The matters above got approval from arbitrators in the Herald of Free Enterprise arbitration in regards to a capsize of a ferry where the arbitrators made important points in regards to psychiatric consequences of trauma. In the case of Dulieu v White & Sons, the Court of Appeal decided that psychiatric illness which was caused by reasonable fear of injury to oneself was compensable. However, claims are likely to fail if the defendant can argue that because of the safety in regards to the location of the plaintiff, the plaintiff could not have reasonably feared for his safety. This was seen in the case of McFarlane v E E Caledonia Ltd, where the Court of Appeal held that the fact the plaintiff was some 550 yards away from the explosion, he could not have reasonably feared for his safety.
In Hambrook v Stokes Brothers, the Court of Appeal established that fear for another could be compensable as well. One example is imagining a mother at gunpoint, she would fear for her life, hence could be compensable. Now, imagine her child at gunpoint, she would fear the life of her child. This idea is supported by the Law Commission in their Consultation Paper No 137, ‘Liability for Psychiatric Illness’. However, some conditions need to be satisfied;
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plaintiff must have special relationship to the person in danger
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the person must have been imperilled by the event and the plaintiff witnessed it or was there soon after the incident.
In the case of Alcock, the House of Lords thought of categorising relationships which would confer as close tie of love and affection but decided against it as it would be harsh. By default, English law recognises husband/wife and parent/child relationships and till date, are the only ones recoverable. However, the Law Commission are of the opinion that a list of rebuttable presumption should be made for clarity of the law and should include relationships such as de facto spouses, stable homosexual relationships and brother/sister relationships. This is one of the limitations placed on psychiatric injury.
In regards to rescuers, based on the grounds of public policy and foreseeability, rescuers are owed a duty of care and are eligible for damages if they suffer psychiatric injury. This was seen in Chadwick v BRB and was approved in McLoughlin v O’Brian. However, the area which causes a lot of confusion is when a rescuer is deemed as a mere bystander and whether professional rescuers can claim for damages. Defining rescuers have been left to the discretion of the courts till date in order to discourage rescuers. The article, ‘Stress on the Boat’ in the Times were of the opinion that professionals should be precluded from claiming damages, in line with heavy damages paid out to rescuers of the Hillsborough incident. The House of Lords in Ogwo v Taylor stated that professional rescuers could claim if requirements of negligence were satisfied and it could be shown that the rescuer didn’t take risk. Hence, the HOL stated why psychiatric injury should be disregarded. It should be deemed that a police officer suffering from post-traumatic stress would suffer equally if not more that an officer with broken bones. To add to this, by excluding professional, the law might encourage them to do nothing more than their legal obligations. However, the topic in contention is in regards to a professional rescuer having higher ‘normal fortitude’ than a ordinary lay person.
Another category is ‘involuntary participants’ which are when the plaintiff is put in a situation to think that they are about to involuntarily cause the death or some sort of injury to another by the defendant. This was seen in the case of Dooley v Cammell Laird Co Ltd. Here, the plaintiff was under the impression that he had caused injury to his work mates when the cable on his crane had snapped causing a load of cargo to fall onto the ship. Here, it was decided the plaintiff could recover based on the judgement in the case of Alcock given by Lord Oliver,
"The fact that the defendant's negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event establishes of itself a sufficiently proximate relationship between then, and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable"
In this case, the plaintiff would be able to recover even though he is not close to the accident in space or time. Hence, this shows irregularity in the law as the above would be a requirement for the other categories.
Next category covered under psychiatric injury is mere bystanders. This was established in the case of Bourhill v Young where Lord Porter stated,
"the driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure....the noise of a collision and the sight of injury to others, and is not to be considered towards one who does not possess the customary phlegm"
However, in the Alcock case, the HOL didn’t rule out the possibility of a claim from a bystander. This was stated by Lord Ackner stating a claim could be successful if it was so horrific that an ordinary bystander would have been shocked. There are 3 possibilities on how a claim from a mere bystander could be successful;
- an exceptionally horrifying event leading to compensation
- simple exclusion from compensation
- compensation payable as long as conditions of proximity of event are satisfied
This causes some obvious difficulties. Regarding the first scenario, deciding on the nature of event as horrific or not would be very subjective and would cause inconsistency. Regarding the 3rd scenario, it would open a floodgate of cases. The second option is inconsistent compared to the approach used in Donoghue v Stevenson where Lord MacMillan stated “the categories of negligence are never closed” and also approach by Justice Brennan in Sutherland Shire Council v Heyman favouring the development in tort law.
The next requirement to claim for psychiatric illness is the witness must have witnessed the shocking event or was around soon after. This limb has been a subject of contention. In Hevican v Ruane, the judge decided that the plaintiff could claim for damages as he suffered from serious reactive depression after being told about the death of his son 2 hours after it occurred and identified his son at a mortuary 3 hours after it occurred. Justice Mantell stated the injury was foreseeable and there was a causal chain. However, on appeal, the HOL states that the case of Alcock has stated that identification of bodies in a morgue does not satisfy this limb. This was also seen in McLoughlin v O'Brian the plaintiff, Mrs. Loughlin saw her husband and kids in a bloody, dirty and dishevelled appearance at a hospital after the accident was allowed to claim as it was in the ‘immediate aftermath’. However, she arrived at the hospital several hours after the accident. Hence, what would suffice as ‘immediate aftermath’?
In Taylor v Somerset Health Authority, the plaintiff tried to claimed damages on psychiatric injury suffered after the death of her husband after been negligently treated for months. She was waiting outside when he died and identified him minutes later. However, Justice Auld held this claim shall fail as identification could not suffice as being ‘immediate aftermath’ stating the fact of the death shall be treated separately from the circumstances. In Sion v Hampstead Health Authority, a father claimed damages on the facts that the son was injured in a road accident and treated negligently after that in the hospital. The father watched his son’s condition worsen over 14 days before he died. His claim failed as the Court of Appeal stated there was no ‘shocking’ event and it was expected, hence, the claim must fail. However, in Tredget and Tredget v Bexley Health Authority parents were allowed to recover damages as their son was delivered negligently and arriving in a distress condition needing resuscitation. The event was said to be ‘horrific’ and shocking enough to be able to claim.
As it can be seen, this is the area of law on nervous shock that needs clarity.
The Law Commission has suggested that the conditions for proximity of event shall be disregarded where there are close tie in a relationship such as parent/child etc.
The final requirement is that the shocking event must be of normal fortitude. This is consistent with the law on negligence, which is if one is to suffer injuries, it must be foreseeable. As quoted by Lord Wright in Bourhill v Young. The idea of normal fortitude was put to test in Page v Smith. Here, a driver was involved in an accident where he suffered no physical injury. He claimed for damages stating he suffered from myalgic encephalomyelitis. Even though this isn’t a psychiatric illness, it has strong non-physical elements. His action failed as the Court of Appeal held this was not an injury a person of normal fortitude would suffer; hence, it was not foreseeable.
However, the judgement was overturned on the ground that the judge was mistaken in suggesting that the ‘normal fortitude’ test only applied to those not involved in the accident. But then again, the error has a ‘silver lining’ as limiting it to secondary victim would remove the duty of the judge in decided the degree of ‘shock’ in each accident. Another reason why the decision was overturned was because the decision by the COA had a lacuna, what would have happened if Mr. Page suffered minor physical injury? Would that be deemed as ‘normal fortitude’, hence the action shall succeed? Ergo, the House of Lords allowed the appeal and confirmed that only secondary victims were subject to the normal fortitude test. It also stated that since physical injury was foreseeable, psychiatric injury would be as well as there is no law stating the both should be treated differently.
However, has this made the law just? Or should the normal fortitude test only apply to a secondary victim who is a mere bystander? The House of Lords do show some suggestion of favouring this opinion as seen in Bourhill v Young where Lord Porter stated an individual who strolls the streets with ordinary phlegm, does not have special relationship to the primary victim of an accident, hence, is a mere bystander and shall not be allowed to claim. The Law Commission stated this requirement is crude as drawing a distinction between normal and abnormal fortitude would be unfair. This was seen in Haley v London Electricity Board.
The law on psychiatric injury is quirky especially when a defendant inflicts self injury and the plaintiff claims for damages after witnessing it. An example is committing suicide in front of another. However, an Australian case, Jaensch v Coffey suggest there would be no liability. Another possible problem is when there is contributory negligence involved, as stated by Lord Oliver in Alcock v Chief Constable of South Yorkshire Police. It places a duty to care for oneself which would contradict the right to self-determination. Another area not covered is whether there should be liability for bad news which has been negligently communicated, whether true or false. However, looking at this from the whole, this would place a burden of responsibility on the professionals such as doctors and firemen on who should deliver the bad news which could result in delay and a drop in the standard of work. Looking at psychiatric injury caused by property damage, the Law Commission are of the opinion that the same criteria used to assess liability should be used as in the cases of injury or human safety.
Another area which has been rather vague is in regards to liability of employers when causing stress or other psychiatric injury. In Walker v Northumberland County Council an employee succeed in her claim of psychiatric injury. The Court of Appeal held that it was the second time it has occurred, hence, the employer should have been aware and foreseen that a psychiatric injury could occur if the worker was overworked again. The Law Commission agree that employers should be liable in certain circumstances in order to protect employees.
A reform needs to be done in order for clarity in this are of the law, a statutory framework governing claims for damages in regards to psychiatric injury should be in place, as can be seen in Australia. In regards to the question always forwarded on whether a piece of legislation should be in place for negligently inflicted psychiatric injury, Lord Scarman certainly felt so as seen in McLoughlin v O’Brian. A reform is certainly needed especially when the defendant has negligently injured someone other than the claimant. On the other hand, trying to codify an area of law such as this would be difficult if not impossible. Hence, leaving it to judicial development might be a sensible solution.
All in all, a reform is certainly needed for some clarity and consistency. Another possible issue commonly raised is whether there even should be a distinction between physical and psychiatric injury. Medical research has proven that severe shock can cause changes in the chemical composition of the human nervous system. However, proving causation would be difficult hence limiting this opinion on removing the distinction.
Published on 29th March 1995
Structured Settlements and Interim and Provisional Damages (1992) No 125, and Aggravated, Exemplary and Restitutionary Damages (1993) No 132
expression 'psychiatric illness' is preferred because of judicial disapproval of the term 'nervous shock' and because one of the points in issue is whether it is valid to impose the requirement that the illness should be shock- induced in order to attract compensation
a so-called strict liability tort
'ordinary' shock and such 'ordinary' emotions as fear and grief will not suffice
Law Commission refer to as a secondary victim case
the fact that the plaintiff is commonly a secondary victim
considered whether damages were recoverable for pre-death terror in the cases of two people crushed to death at the Hillsborough football stadium disaster
See Report 1989, Vol 5 No 5 for a full report of the findings of the arbitrators
the horse van crashing into a public bar where the plaintiff was working
exploding Piper Alpha oil rig
Also known as 'proximity of relationship’
those with a close tie of love and affection to the imperilled; those who are rescuers; involuntary participants in the shocking incident and 'mere' bystanders
Also known as 'proximity to the event'
Firemen and police officers
The example given is that of the signalman who, due to a fault in the equipment, believes he has caused a train crash, out of his sight or hearing
He refused to allow the event proximity test to bar the plaintiff's claim on the basis that it would be applying an arbitrary rule peculiar to cases of nervous shock (at 69f)
sometimes known as chronic fatigue syndrome
by a three to two majority
However, as two of the three Court of Appeal judges did not deal with the other aspect of the defendant's appeal i.e. causation, the case has been sent back for a finding on this point
see e.g. van der Kolk 1984