1. The plaintiff must have sustained a recognized psychiatric illness;
2. Psychiatric illness was reasonably foreseeable;
3. There must be proximity of relationship between the plaintiff and the primary victim. A relationship of closeness based on ties of love and affection;
4. There must be a "shocking" or traumatic event;
5. There must be proximity in space and time of the secondary victim to the shocking event ("the aftermath").
- The psychiatric illness must have been caused by the shocking events.
- Criticism on the Principles of the Present Law:
The law of negligence in relation to compensation for psychiatric injury is generally regarded as unsatisfactory by judges, lawyers, academics, plaintiffs and defendants. The three more recent House of Lords cases do leave a stark contrast between claims by primary victims and those by secondary victims. The Alcock restrictions are widely seen as quite arbitrary and they appear to lack clarity, logic, justice and perhaps even plain common sense.
First of all, Mullany’s and Handford’s approach for some liberalization of this area of the law is that liability for psychiatric harm should be treated in the same way as physical injury and the proximity requirements used to limit liability in this area should be abandoned. In most cases, the reasonable foreseeability of psychiatric illness should be enough to give rise to a duty of care. They stated that: “…is society’s failure to appreciate, or refusal to admit, that serious disruption to peace of mind is no less worthy of community and legal support than physical injury to the body…The two kinds of personal harm should not be treated differently in terms of the rules governing responsibility at law…”
Secondly, the distinction between primary and secondary victims which, as a result of the decision in Page v Smith governs the recovery of damages for nervous shock merely adds to the complexity of the rules governing recovery for nervous shock by introducing a new set of rules for secondary victims. More generally, as both Frost and Hunter demonstrate, such ‘labels’ impose artificially rigid categories, which have been recognized as ‘more a hindrance than a help’. Moreover the classification of the victims of psychiatric illness as "secondary" victims is flawed. By distinguishing between the "primary victim" who suffers physical injury and the "secondary victim" who suffers psychiatric illness one is simply re-stating the proposition that physical injury is somehow superior to, or morally more entitled to compensation than, psychiatric illness. If one accepts the premise that psychiatric illness is just as substantial and disabling as physical injury and is just as much a subject for compensation under the tort system then
the distinction between "primary victims" who suffer physical injury and "secondary victims" who suffer psychiatric illness dissolves. It is an incremental step and it adds substance to the observation that nervous shock is the area of tort “where the silliest rules now exist and where criticism is almost universal.”
Moreover, the Court of Appeal’s decision in White has been greeted with considerable indignation by many members of the public, some of whom have written letters to he newspapers pointing out that it is difficult to see why the policemen should be better treated than the relatives of many of the killed and injured. There is considerable force in these criticisms of the court’s decision. One might think that if a person can’t cope with the stress of his job he simply ought to find a less stressful job. President Truman was once credited with the advice, “If you can’t stand the heat, get out of the kitchen”. But there is another reason why claims by policemen and other emergency workers for damages for psychiatric injury are particularly undeserving. Most employees in these categories work under statutory schemes, which permit them to retire on pension if they suffer injuries arising out of their employment. Furthermore, Stapleton is taking the same approach and perhaps a deliberately provocative. She contended that the available techniques are artificial and bring the law into disrepute. Is it not a disreputable sight to see brothers of Hillsborough victims turned away because they had no more than brotherly love towards the victims?
The House of Lords have recognized that the present state of the law in this area is not entirely satisfactory or logically defensible. Lord Oliver said as much in Alcock and Lord Steyn in White described it as "a patchwork quilt of distinctions which are difficult to justify". Lord Steyn's view is that the only sensible strategy for the courts is to say "thus far and no further" and to treat the position as reflected in Alcock and Page, leaving any expansion or development in this area to Parliament. Clearly, a radical reshaping of the law is needed. What then for the future and to what extent this area of the tort law should be liberalized?
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Law Commission Report No 249 on "Liability for Psychiatric Illness" (1998):
The Law Commission has also criticized the common law position as arbitrary and unfair and their Report No 249 on "Liability for Psychiatric Illness" (1998) declared the aim to “to remove…unnecessary constraints…without giving rise to fears of uncontrolled
liability.” The Report’s central focus is on reasonably foreseeable psychiatric illness suffered as a result of the death, injury or imperilment of a loved one.
It’s principal recommendation is that special limitations over and above reasonable foreseeability should continue to be applied to claims for psychiatric illness where the defendant has injured or imperiled someone other than the plaintiff, and the plaintiff, as a result, has suffered psychiatric illness. Secondly, where the plaintiff has a close tie of love and affection with the immediate victim the Commission proposes a fixed list of relationships, though without prejudice to the courts’ ability to recognize that other relationships satisfied this requirement on the facts of individual cases.
The Report makes two other main recommendations for legislative reform:
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The shock requirement. According to Lord Ackner, what is required is “the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind”. However, the Royal College of psychiatrists repudiated the ‘shock induced’ term as vague and emotively misleading. The Commission recommended that it should not be a condition of liability that psychiatric illness was induced by a ‘shock’. They recognize that abandoning the shock test has potential ‘floodgates’ implications. However, provided the close ties restriction is retained, removal of the shock requirement is viewed as not constituting a floodgates problem in its most threatening form.
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The imposition of all three proximity requirements is unduly restrictive, and that it is the last two limitations that have resulted in the most arbitrary decisions. The restrictive nature of these two proximity requirements is further highlighted by the different outcome in Alcock and Frost. There should be legislation laying down that a plaintiff, who suffers a reasonably foreseeable recognizable psychiatric illness as a result of the death, injury or imperilment of a person with whom he or she has a close tie of love and affection, should be entitled to recover damages from the negligent defendant in respect of that illness, regardless of the plaintiff’s closeness (in time and space) to the accident or its aftermath or the means by which the plaintiff learns of it.
Moreover, some of the key conclusions and proposals are as follows:
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The courts should continue to require evidence of a “recognizable psychiatric illness.” What amounts to a “recognizable psychiatric illness”, and the fact that the plaintiff is diagnosed as suffering from such an illness, will normally need to be established by expert medical evidence. Although it would not be practicable to provide a statutory definition, since “recognizable psychiatric illness” has become a term of art with which the courts have become familiar and which seems to be operating satisfactorily.
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The primary/secondary dichotomy has been given a policy importance, which it does not merit and requires drawing a line with a precision, which does not withstand close scrutiny. The Commission considered whether they should recommend legislation to cut through the confusion being caused by the distinction between primary and secondary victims. However, this would not be appropriate. Indeed, since they have no objections to the results of cases, they are not convinced that legislation would solve the problem. A provision saying something like, “Courts shall not use the distinction between primary and secondary victims” would be both odd and probably unworkable. Nevertheless they hope and expect that through this Report “The courts should consider abandoning attaching practical significance to whether the plaintiff is a primary or a secondary victim.” The House of Lords should heed this advice. The High Court of Australia and the Supreme Court of Canada have been prepared to avoid the approach of psychiatric damage claims by reference to the English dichotomy.
- Where the plaintiff’s psychiatric illness is suffered as a result from another person’s death, injury or imperilment it should not be an absolute bar to recovery that that person is the defendant.
- Conclusion:
The law appears complex and inconsistent. For claimants the area is difficult because the law may appear arbitrary and unpredictable; the law also seems to lack clarity and to be unfair. Psychiatric damage law is in its embryonic stages, because of the society’s failure or refusal to admit that psychiatric illness is no less worthy than physical injury, but perhaps more serious. Liability in this area was restricted for policy reasons and limited by the imposition of common law rules as a means of controlling the floodgates of an unknown but huge number of potential claimants. Perhaps, the fear that there will be a
flood of genuine claims carries great weight. Indeed, it is arguable that this is now the only policy factor that can be taken seriously as a reason for limiting the entitlement of plaintiffs to claim damages for psychiatric illness. The Law Commission concerned about the ‘floodgates argument’ and they concluded that at this point the “floodgates argument”, requires special policy limitations to be imposed over and above the test of reasonable foreseeability.
However, following the universal criticism of this area of tort law, the Law Commission shoot down the ‘floodgates’ argument and it recommended some proposals for reforms, which also led to some liberalization. First of all, they recommended that it should not be a condition of liability that psychiatric illness was induced by a ‘shock’. Secondly, they hoped that “the courts should consider abandoning attaching practical significance to whether the plaintiff is a primary or a secondary victim”, a reform which the House of Lords should heed. Nevertheless, they recommended that there should be legislation laying down that a plaintiff, who suffers a reasonably foreseeable recognizable psychiatric illness as a result of the death, injury or imperilment of a person with whom he or she has a close tie of love and affection, should be entitled to recover damages from the negligent defendant in respect of that illness, regardless of the plaintiff’s closeness (in time and space) to the accident or its aftermath or the means by which the plaintiff learns of it. But as Williams J has noted: ‘Undoubtedly the last word has not yet been written on the scope of liability with respect to [psychiatric] injury and new factual situation coupled with new technology will cause appellate judges to review limits of liability for such injury from time to time.’
Dulieu v White & Sons [1901] 2 KB 669
Lord Denning MR, Hinz v Berry [1970] 1 All ER 1074, p. 1075
Lord Wilberforce, McLoughlin v O'Brian [1983] AC 410, p. 418
Page v Smith (1995) 2WLR 644
Lord Lloyd, Page v Smith [1995] 2 All ER 736, p. 759
White v Chief Constable of South Yorkshire Police [1998] 3 W.L.R. 1509 (the appeal from Frost v Chief Constable of South Yorkshire Police [1997] 3 W.L.R. 1194; Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310
Evidence of this paragraph is found in M. Lunney and K. Oliphant, “Tort Law”, (2000), Oxford University Press, Oxford, p. 300, 301
Hunter v British Coal Corporation [1998] 2 All ER 97
Evidence of this paragraph is found in http://webjcli.ncl.ac.uk/articles4/jones4.html and in F. A. Trindade, “Nervous shock and negligent conduct”, (1996) 112 LQR 22, Sweet and Maxwell, London, p. 24
Evidence of this paragraph is found in P.S Atiyah, “The damages lottery”, (1997), Oxford University Press, Oxford, p. 59-62
Law Commission Report No 249 on "Liability for Psychiatric Illness" (1998), para 1.3
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 401.
Evidence of this paragraph is found in Harvey Teff, “Liability for Psychiatric illness: Advancing Cautiously”, (1998) 61 MLR 849, Blackwell’s Publishers, Oxford, p.853, 854
op. cit 15 at paras 6.13 – 6.16(1)
ibid 15 at paras 5.5, 5.6(2)
ibid at paras 5.52 - 5.54
ibid at paras 6.8, 6.9(10)
(1991) Aust Torts Rep. 81-116 at 69,081