It is clear that psychiatric injury presents the law with the most profound problems and it has only kept it under control by drawing a series of arbitrary lines. Discuss the above statement.

The so-called ‘profound problems’, arise from claims made by secondary victims. These are claimants who suffer psychiatric illness by ‘witnessing the death, injury or imperilment of another person’. This is where the courts have developed over the years certain requirements to be met for such claims and secondary victims have restrictions implied upon them. The reason for ‘imposition of special conditions’ is to avoid ‘floodgates’ of fraudulent and exaggerated claims as the plaintiff is mostly a secondary victim

Historical developments as to the limitations on liability on the defendant were established by the ‘impact theory’ evolving from Dulieu v White & Sons. Here, a plaintiff will only be compensated for psychiatric illness provided that it had been caused by reasonable fear of being physically injured. This principle only favoured primary victims and the courts abandoned the ‘impact theory’ in order to protect those victims who suffered psychiatric illness by witnessing a loved one being injured or put in danger by the defendants negligence. This gave birth to the category known as ‘secondary victims’.

So far implications are made that the plaintiff has to be at the place of the incident to claim for psychiatric illness. In McLoughlin v O’Brian the House of Lords extended the law to cover situations where the plaintiff has not seen or heard the accident but appeared to its ‘immediate aftermath’.  Lord Wilberforce, considering all the different views on a successful claim of psychiatric illness for secondary victims, introduced ‘control mechanisms’. The fear that psychiatric illness was capable of affecting a large number of claimants required the law to place some restrictions. Lord Wilkinson’s ‘control mechanisms’ could be described as ‘drawing a series of arbitrary lines’ to attempt to resolve the ‘profound problems’ caused by secondary victims of psychiatric claims. This was the foundation of the modern law psychiatric claims. Thus, all claims had to meet three requirements in order to be compensated for psychiatric illness: the class of persons whose claim should be recognised; the proximity of such persons to the accident; and, the means by which the psychiatric illness was caused.

As will be discussed, modern cases of secondary victims still follow Lord Wilberforce’s ‘control mechanisms’ but the Law Commission in 1998 published a report to further enhance the law to psychiatric claims omitting two of Lord Wilberforce’s control mechanisms.

The first requirement is that in order to claim for psychiatric illness there has to be a tie of love and affection for the person affected, ‘the closest of family ties’. Generally in English courts the relationship of husband/wife and parent/child are the only ones where damages have been recovered. Lord Wilberforce held this restriction as he believed that ‘defendants cannot be expected to compensate the world at large’. In Alcock v Chief Constable of South YorkshireLord Keith believed that fiancé(e)s should also be included as with spouses and the decision was a little harsh as the plaintiff in Alcock lost her fiancé whom she had a relationship with for four years. The Law Commission however, is deemed to propose a statutory ‘fixed list’ of relationships. It respects Lord Wilberforce’s control mechanism of ‘close ties of love and affection’ but suggests after the harsh ruling in Alcock that the list should include ‘parent, child, sibling, spouse and cohabitant including hetero or homo sexual.’ This will in effect open the ‘floodgates’ and allow cases such as Alcock to benefit from a claim.

The second requirement is that the plaintiff must witness the shocking event or its immediate aftermath with their unaided senses. It has to be close in both time and space. This is perhaps the most difficult proximity test as it results in particular arbitrary decisions. For example, in Hevican v Ruane Mantell J held that the father who suffered serious reactive depression following the death of his 14 year old son should receive remedy even though he saw his son four hours after the accident. Mantell J ignored the event proximity test arguing that it would be applying an arbitrary rule peculiar to cases of nervous shock. The decision had been overruled by the House of Lords in Alcock where it was said that identification of bodies in the mortuary did not satisfy the event proximity rule. The event proximity test creates confusion and tension as what is considered to be ‘reasonable time and space’ thus, the Law Commissions report proposed to abolish this requirement, this means that plaintiffs will only need to prove a relationship of closeness to succeed. The control mechanism did not define the means by which psychiatric illness was caused but merely depends on reasonable foreseeabilty of damage which is considered to be an essential element of the duty of care in psychiatric illness cases and secondary victim claimants must establish psychiatric illness was reasonably foreseeable. If the duty exists and has been breached, the defendant will be liable for all of the plaintiff’s psychiatric illness as was the case in Brice v Brown. However the Commissions suggested that it is not necessary to impose liability on a defendant towards a secondary victim if the defendant is not liable to the immediate victim. To achieve this, the Commission proposed a legislative provision where if the court considered a liability not to be ‘just and reasonable’, the defendant should not therefore be liable to the secondary victim. The commission points that the duty of care owed by the defendant to a secondary victim is an independent duty the duty is only owed in circumstances where it is ‘just and reasonable’. The Law Commission report 1998 seeks to abolish the event proximity and the psychiatric cause control mechanism.

To conclude, it could be said that the law of psychiatric injury is not and will never be expected to be stable as psychiatric illness is awkward to define exactly. There is no statutory act to govern this matter and Lords in courts have to establish a successful claim by foregoing cases.  Liability for psychiatric injury is in a growing stage.  At first the ‘impact theory’ was established from Dulieu v White & Sons. Then considering the fact that it excluded secondary victims Lord Wilberforce introduced the ‘control mechanisms’. On the contrary, Lords Bridge and Scarman believed that liability for psychiatric illness should be decided by applying a broad test of foreseeabilty and that Lord Wilberforce’s ‘control mechanisms’ do not define the circumstances in which psychiatric illness is recoverable and now the Law Commissions are proposing reports to alter the ‘control mechanisms’ and give psychiatric illness a statutory meaning.  As Giliker and Beckwith put it in their words: ‘the law on psychiatric illness, like the law on economic loss, suffers from a lack of coherence’. This justifies Winfield and Jolowicz point that psychiatric injury ‘presents the law with the most profound problems’.

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Bibliography

Giliker, P. & Beckwith, S. (2004) Tort. 2nd ed. London: Sweet & Maxwell

Wheat, K. (1995) Law Commission Consultation Paper No 137 - Liability for Psychiatric Illness [Online] Web Journal of Current Legal Issues. Available from: <http://webjcli.ncl.ac.uk/articles2/wheat2.html> [accessed 26th December 2006]

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