A duty of care to secondary victims will only arise if they can satisfy very restrictive requirements. As such, the courts’ reluctance to allow claims under this head is understandable, for it acts as a control mechanism to limit any man on the street from claiming for psychiatric injury. As cases are analysed in the following paragraphs, we will see how claims are limited by the courts and will eventually determine if there still remains a severe restriction on the scope of recovery for psychiatric injury in the law of negligence today.
As a starting point, the House of Lords in the case of McLoughlin contemplated the area of nervous shock and held that the test to be applied was the reasonable forseeability test, in that the question to ask was whether it was reasonably foreseeable that the claimant would suffer from nervous shock as a result of the defendant’s negligence. The House of Lords then went on to adopt two distinct approaches to liability. Lord Wilberforce held that because nervous shock was capable of affecting such a wide range of persons, there was a need for the law to place some limitations on claims. He considered that there were three elements inherent in any claim, namely, the class of persons who could claim, the proximity of such persons to the accident in time and space, and the means by which the shock was caused. Lord Bridge had a point when he felt that this narrow approach would place arbitrary limits on recovery, and showed preference for the test of reasonable forseeability.
The House of Lords in Alcock adopted Lord Wilberforce’s approach and held that if the claimant satisfied both the test of reasonable forseeability that he would be so affected as a result of the close relationship of love and affection with the primary victim, and the test of proximity to the tortfeasor in terms of physical and temporal connection between the claimant and the accident, only then would the claimant be able to recover for nervous shock. Alcock arose from the Hillsborough football stadium disaster in 1989. It was the FA Cup Semi-Final match between Liverpool and Nottingham Forest, where all the tickets for the event had been sold, and in addition, it was aired on live television. However, play had to be interrupted after six minutes because too many spectators had been allowed onto the terraces that some were being crushed against the barricades which divided the terraces from the pitch. A total of 95 people died in the tragedy which followed, and another 400 required hospital treatment for their injuries. Many tried to claim for psychiatric injury in addition to the physical injury claims. Psychiatric injury claims which fell within the categories of those who would be successful in bringing a claim were settled by the police. Additionally, there were two further groups of people who claimed psychiatric injury as a result of the tragedy: relatives and friends of those injured or killed, and police officers on duty. Therefore, this issue was examined in this case and the claimant could only recover if:
- his relationship to the primary victim was sufficiently close that it was reasonably foreseeable that he might suffer nervous shock
- his proximity to the accident or its immediate aftermath was sufficiently close in both time and space; and
- he suffered nervous shock through seeing or hearing the accident or its immediate aftermath.
Thus, a claimant would fail the test of reasonable forseeability or proximity unless the psychiatric illness was caused by sudden nervous shock through seeing or hearing the accident and its immediate aftermath. Also, a claimant who suffered nervous shock caused by being informed of the accident by a third party does not satisfy these tests.
Therefore, persons who witnessed the disaster live on television would not be said to have suffered nervous shock as a result of viewing the sights and sounds of the event, as they were not present in person at the site of the event and thus were not in proximity to the event, and did not suffer shock in the sense of a sudden assault on the nervous system. It was also held that the class of persons who may claim for nervous shock was not limited to particular set relationships such as husband and wife or parent and child, and it was further suggested that a bystander who witnessed an unfortunate incident might be able to recover and that, in certain circumstances, a claimant might recover on witnessing an event on live television.
It may seem that on the face of it, in Alcock, the House of Lords have widened the range of potential claimants considerably, although on the other hand, upon reading of the judgements with a fine-toothed comb, it might suggest that this range has been narrowed in some circumstances. Their Lordships therefore rejected the concept of limiting the class of persons who can claim to specified relationships such as spouses or parents and children in favour of the close relationship test. This seems to make sense and is fair and just, and, echoing Lord Keith’s sentiments, it is only with the existence of this close relationship of love and affection which will lead to nervous shock. Presumably, it will be open to the defendant in the cases involving spouses to rebut the presumption by proving that the partners have separated and have not been living together for some years. This broad approach, however, is not free from difficulties. Although Alcock would allow recovery by a particularly close friend who can satisfy the criteria of love and affection, but how is a defendant to reasonably foresee the existence of such a close friend? While it is easy to foresee that the primary victim of an unfortunate accident may have a spouse or children or a sibling, is the existence of such a friend foreseeable? Can this approach be said to bring any degree of certainty or logic to the law, taking into account the fact that the judges are divided on this matter in the sense that some are more ready to foresee a great deal and others take a narrower view? It may be just from the point of view of the secondary victim, but is it just in regards to the defendant for the courts to impose such a wide liability?
Another area that is much in debate arises from the second requirement that the claimant’s proximity to the accident or its immediate aftermath is close in both time and space, as this usually gives rise to problems of justice and uncertainty. It is obvious why this requirement is needed, in that the claimant should not be allowed to claim a long time after the accident, but what exactly do the words ‘being close in time and space’ mean? In Alcock, Lord Ackner was not prepared to allow recovery to a claimant who saw the body of a brother-in-law at a mortuary approximately eight hours after the accident, and Lord Wilberforce stated in McLoughlin that a two hour delay period was at the margin of the time span for recovery. There seems to be some division of thought here as a result of the undefined time span. This seems to be an arbitrary timescale and which would appear to suggest that a claimant who is contacted by mobile phone and told to attend at a hospital and lives just a few blocks away may be able to recover, whereas a claimant who lives in another town may not. Is a claimant who is away on business and on return identifies a dead spouse any different from a person who is called from work just down the street to identify a dead spouse?
Exactly what is meant by the claimant’s proximity to the event or its immediate aftermath has been rendered even more confusing by the decision of the House of Lords in W v Essex County Council. In this case, the claimant’s parents took into their care a youth placed with them by the local authority, who was the defendant. The youth committed acts of sexual abuse on the claimants’ children, and when this came to the knowledge of the parents, they suffered psychiatric illness. The defendants sought to strike out the claim, but this was refused by the House of Lords. Lord Slynn, with whom all the other Law Lords agreed, stated that it was in no way certain that the parents would fail to satisfy the required proximity to the event or its immediate aftermath in both time and space. Lord Slynn stated that he was uncertain that in this case, the parents would have to come across the abused or abuser immediately after the sexual event. Given the statements regarding time in Alcock and McLoughlin, this seems a very strange proposition of law. In addition, the parents were not witnesses to the abuse – they discovered it some time later. Their position is similar to that of parents who are told of their children’s involvement in an accident after the event, and in Ravenscroft v Rederiaktiebolaget Transatlantic, such a person was denied recovery for nervous shock. Therefore, there would appear to be considerable uncertainty in deciding in any particular case whether or not there was sufficient proximity to the accident or its immediate aftermath in time and space.
The never-ending problem in the law of nervous shock comes in the form of the word ‘shock’. In Walters v North Glamorgan NHS Trust, it had to be decided by the Court of Appeal whether an event after which 36 hours had lapsed could constitute ‘shock’, or whether it was a gradual assault of the mind over a period of time. The court, looking at the facts, held that this 36 hour period constituted an event, and stated that the present law permits a realistic view to be taken in each individual case.
Recent developments in the House of Lords have resulted in attempts to introduce some logic into the area of nervous shock. In Page v Smith, their Lordships held that it is inconsequential whether the injury caused is physical or psychiatric once it can be proved that a defendant is under a duty of care to avoid causing personal injury to a claimant. Thus, providing that it is reasonably foreseeable that the claimant might suffer personal injury, that will suffice in a nervous shock claim. Furthermore, the House stated that in nervous shock cases, it is important to distinguish between primary and secondary victims, as only secondary victims are subject to the restrictions in Alcock. As a result, the illogical distinction between physical and psychiatric injury has been abolished for primary victims.
In White and others v Chief Constable of South Yorkshire Police, the House of Lords removed what had been recognised as an illogical and unjust decision between claimants that had been brought about by the decision of the Court of Appeal in this case (reported as Frost v Chief Constable of South Yorkshire Police). The case concerned the Hillsborough disaster and, while in Alcock the claims of the deceased families were not allowed, in Frost, the claims of the police officers who were present were mostly allowed. The Court of Appeal reached this conclusion by holding that as the plaintiff police officers were in an employer-employee relationship with the defendant Chief Constable, a duty of care was owed to them where injury was caused by the negligence of the Chief Constable. Hence, the distinction between primary and secondary victims was irrelevant in the employment situation. The Court of Appeal also held that the police officers were rescuers and could recover relying on that status, which also did not involve the application of the Alcock criteria. This decision was overturned by the House of Lords, which held that an employee who suffered psychiatric injury in the course of employment had to prove liability under the general rules of negligence, that is employers’ liability is not a separate tort with its own rules, but merely an aspect of the law of negligence. Their Lordships also went on to deal with the rescuer argument, and held that a rescuer had to show that he had exposed himself to danger or reasonably believed he was so doing. Thus, rescuers are not to be treated as primary victims merely because they are rescuers. Consequently, in Greatorex v Greatorex, the High Court, following White, refused to allow recovery to a rescuer qua rescuer as he had not been exposed to danger in the course of the rescue, nor had he been in reasonable fear of such danger.
It should be noted that when the High Court had to ponder upon an extension to the law of nervous shock in Greatorex, in which the rescuer was the father and the personal injury to the primary victim was self-inflicted due to the primary victim’s own negligence, the court took into consideration policy issues in denying the rescuer recovery. As decisions which involve matters of policy are most difficult to predict and are subject to a wide amount of judicial variation, this adds to the uncertainty in the area of nervous shock and as such there remains a severe restriction on the scope of recovery.
As a conclusion, it is obvious that the current state of law on nervous shock is illogical, sketchy and uncertain in some respects. The solution to this would perhaps be the enactment of a statute, but the question of whether this would be at the expense of justice and flexibility is another issue of its own. Should the law specify categories of relationship into which a claimant must fit to be able to recover? Should the criteria for proximity in time and space be defined? Surely, the only limits that could be so defined are ‘reasonable’ proximity in time and space, which are hardly certain. Furthermore, it will also be difficult to find a basis for the thin line between psychiatric injury caused by a sudden shock and the same injury, caused by, for example, the stress as a result of having to care for a critically injured relative, or the grief of being bereaved. A statute could remove the necessity for direct sight or sound of the accident or its immediate aftermath, and allow recovery where the claimant is informed by a third person, subject to the claimant proving that it was the accident that caused the nervous shock, rather than his mind imagining what the accident and its effects were. A statute will obviously not solve all the problems associated with nervous shock overnight, but it could at least introduce a welcome degree of certainty and logic into this area of the law. Perhaps also, the requirements of proximity should be abolished. The requirement for psychiatric injury to be caused by sudden shock should be abandoned. Hence, it can be said that there will still remain a severe restriction on the scope of recovery for nervous shock, for as long as the law continues to remain uncertain.
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