Tort - Nervous Shock

In Alcock v Chief Constable of South Yorkshire This was a test case with specific claimants being chosen because their situations mirrored around 150 other potential claimants and clarity around proximity of relationship and geographical proximity where required. Counsel for the claimants based his case on the argument that the sole test for duty in nervous shock cases was whether such illness was reasonable foreseeable. The House of Lords rejected this, in line with Lord Wilberforce’s point in the McLoughlin case that foreseeability alone did not give rise to a duty. The control mechanisms where unanimously adopted in Alcock and are still used today. Most of the claimants in Alcock were not considered in a close and loving relationship with anyone killed or injured at Hillsborough. Brian Harrison suffered post traumatic stress disorder (PTSD), when he lost his two brothers at Hillsborough failed in his claim. There was insufficient evidence to suggest that he enjoyed a sufficiently close and loving relationship with his brothers as to make it reasonably foreseeable that he would develop a psychiatric illness as a result of their being killed. However a mother and father who lost their son met the ‘close and loving relationship’ element of the control mechanisms and it was reasonable foreseeable that they would suffer a psychiatric illness in the aftermath of the Hillsborough disaster. However the claim failed because they could not establish that the parents got PTSD by witnessing the Hillsborough disaster unfold or its immediate aftermath. They did see live pictures on television of the disaster however broadcasting regulations prohibited the showing scenes of human suffering in an extreme form and that it was insufficiently shocking to watch and that PTSD could not be derived from that.

In White v Chief Constable of South Yorkshire the majority of the Court of Appeal held that police officers who had to move dead bodies and where involved in the rescue where entitled to recover as rescuers even though they had not been in physical danger. By a bare majority however the House of Lords disagreed. They either had to satisfy the narrow definition of primary victims by being in physical danger or bring their claims as secondary victims and satisfying the Alcock criteria. However the courts have taken a more liberal approach at recent. Rescuers have been able to claim where the events have been so horrific and tragic that not even a thick skinned human who has had all the training available to him, can handle the tragedy the best example being the September 11th attacks

The conclusion to defining a secondary victim is someone whose personal safety is not threatened, but who suffers psychiatric injury as a result of either fear for the safety of others or the trauma of witnessing a harrowing event. Events such as 11 September have shown, in the TV and internet age the number of people who can witness and potentially be affected by the graphic media coverage of accidents and disasters is limitless. It is for this reason that sometimes arbitrary and unjust control mechanisms have had to be put in place to restrict the number of admissible claims from secondary victims.

The circumstances in which a secondary victim can claim is that all three requirements must be met so that, to take examples from the Hillsborough incident, some claimants who were close relatives of victims and had watched the disaster unfolding on television failed because, although they met condition one, they could not satisfy conditions two and three. Other claimants who were at the game, thus meeting conditions two and three, failed because they did not have a sufficiently close relationship with any of the victims and therefore failed to meet condition one.

Tort answer (B)

The issue here with whether Hugh can claim is if he satisfies all three of the control mechanisms of Lord Wilberforce? The first one being the class of persons, they must have a close tie and loving relationship with the victim(s). There are two relationships to be considered here, there is relationship between April and Hugh and Sally and Hugh. Whilst Lord Keith in the Alcock case did not seek to limit the class of particular relationships he went on to say that such a relationship would exist in the case of spouses and parents and would extend to fiancés. From the facts before me it is not clear whether April and Hugh were in fact engaged, all the facts of April and Hugh’s relationship would have to be considered by the courts, If they had been living together for a long time and had their wedding booked for in two years time for example then the courts would look favorably on that, however if they where estranged then this may not be considered and there would be strong evidence required to suggest otherwise.

As for the relationship between Hugh and Sally, the area of law here is weak, it would be in this instance that if the proposals of the Law Commission in 1998 had come into place, in that there would be a statutory definitive list of relationships in which close ties of love and affection would be deemed to exist and a wider class of relationships would be included. It would be then that sally’s link to Hugh would be clearer. For now it remains that the narrowly drawn list of the common law presumptions in Alcock are still to be used. Can Sally be considered as the spouse of Hugh? Hugh after all is not Sally’s biological father. Again the close tie would have to be proven. If Sally had been adopted by Hugh, or ‘had brought up the victim as their own child’ as described by their lordships in Alcock, then there is possible recovery here.

The second of the control mechanisms that needs to be considered is the proximity in time and space, the fact that the immediate aftermath was not physically witnessed and only heard over the phone by Hugh may not satisfy the requirements of physical proximity being close in both time and space to the accident or its immediate aftermath. Lord Ackner in Alcock described that in the case of McLoughlin v O’Brian the claimant where notified by phone of the accident, then seen by the claimant 2 hours after the event and the immediate victim was in the same condition as found at the seen of the accident where of borderline of what was acceptable as the aftermath. The facts before me do not indicate whether Hugh managed to get to the scene immediately after the accident or indeed the hospital, if it was so Hugh would have a stronger case for recovery of PTSD.

It is somewhat difficult to accept a reason why a rule based on public policy should preclude recovery for psychiatric injury sustained by a wife and mother who is so devastated by being told on the telephone for example that her husband and children have all just been killed that she is unable to attend at the scene; while permitting recovery for the reasonably, but perhaps less readily, foreseeable psychiatric injury sustained by a wife who attends at the scene of the accident or its immediate aftermath at the hospital where her husband has suffered serious but not fatal injuries.

My conclusion to the above is not entirely straight forward. In contradiction to the physical proximity rule, Lord Ackner in Alcock did point out that where a balloon trip is filmed on live TV, and a sudden catastrophe entails that parents watch their children plummeting to their deaths may be a recoverable action. This example refers to the sight of an accident; it could be argued that a casual link exists with the sound of an immediate aftermath directly from the accident victim as in Hugh’s case?

The next mechanism to be looked at is that the victim must suffer shock through sight or sound of the accident or its immediate aftermath. Cases for trauma by telephone are a rarity. Hugh did not hear the accident take place, as April rang Hugh after the accident. However it appears that it was soon after the accident that Hugh learned about it through April by phone and that he could hear the sobs of Sally who was dying in the background. Given cases such McLoughin and Jaensch v Coffey it would be reasonable to say that he came across the immediate aftermath of the accident through sound via phone. However their Lordships in Alcock held that the prerequisite of liability through sight or sound should be that the claimants perceived the events by their own ‘unaided senses’. Based on these facts, Hugh hearing the aftermath through the aid of a phone would not hold up in court.

It should be pointed out however that in Coates v Government Insurance Office of New South Wales Kirby P stated that: 'the rule of actual perception of the event is hopelessly out of contact with the modern world of telecommunications.’ However, telecommunications were hardly unsophisticated in 1992 (mobile telecommunications were however) when the Alcock judgments were given. The better view (also of Kirby P) is that the need for physical proximity is, at least in part, as out of date as the nineteenth century notions of psychology and psychiatry.

There is also the ‘sudden shock’ element to consider. This means that there has to be sudden appreciation by sight or sound of a horrifying event or its immediate aftermath, which violently agitates the mind, this is oppose psychiatric harm caused by the accumulation over a period of time of more gradual assaults on the nervous system as per example given by Brennan, J in Jaensch’s case – A spouse who has been worn down by caring for a tortiously injured husband or wife and subsequently suffered psychiatric illness as a result. In Hugh’s case it is reasonably foreseeable, that Hugh suffered sudden shock of the immediate aftermath as April gave Hugh a hysterical account of the crash, with the sounds of police and ambulance sirens and the screams of Sally dying. Also the fact that Hugh was not physically present does not mean the blow is less severe than if he did see it. In Palmer v Tees Health Authority  here a mother suffered shock on hearing her  young daughter, who had been abducted, abused and murdered and liability was denied because she did not see the event take place seems harsh to say the least.

It is a foregone conclusion that it can be anticipated that courts will be unconcerned whether disorder arose because a claimant was at an accident scene or its aftermath or learned of it from a third person face-to-face or in writing, through the internet, by email, fax, telegraph, over the telephone, or through watching television or videos or listening to the radio. The means of transmission will be recognised as immaterial where the truly essential elements of the tort are satisfied. Given the position taken in Alcock, (which seems to deny liability to many genuinely deserving claimants) it is extremely unlikely that the House of Lords would view communication of bad news in any of these circumstances as satisfying the requisite proximity to support recovery for PTSD.

Bibliography

Cases

Journals

Muthu, Y (2005) ‘If only I had a heart...’ 7 UTSLR, 157 (University of Technology, Sydney Law Review)

Wheat, K. (2003) ‘Proximity & Nervous Shock’ 32 CLWR, 4 (Common Law World Review)

Anon. (2001) ‘One step forward 2 steps back’ 13 LLR, 2 (Liverpool Law Review)

Rajendran, R. (2004) ‘Has the pendulum swung in favor of recovery for television viewers? 32 DLR (Deakin Law Review)

Books

Cooke, J (2001) Law of Tort, 5th edn. Pearson Education Limited pg 48-61

McBride, N & Bagshaw, R (2005) Tort Law, 2nd edn. Pearson Education Limited pg 87-110

Giliker, P & Beckwith, S (2001) Tort, 1st edn. Sweet and Maxwells Textbook series, Pg 83-108

Jones, M (2000) Torts, 7th edn. Blackstone Press Limited, pg 146 – 169

Hedley, S (2002) Tort, 3rd edn, Butterworths Lexis Nexis, pg 75-82

Turner, C (2005) Tort, 2nd edn, Hodder Arnold.

Websites

 

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