The tort of negligence relating to claims for psychiatric injury.

When considering if Albert would have a claim it is important to look at each control mechanism separately and assess his chances.  First, based on the decision laid down in Alcock Albert would not be able to claim compensation as he does not come within what is defined as a relationship with close ties of love and affection.  Furthermore, there was a family feud and this was the reason he did not attend, so to say that he had a close tie of love and affection with the primary victim could be rebutted if analysed further.  In addition, Albert would fail based on the other two mechanisms as he was not present at the scene and only saw the events unfold on the TV which may have selectively interpreted the event, as happened in Alcock – therefore not giving a ‘true’ picture of events.  On the other hand, it could be said that it was reasonable foreseeable that the accident would have some impact on Albert and at the very least cause ‘severe distress’.  However, it is important to note that Albert only suffered severe distress which would in time fade and would probably have no long term effect on his personality or psychiatric wellbeing.

The second person who is seeking compensation is Bennice, one of David’s loyalist fans, but essentially a bystander.  Again, she would only be able to claim as a secondary victim.  Bennice was in no immediate danger herself and although she satisfies the second and third of Lord Wilberforce’s mechanism she does not satisfy (probably the most important control mechanism) the close ties of love and affection which need to be present. The second and third control mechanisms are very closely linked and often cannot be viewed in isolation when deciding if a bystander should be awarded compensation.  Generally bystanders are not entitled to recover for psychiatric injury as:

        ‘such persons must be assumed to be possessed of fortitude sufficient to enable                 them to endure the calamities of modern life’

In addition, Lord Denning stated:

‘In English law no damages can be awarded for grief or sorrow caused by a person’s death’

The point Denning was making is that it is not enough to just be ‘extremely upset’ by someone’s death (as happened with Bennice) the claimant has to show that injury to the primary victim has caused the claimant deep psychological trauma and not just ‘grief and sorrow’.

Furthermore bystanders are not entitled to recover due to policy arguments such as the need to avoid inderminate liability i.e. if defendant liable to one bystander then liable to all who were bystanders and the floodgates argument i.e. greater number of cases involving bystanders would appear.  Only if the primary victim was a member of their family would bystanders be entitled to recover damages (which will be looked at later).

There are various cases involving claims by bystanders.  One of the earliest cases of this type was Bourhill v Young.  In this case the defendant was held not liable to the claimant as bystanders are expected to possess ‘reasonable fortitude’ i.e. be mentally strong enough to cope with the ‘stresses’ of modern life and witnessing an accident.  Some cases which further illustrate this point are McFarlane v EE Caledonia Ltd and Robertson v Forth Road Bridge.  In both cases, it was held that the companies owed no duty of care to the respective employees as they were in no psychical danger themselves as they made no attempt to rescue the victim(s) of the accident so could not be called rescuers which would have made their legal position very different (see below).

The third person seeking compensation is Charles.  Charles attempted to rescue some of the victims from the wreckage – so this makes him a rescuer and as such a primary victim.  This is due to the fact that by rescuing the victims Charles was placing himself in immediate danger and as a result was endangering his physical wellbeing.  A case which illustrates this is Chadwick v British Railways Board in which, Mr Chadwick was able to recover damages due to the fact that he had gone ‘above and beyond’ what he was expected to do by endangering himself when he decided to rescue the victims of the train crash as debris could have fallen on him.  On the other hand, in the case of White & others v Chief Constable of South Yorkshire Police, a further case arising form the Hillsborough disaster, it was held that the defendant was not liable to pay compensation as the police officers were not rescuers.  The ratio for this decision was that unlike in Chadwick, the police officers (bar one female officer) in White were in no immediate danger i.e. made no attempt to rescue the victims and so could not claim for psychiatric injury suffered, as a result.

The fourth person seeking compensation is Donald.  Based on the criteria laid down by Lord Wilberforce for secondary victims Donald may be entitled to compensation.  This is due to the fact that he had a close tie of love and affection with someone who (at the time) appeared to be injured. A case which illustrates this point is Brice v Brown.  In this case it was held that the defendant was liable to the claimant as there was reasonable foreseeability that the defendants’ actions would cause psychiatric injury.  Similarly, it was reasonably foreseeable that the events would cause Donald ‘severe shock’ and maybe something more serious. Also, he was at the accident scene and saw the events unfold first hand so this would strengthen his claim for compensation.  However, there are a number of factors which could count against him.  First, he only suffered ‘severe shock’ which would in time fade and leave no lasting effect on his personality (like Albert).  Secondly, Donald saw events through his binoculars so this may not give a true picture as he was some distance away from the impact zone, and so, could at the time not be sure that his wife was definitely injured.

The fifth person seeking compensation is Eric, a firefighter.  As a general rule, members of the emergency services are not entitled to compensation for negligently inflicted psychiatric injury.  This point was made by the American judge, Justice Cardozo:

‘Danger invites rescue.  The cry of distress is a summons to relief.’

The case of White shows that members of the emergency services cannot be compensated just for doing their job they have to (as the old cliché says) go ‘above and beyond the call of duty’, which in the case of White, only one of the police officers did.  However, Eric’s claim is not as straight forward as just being a rescuer.  Although Eric does not fulfill all of the requirements which would help his claim for compensation, he may still be successful.  This is because as stated by Lord Denning the psychiatric injury must extend beyond ‘mere grief and sorrow’.  In Eric’s case he suffers long term Post Traumatic Stress Disorder (PTSD) which is a recognised medical condition and as such goes beyond ‘mere grief and sorrow’.  Based on the principle laid down in Page v Smith the defendant is liable for any existing conditions the claimant may have before the accident and is still liable if the accident causes these conditions to worsen or reappear ‘eggshell skull’ – you take claimant as you find them.  So, due to the appearance of this condition as a result of the accident Eric’s claim for compensation is more certain than it would have been.

The final person seeking compensation is Fiona.  Fiona would only be able to claim as a secondary victim.  Initially, it looks like Fiona’s claim may be unsuccessful.  She does not have the (specific) close tie of love and affection as required by Lord Wilberforce, like Eric, nor was she at the scene of the accident so couldn’t see what was happening but she could hear what was happening and so could probably ‘piece together’ events in her own head, but this could make the events seem worse than it is/was.  However, there are precedents which may strengthen her claim. In Hevican v Ruane the claimant was awarded damages even though he had not witnessed the accident.  Also as in McLoughlin, Fiona came on the immediate aftermath of the accident, as Eric and her other brother was still in the same state as when the accident happened.

So, in conclusion, there are various factors which affect whether an individual has a claim for compensation, ultimately whether a person receives compensation depends on the specific details of their situation and any precedents can only be used as a guide when advising a client on their chances of success. In addition’ this particular area of the law is constantly changing and developing.  So much so, that the Law Commission has produced a report which aims to reform Lord Wilberforce’s ‘control mechanisms’ and as such, make it far easier to gain compensation for any psychiatric injury suffered.

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Bibliography

Textbooks

Journal Articles

B. Harvey and A Robinson – ‘Traffic Accidents and Nervous Shock’ – (1995) NLJ 1100

S. Allen – ‘Rescuers and employees – primary victims of nervous shock – (1997) NLJ 158

S Irwin QC and J Glasson – ‘Psychiatric injury claims – (1998) NLJ 1816

Newspaper Articles

‘Villagers to claim pounds 400,000 for jet crash trauma’ - THE DAILY TELEGRAPH (LONDON) Saturday March 29, 2003 page 20

Cases

McLoughlin v O’Brian [1983] 1 AC 410

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310

Hinz v Berry [1970] QB 40

Bourhill v Young [1942] 2 All ER 396

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1

Robertson v Forth Road Bridge [1995] IRLR 251

Chadwick v British Railways Board [1967] 2 All ER 945

White & others v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509

Brice v Brown [1984] 1 All ER 997 

Page v Smith [1995] 2 All ER 736

Hevican v Ruane [1991] 3 All ER 65

Wagner v International Railway 232 NY Rep 176 at 180 (1921)

Websites

Additional Resources

Lexis Nexis

Lecture Notes

Module Handbook

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