One of the main problems lies within the definition of the tort. This definition originally lead to not allowing claims through, for example in Victorian railways comrs v coultas. However, as science has advandced more claims have been allowed through. However, there is still difficulty in defining what amounts to a medically recognised psychiatric injury. While it is clear that conditions such as post traunmatic stress disorder are recoverable, the law is less clear on conditions that may be argued to be no more than profound grief. In Veron v Bosely the court of appeal made the distinction between ordinary grief and bereveament which both remain unrecoverable and pathological grief disorder which was the recognised psychiatric illness suffered by the father.
Also, grief and anxiety may be just as sever as a medically recognised illness. The suffering sustained for each of them may be just as devastating for each of them, yet compensation will only be awarded with a medically reconginsed illness.
Close ties are assumed to exist between spouses and parents and children. In other relationships the close ties have to be specifically proven. While it is a positive development to recognise that all matter of relationships could be close, it is not always correct to assume that a relationship between a married couple or a parent or child is a close one. Why do brothers and sisters have to prove close ties of love and affection, when then spend about one fifth of their lives living together, so how much closer do they have to be to prove the close ties of love and affection, when proving it between parents and children who also live together isn’t actually necessary? Even lord Alcock commented that close ties may be stronger in an engaged couple than between husbands and wifes.
By having the close ties requirement, this lead to extra burden being placed upon those who have to prove it exists between themselves and the primary victim. This makes the court hearing more traumatic for the claimant. It is questionable whether subjecting the personal lives and relationships of claimants to detailed scruting can be justified, at a time when even if their claims are true they are emotionally weak and vunerable.
There is a lot of uncertainty regarding the scope of the immediate aftermath test. In Mcloughlin v O brian, it was decided that the aftermath of the accident extends to the hospital to which the injured person was taken and persisted for so long as he remained in the state produced by the accident up to receiving post traumatic treatment. Professor Michael a Jones comments the liability for psychiatric illness should not depend upon a race between the claimant and the ambulance.
In Alcock, the law lords refused to extend the scope of the immediate aftermath to identifying a body at a mortuary some 8 hours after the event. Whilst the identification can be considered the aftermath, it cant be considered the immediate aftermath. The facts in Mcloughlin v o brian were on the margin of what the law would allow.
Also, there are the two contrasting cases of sion v hampstead and walter v N Glamorgan AHA. In Sion, the father watched his son die in hospital over a period of 2 weeks, and because it was a long outstretched process it did not count as psychiatric harm as it wasn’t a sudden and unexpected shock. However, in a later cases the judges hide behind the law to allow the claim. In this one, the facts were similar to sion apart from the fact that it was 36 hours instead of 10 days. However they said that one traumatic event has always been sufficient. If this is so, then why didn’t the same apply to Sion? Why was Sion denied a claim, as he had suffered one traumatic event and apparently it has always been sufficient, and walters allowed a claim? This inconsistency leads to less trust in the law, and with less trust in the law less people are going to want to claim for psychiatric harm, even if they have a good claim fr it.
Another one is the recatorgorising of rescuers in the white catorgories so the police didn’t have a claim. Unless rescuers can either prove now that they were in danger of physical harm but only suffered psychiatric harm making them a primary victim, or that they had close ties of love and affection with the primary victim, they will have no claim as they will be classed as a secondary victim. However, this contradicts the original catorgory of rescuers, which saw them as a separate catorgory as in Chadwick, and if they had risked there own life for the safety of others they would receive compensation if they suffered psychiatric harm as a result.
The law commission recommends that the requirement that psychiatric illness be induced by shock should not longer apply, the requirement of closeness to the accident in time and space or immediate aftermath in respect of those whose suffer psychiatric injury as a result of harm being caused to those who the claimant has close ties need no longer apply, and the catorgories of people that are deemed to have close ties should be extended to the victims spouse, parent, child, brother or sister. However, what must be taken in to consideration is that to prevent the floodgates being opened to far, that the changes should not be so drastic that the amount of claims or the duty of care becomes so wide that the floodgates will been too big like when the Anns test was being used in the 1980’s.
