McLoughlin v OBrian [1983] AC 410, per Lord Bridge, at 441. Discuss the above statement of Lord Bridge in the context of subsequent developments in the law relating to compensation for psychiatric injury, caused by the negligent actions of a tortfeasor.

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 ‘In approaching the question whether the law should, as a matter of policy, define the criterion of liability in negligence for causing psychiatric illness by reference to some test or other than that of reasonable foreseeability it is well to remember that we are concerned only with the question of liability of a defendant who is, ex hypothesi, guilty of fault in causing the death, injury or danger which has in turn triggered the psychiatric illness. A policy which is to be relied on to narrow the scope of the negligent tortfeasor’s duty must be justified by cogent and readily intelligible considerations, and must be capable of defining the appropriate limits of liability by reference to factors which are not arbitrary’.

McLoughlin v O’Brian [1983] AC 410, per Lord Bridge, at 441.

Discuss the above statement of Lord Bridge in the context of subsequent developments in the law relating to compensation for psychiatric injury, caused by the negligent actions of a tortfeasor. Is existing law in this area satisfactory? If not, how might it be improved?

Lord Bridge’s statement in McLoughlin can be broken down into two parts. The first part considers the liability in this area of law; the only question should be ‘who is guilty of causing the psychiatric injury’. The second part considers narrowing the floodgate by using policy consideration. His Lordship raised two requirements, which a policy must be justified on the basis of cogent and readily intelligible consideration and secondly it should not rely on arbitrary factors. However, the current law can hardly fulfil the second part since this area is emotionally charged, raising serious moral questions for the administration of justice, as many claimants fail owing to the type of victim that they are categorised as. The different judicial approaches to different categories of victim will be assessed with the various control mechanisms evaluated in order to assess their merits.

This essay sets out to critically examine the current law of psychiatric injury. Then, it will turn to discuss and analyse the unsatisfactory of the Alcock mechanisms, which designed to narrow the number of claims. Afterwards, it shall aim to find out how the problems in Alcock extend to some special categories of claimants such as rescuers and bystanders. In concluding the purpose will be to expand on what can be done to resolve the matter and whether it is worth alleviating.

The present English law on liability for psychiatric illness is effectively summarized in two decisions of the House of Lords McLoughlin v O'Brian and Alcock v Chief Constable of the South Yorkshire Police. To be eligible for a claim, the claimants must suffer a medically recognised psychiatric injury. In addition, in the light of Page v Smith, the plaintiffs will be categorised as either primary or secondary victims. Although the Law Commission has called the distinction ‘more of a hindrance that a help’, however, as Lord Bridge’s statement noted, there is a judicial desire to prevent a flood of litigation by permitting a wide class of individuals to make a claim. 

Primary victims must be exposed to a reasonable foreseeable risk of physical injury, disregard whether psychiatric injury was foreseeable. This treatment for primary victims is straight forward, since they have been placed in bodily risk. For an individual who cannot satisfy this will be deemed a secondary victim and must be of ‘customary phlegm’, and then overcome the control mechanisms from Alcock to succeed. This is where policy considerations steps in; it is designed to avoid imposing disproportionate liability. However, the Alcock mechanisms has acted as an arbitrary barrier to bringing a claim under the guise of whether the injury was a foreseeable result of the defendant’s act and put such victims in a far less favourable position than primary victims. This essay will discuss the mechanism one at a time.

The first mechanism is a need for a ‘close tie of love and affection’ with the primary victim of the incident. In Alcock, it was held that there is a rebuttable presumption of such a tie between a parent and child, and spouses.  The defendant should reasonably foresee injuries to these groups but not necessarily to others such as siblings who would have to show evidence of their closeness. However, commenters namely Weir, believes that such requirement causes ‘embarrassment’ to claimants who face cross-examination on their closeness therefore creates contradiction by investigators which might lead to unjust decisions. This exclusion would eventually create uncertainty and is more likely to cause deterioration in a claimant’s condition. However, in contrast to such comment, the Law Commission stated that policy considerations dictated limits to recovery by secondary victims, and claimed that this requirement operates as an appropriate control mechanism. Under the Commission’s proposal, the rebuttable common law presumption governing spouses, parents and children would be replaced with conclusive statutory presumptions in respect of a wider class of relationships. Interestingly, the Commission, following the two brothers case in Alcock, refused to put ‘siblings’ into the recommended ‘list’. Does it mean there is no close tie of love and affection assumed to exist between them? In fact, it does not require great imagination or great understanding of psychiatry to contemplate that, as a member of a family, might succumb to nervous shock in the event of a serious accident.

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The second requirement is that the claimant was present at the incident or its immediate aftermath. The judgement in McLoughlin v O’Brian extended the concept of ‘aftermath’ forwards and spatially away form the scene, thus the law covers seeing the person in the hospital two hours later before medical sergeants had properly attended them. This alleviates some strictness by not insisting on the claimant being at the scene but it is another arbitrary line drawn by the courts. On the one hand, Mrs McLoughlin arrived two hours later while the bodies were covered by mud and blood, yet on the other hand, in ...

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