Even after judicial attempts to clarify the principles governing liability for psychiatric harmloose ends remain. (Street on Torts) Discuss.

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’.  Harvey Teff uses the example of the Court of Appeal in Frost v Chief Constable of Yorkshire Police  to illustrate this argument where Rose LJ, Judge LJ and Henry LJ each came to different conclusions in relation to the claimant’s status.   As well as this, although the Lord Hoffmann had stated in White v Chief Constable of South Yorkshire that the ‘search for principle was called off in Alcock’, Lord Slynn had described the classification as ‘not…finally closed’.  This suggests a confusing and problematic distinction which has ‘proved to be a distinct embarrassment’.

        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 event. 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’.  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’.  As well as this, it has been argued that ‘mental harm can be more disabling and harder to endure than tangible bodily injury’.  

        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’.  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’ and Lord Hoffmann went even further in stating that ‘no one can pretend that the existing law…is founded upon principle’.  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’.  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 Council that the primary/secondary classification debate was ‘not…finally closed’, 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’, 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 experience.

        Although there have been judicial hints of its distaste of the principles laid down in Alcock, there has not been any concrete attempt of clarifying the principles in a more coherent and morally defensible manner.  Instead, it could be argued that there have been judicial attempts on further consolidating its judicial discretion in order to limit floodgates and to gain flexibility according to the individual facts of each case.  Examples of this can be found in Galli-Atkinson v Seghal.  This is the case in which the claimant went to the mortuary after being told at the scene of the accident that her daughter was killed.  This Court of Appeal had held that this constituted an uninterrupted sequence of events that the interpretation of the accident’s immediate aftermath would extend to the moment at which the claimant had left the mortuary.  It is interesting to compare this interpretation to that of Alcock where the relatives had travelled to Sheffield to search for their loved ones and subsequently visiting the temporary mortuary established was not entitled to invoke the aftermath doctrine.  Hence, it could be argued that the courts have purposely left the principles governing psychiatric injuries open in order to deal with individual cases after considering the number of possible claimants that may arise from each incident.  

        It should briefly be noted that there have been other attempts for reforming the principles governing psychiatric harm.  The most notable legislative attempt was the Law Commission’s ‘Liability for Psychiatric Illness’ Report in 1998.  They recommended that the proximity requirements to the scene of the accident and the manner by which he/she learns of it should not be used as criteria to restrict their claim so long as it was reasonably foreseeable that the plaintiff might suffer psychiatric illness from the defendant’s negligence.  It also recommended the abandonment of the requirement that the psychiatric illness be shock-induced.  Despite the limited extension of psychiatric liability proposed, they were rejected in 2007 by the Department of Constitutional Affairs Consultation paper and the 2009 Ministry of Justice report where they had preferred to allow courts to continue to develop the law.  

Conclusion

        This essay has first outlined the principles governing psychiatric injuries as laid down in Alcock before examining the criticisms and problems that have been caused by the primary/secondary victim classification.  Judicial attempts at reforming these principles were then examined, highlighting that many have been reluctant or perhaps incapable of clarifying the principles governing liability for psychiatric illness in a more coherent and morally defensible manner.  The fear of floodgates and the desirability of leaving a flexible framework seemed attractive in order to grant courts control over psychiatric claims.  However, as increasing concerns with the rigid legal principles of psychiatric injuries leading to arbitrary decisions, coupled with increased medical knowledge of other causes of psychiatric illness (such as stress from employment and other non-accidental cases), both the judiciary and the legislature must ensure that cases are being treated fairly and attempt to ensure legal certainty.  As several judges have hinted, ‘court-led reform is a remote prospect and ill-suited to producing a coherent, comprehensive framework’ and the legislature should, therefore, re-consider implementing statutory reform.  In conclusion, there were no judicial attempts to actively clarify the psychiatric principles.  However, it could be argued that the case law have definitely clarified their stance in that they cannot reverse the Alcock principles and will consider the facts of individual cases before coming to a conclusion on whether the claimant is entitled to damages.  

Word Count (excluding header and footnotes) = 1,975

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