ‘Liability for Negligently Inflicted Nervous Shock’, Law Quarterly Review, vol. 99, 1983, p.100.
Thomas, C, ‘Satisfying the Hearness Test’, New Law Journal, vol. 153, no.7085, 20 June 2003, p.953.
Trindade, FA, ‘Reformulation of the Nervous Shock Rules’, Law Quarterly Review, vol. 119, 2003, p.206.
Wheat, K, ‘Liability for Psychiatric illness- the Law Commission Report’, Journal of Personal Injury Litigation, September 1998, pp. 211-216.
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Other Sources
Law Commission Report 249 (1998)
[1] V Harpwood, Modern Tort Law, 7th edn, Routledge-Cavendish, Oxon, 2009, p.37
[2] [1901] 2 KB 669
[3] D Locke, ‘Nervous Reaction to Compensation’, Law Society Gazette, vol.101, no.12, 25 March 2004, p.39.
[4] [1983] 1 AC 410
[5] [1983] 1 AC 410
[6] [1992] 1 AC 310
[7] Locke, loc. cit.
[8] [1992] 1 AC 310 at 418
[9] P Case, ‘Secondary Iatrogenic Harm: Claims for Psychiatric Damage Following a Death Caused by Medical Error’, Modern Law Review, vol. 67, 2004, p.563
[10] [1992] 1 AC 310
[11] [1992] 1 AC 310 at 407 – 408
[12] [1992] 1 A.C. 310 at 407
[13] [1995] 2 WLR 644
[14] [1992] 1 AC 310
[15] [1995] 2 All ER 736 at 755
[16] [1999] 2 AC 455 HL
[17] [1995] 2 WLR 644
[18] [1999] 2 AC 455 at 496 – 497
[19] [1999] 1 All ER 1 at 14
[20] [1999] 2 AC 455 at 480
[21] [1995] 2 WLR 644
[22] [1992] 1 AC 310
[23] [1992] 1 AC 310
[24] [1995] 2 WLR 644
[25] DP Nolan, 'Psychiatric Injury at the Crossroads', Journal of Personal Injury Law, vol. 1, 2004, pp. 1-20.
[26] 1999 EWCA Civ 1784
[27] (2004) UKHL 13
[28] [2001] 2 AC 592
[29] [1995] 2 WLR 644
[30] [1996] AC 155 at 197
[31] [1999] 2 AC 455 HL
[32] Nolan, loc. cit.
[33] C Thomas, ‘Satisfying the Hearness Test’, New Law Journal, vol. 153, no.7085, 20 June 2003, p.953.
[34] [1992] 1 AC 310
[35] B Barrett, ‘Compensation For Psychiatric Injury: Have Their Lordships Righted A Wrong?’, Industrial Law Journal, vol. 28, September 1999, p.263.
[36] [1992] 1 AC 310
[37] D Brahams, ‘Claiming for Nervous Shock Due to Negligence in the Work Place’, Medico-Legal Journal, vol.72, 17 February 2004, p.31.
[38] [1992] 1 AC 310
[39] J Murphy, Street on Torts, 12th edn, Oxford University Press, New York, 2007, p. 71.
[40] [1992] 1 AC 310
[41] [1992] 1 AC 310 at 397
[42] BJ Rodger, ‘Recovery for "nervous shock"’, Edinburgh Law Review, vol.2, no.1, 1998, pp. 100-107.
[43] K Wheat, ‘Liability for Psychiatric illness- the Law Commission Report’, Journal of Personal Injury Litigation, September 1998, pp. 211-216.
[44] Dept Constitutional Affairs 2007 Law on Damages Psychiatric Injury
[45] [1992] 1 AC 310
[46] [1992] 1 AC 310 at 404
[47] [1983] A.C. 410 at 422
[48] [1992] 1 AC 310
[49] B Lynch, ‘A Victory for Pragmatism? Nervous Shock Reconsidered’, Law Quarterly Review, vol. 108, 1992, p. 367.
[50] Rodger, loc. cit.
[51] Lynch, loc. cit.
[52] [2002] EWCA 1792
[53] [2003] EWCA Civ 697
[54] (2000) 57 BMLR 158
[55] Law Com 249, 1998, London: HMSO, paras 6.10-6.18
[56] EGM Jones, ‘Liability for Psychiatric Illness-More Principle, Less Subtlety?’, Web Journal of Current Legal Issues, 1995, p. 4.
[57] R Bagshaw, ‘Tort Liability for Psychiatric Damage’, Law Quarterly Review, vol. 109, October 1993, pp. 691-696.
[58] Lord Phillips,‘Liability for Psychiatric Injury’, Personal Injury Bar Association Annual Lecture, 23 November 2004, p.30.
[59] N Mullany and P Handford, Tort Liability for Psychiatric damage, 2nd edn, 2006, Sydney, p.144.
[60] [1992] 1 AC 310
[61] Thomas, loc. cit.
[62] Lynch, loc. cit.
[63] [1999] 9 Lloyd's Rep Med 39; also see Ravenscroft v Rederiaktiebolaget Transatlantic [1992] 2 All ER 470
[64] Mullany and Handford, loc. cit.
[65] (1995) 36 NSWLR 1
[66] (1995) 36 NSWLR 1 at 10 –11
[67] H Teff, ‘Liability for Negligently Inflicted Nervous Shock’, Law Quarterly Review, vol. 99, 1983, p.100.
[68] [1992] 1 AC 310
[69] KJ Nasir, ‘Nervous Shock and Alcock: The Judicial Buck Stops Here’, Modern Law Review, vol. 55, 1992, p.707
[70] C Lewis, ‘Suffering The Aftermath’, Law Society Guardian Gazette, vol. 89, no. 16, 29 April 1992, p.25.
[71] Bagshaw, loc. cit.
[72] Per Lord Oliver at p. 417C-D
[73] Bagshaw, loc. cit.
[74] [1992] 1 AC 310
[75] [1992] 1 AC 310 at 400
[76] [1992] 1 AC 310 at 401
[77] K Wheat, ‘Proximity and Nervous Shock’, Common Law World Review, vol. 32, no.4, December 2003, p.313.
[78] [1992] 1 AC 310 at 401
[79] (1994) 5 Med LR 170
[80] A Ritchie, ‘Damages for Psychiatric Injuries’, New Law Journal, vol.144, no.6674, 9 December 1994, p.1690.
[81] Nolan, loc. cit.
[82] [2002] EWCA Civ 1792
[83] (2000) 54 BMLR 1
[84] [1992] 1 AC 310
[85] Harpwood, op. cit., p.56.
[86] [1999] 2 AC 455
[87] [1984] HCA 52
[88] Dept Constitutional Affairs 2007 Law on Damages Psychiatric Injury
[89] [1992] 1 AC 310 at 413
[90] [1994] 2 All ER 1
[91] Oughton and Lowry, ‘Liability to Bystanders for Negligently Inflicted Psychitric Harm’, Northern Ireland Legal Quarterly, vol. 46, 1995, p.18.
[92] M Lunney and K Oliphant, Tort Law Text and Materials, 3rd edn, Oxford University Press, New York, 2008, p.346.
[93] Lynch, loc. cit.
[94] [1992] 1 AC 310
[95] [1967] 1 WLR 912
[96] [1999] 2 AC 455 HL
[97] [1995] 2 WLR 644
[98] [1999] 2 AC 455 HL
[99] [1999] PIQR 314
[100] [1992] 1 AC 310
[101] S Todd, ‘Psychiatric Injury and Rescuer’, Law Quarterly Review, vol. 155, July 1999, pp. 347-348.
[102] [1992] 1 AC 310
[103] [1992] 1 AC 310
[104] The Independent, 12 Dec 1996.
[105] [1992] 1 AC 310
[106] [1992] 1 AC 310
[107] ibid.
[108]Dept Constitutional Affairs 2007 Law on Damages Psychiatric Injury
[109] Tame v New South Wales and Annetts v Australian Stations Pty Ltd [2002] HCA 35, 76 ALJR 1348
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