The second requirement is that the claimant was present at the incident or its immediate aftermath. The judgement in McLoughlin v O’Brian extended the concept of ‘aftermath’ forwards and spatially away form the scene, thus the law covers seeing the person in the hospital two hours later before medical sergeants had properly attended them. This alleviates some strictness by not insisting on the claimant being at the scene but it is another arbitrary line drawn by the courts. On the one hand, Mrs McLoughlin arrived two hours later while the bodies were covered by mud and blood, yet on the other hand, in Alcock, relatives who arrived eight hours later, having travelled further were denied a claim. Imagine a case where a mother affected in precisely the same way as Mrs McLoughlin, but too far away to reach the hospital quickly would likewise fail. Mainly because it failed the proximity test on the ground that the identification could not be described as part of the "immediate aftermath." The moment that “immediate aftermath” covey to “aftermath” is artificial and vague. As Lord Jauncey in his judgement, emphasised that to attempt a comprehensive definition of the "immediate aftermath" would be a fruitless exercise. Therefore, the means of establishing liability for psychiatric illness should not depend upon a race between the victim and the ambulance.
The third mechanism is that the psychiatric injury was a result of directly perceiving the incident or aftermath with one’s own “unaided senses”. It also requires that the injury result from the “sudden shock” of witnessing the event and not from some gradual exposure. This can produce problematic results. The word "shock" has lent itself to an idiosyncratic view that the plaintiff's illness must be caused by an instant event, which in colloquial terms can be regarded as "shocking." Teff, however, believes that it is the closeness of the actual bond between plaintiff and primary victim which is the key indicator of whether psychiatric illness will ensue. It is therefore artificial to focus on precisely how the shock is experienced in isolation from the actual relationship. Although the Law Commission points out in its review of the medical literature that a traumatic, "shocking" event is a more likely trigger for the occurrence psychiatric illness, this in itself does not justify excluding psychiatric illness caused by less "shocking" events. Another problem arise is the means of notifying the “shock”. No claim will stand in the current law if the plaintiff is being informed by a third party causes the injury. The basis, according to Lord Keith in Alcock appears to be a lack of proximity and because English law has never allowed for recovery in this way. However, if the claimant arrives at the mortuary in sufficient time, they will have a claim. This is hard to justify; if it is reasonable foreseeable that a parent would suffer injury as a result of witnessing an incident, surely it is a foreseeable occurrence from being informed of the incident.
It is clear that the Alcock mechanism is vague, unjust and unsatisfactory. Therefore, it does not fulfill Lord Bridge’s guideline for what policy consideration should be taken into account. This problems does not simple focus on the mechanisms, hence, we will then explore how the problem affect to the possibility of a claim by special category victims. This essay will mainly pay attention to two controversial aspects, namely rescuers and bystanders.
In current law, there is no difference between a rescuer and an ordinary claimant, in order words, the one who is at no risk of physical injury must satisfy the Alcock control mechanism to be successful. In reaching this position it could be said that the majority in White were unduly influenced in attempting to give solace to the relatives in Alcock. In terms of legal principle, the current position is hard to justify, a point in fact conceded by the majority, and the vie of the minority in relation to rescuers is preferable. The minority argued that White was suppose to follow the decision in Chadwick v BRB, which was considered to be that, as with physical injury, rescuers would be in a special position and have a successful claim. However, the majority allowed the appeal by the defendant and held that a rescuer who was not at any risk of physical danger could not be classified as a primary victim and therefore, they would have to satisfy the Alcock mechanisms to be successful.
So, the question would be whether the law should be extended incrementally to impose liability where a rescuer, in no physical danger, suffers psychiatric injury? Lord Hoffmann felt that it would not be reasonable in doing so. Firstly, it is clearly understood that a rescuer is someone who put himself in physical danger. If the term was extended as proposed to cover those who provide assistance in the aftermath, then the difficulties would arise in distinguishing such a person from a mere bystander. However, Lord Griffiths holds another point of view, believing that a distinction could easily be established on the facts of each case. It is arguably that Lord Griffiths’s view is better in the sense that while some distinction is required in order to prevent too comprehensive liability, taking matters on a case-by-case basis allow control to be maintained but also allows flexibility where warranted.
Furthermore, for witnesses who are mere bystanders, people without any relationship with primary victims has the most difficult position regarding claims for psychiatric injury. The Law Commission therefore suggested the law should refuse all claims by bystanders. However, The objection can be found in Alcock, such claims were not ruled out entirely, at least in those situations where the circumstances of the accident were particularly horrific. Clearly, it is not reasonable to deny a claim if the horrific context could be attribute to the defendant’s negligence and the bystander proved the causal link between the event and the illness was not abnormally sensitive, then there is no reason in principle for objecting to recovery. Perhaps we could be asking the more direct question: “Regarding to the context of the incident, was the plaintiff’s condition a reasonably foreseeable result of the defendant’s negligence?” This suggestion satisfied the Lord Bridge’s statement because the numbers that would satisfy the question would probably be relatively small. Moreover, in the light of foreseeability and causation, this test would bring a fair and just outcome but nevertheless able to avoid the vagueness of the current law.
Whether bystanders and rescuers should grant a recoverable claim is still controversial, this reinforced the imperfectness of the current law. The law should not deny a claim mainly because the plaintiff is not in a recoverable category. The role of tort is to compensate, at the expense of those whom the law deems responsible, those that have been injured. The current law did not warrant this but restricting their claims; all should be done is that each claim is measured against the same legal principles, not categories. For instance, the control mechanism proposed in Alcock would deny a relative who had attempted a rescue, while the mechanisms from White would defeat a claim by the policemen where they had no more than witnessed the event. It is hard to argue with this reasoning, particularly as it is firmly grounded in principle.
The thresholds on the current law, such as the requirements of proximity and aftermath have lead to widespread calls and criticisms. Therefore, reform on this area is desirable. A significant aspect of the Commission’s proposals was to remove the second and third mechanisms mainly due to the unjust results they engaged; the first mechanism would be retained in an amended form. In fact, such proposal is very similar to other jurisdictions such as Australia, which has been a pioneer of codifying this area of law. Therefore, a comparison between two jurisdictions might be helpful in determining whether the English Law should adopt the Commission’s proposal.
The Australian law of psychiatric illness is now governed by the Law Reform Act 1944. Similarly, the main requirement is that the plaintiff must prove the defendant’s negligence caused him or her to suffer ‘mental or nervous shock’. The main difference compare to the current English law is that, instead of having the foreseeability test, the case goes through a statutory formula, which lays down a general rule of liability as an addition to existing rules of liability”. There are several advantages of having a statute replace the common law. For example, the statute allows plaintiffs to recover in cases where it is not possible at common law. If a parent or husband or wife of the person killed, injured or put in peril suffers sock as a result of the accident, they can recover whether or not they were present at the accident or its aftermath. What matters is not how they learnt of the accident, but their relationship to the accident victim. However, there are considerable problems in converting into legislative form all the issues that have arisen in the case law governing liability for psychiatric damage. For example, as Handford and Mullany points out, that the Australian jurisdiction does not canvass matters such as relationship beyond the family sphere, modern means of communicating distressing news and many other problematic areas dealt with. It seems the cumbersome categories of victims tend to undermine the Commission’s very welcome insistence on the critical importance of actual ties. Therefore, legislative codification is not appropriate mainly because the flexibility is not guaranteed in statute. In the light of the continuing difficulties presented by the common law, the example of the statutory reforms in Australian jurisdictions and the enlightened attitude taken by the judges in those jurisdictions to questions of liability for psychiatric damage should be heeded.
To conclude, it is submitted that the statement per Lord Bridge describes an ideal. However, the present law of psychiatric illness suffers from a lack of coherence and it does not fulfill Lord Bridge’s expectation. The rules developed in Alcock and White seems to deny liability to many genuinely deserving claimants. As Lord Oliver in Alcock, who said this area of law were to be found “not in logic but in policy”. Therefore, it is an emotionally charged area of liability which raises acute moral problems. In order to ensure justice to victims of negligence, reform is desirable but not a necessity.
It is the prospect of such an undignified spectacle, which has led the Law Commission to recommend replacing the rebuttable common law presumptions of close ties of love and affection with conclusive presumptions in statutory form. The Commission’s proposals would vastly improve the situation while still maintaining control over claims. In fact, due to the flaw of the Commission, the Parliament has not taken the recommendation until today. Interestingly, after 14 years, the Law Commission has not published any new recommendation since No 249 published in 1998. Does it imply that we should leave the current law alone? Clearly, the main reason of this complexity in the area of psychiatric injury is mainly due to the physical limitation, namely, mindreading is impossible. Therefore, while medical technologies improve rapidly, there will be a positive effect on this area of law. Someday, optimistically, we might reach a satisfactory result even we leave the law alone today.
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Bibliography
Books
Atiyah, The damage Lottery (Oxford: Hart, 1997)
H Teff, Causing Psychiatric and Emotional Harm: Reshaping the Boundaries of Legal Liability (Oxford: Hart 2009)
John Cooke, Law of Tort (8th edn, Pearson Education 2007)
Markesinis and Deakin, Tort Law, (5th Clarendon Press 2003)
M Lunney and K Oliphant, Tort Law, Test and Materials (4th edn, Oxford University Press 2010)
N J McBride and R Bagshaw, Tort Law (3rd edn, Perarson Education Limited 2008)
P Giliker and S Beckwith, Tort (2nd edn, Sweet & Maxwell Limited 2005)
P Handford, Mullany & Handford, Tort Liability for Psychiatric Damages (1nd edn, Ryde, NSW: Law Book Company Limited 1993)
P Handford, Mullany & Handford, Tort Liability for Psychiatric Damages (2nd edn, Ryde, NSW: Law Book Co 2006)
Winfield & Jolowicz, Tort (16th Rev edn, Sweet & Maxwell, 2002)
Case Law
England and Wales
Alcock and Others s v Chief Constable of South Yorkshire Police [1992] 1 AC 310
Attia v British Gas [1988] QB 304
Boardman v Sanderson [1964] 1 WLR 1317
Bourhill v Young [1943] AC 92
Chadwick v British Transport Commission [1967] 1 WLR 912
Dulieu v White [1901] 2 KB 669
Duncan v British Coal Corporation [1997] cited in White v Chief Constable of South Yorkshire [1999] 2 AC 455
Frost v Chief Constable of South Yorkshire [1996] cited in White v Chief Constable of South Yorkshire [1999] 2 AC 455
Hale v London Underground [1993] PIQR Q30
Hambrook v Stokes Bros [1925] 1 KB 141
Hevican v Ruane [1991] 3 All ER 65
Hicks v Chief Constable of South Yorkshire [1992] 2 All ER 65
Hunter v British Coal Corporation [1999] QB 140
Jaensch v Coffey (1984) 54 ALR 417
King v Phillips [1953] 1 QB 429
Leach v Chief Constable of Gloucestershire [1999] 1 WLR 1421
M v Newham London Borough Council [1994] 2 WLR 554
McFarlane v EE Caledonia Ltd [1994] 2 All ER 1
McFarlane v Wilkinson [1997] 2 Lloyd’s Rep 259
McLoughlin v O’Brian [1983] AC 410
Page v Smith [1996] AC 155
North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792
Ravenscroft v Rederiaktiebolaget Transatlantic [1991] 3 All ER 73
Schneider v. Eisovitch [1960] 2 Q.B. 430
Schofield Chief Constable of West Yorkshire [1999] ICR 193
Vernon v Bosley (No 1) [1996] EWCA Civ 1310
White v Chief Constable of South Yorkshire [1999] 2 AC 455
Australia
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Journals
“Liability for Psychiatric Injury: Primary and Secondary Victims. Revisited” (2002) 18 Professional Negligence 167
“Psychiatric Injury in Breach of a Relationship” (2007) 27 Legal Studies 26
A Sprince, ‘Negligently Inflicted Psychiatric Damage: a Medical Diagnosis and Prognosis’ 18 LS 59
B S Markesinis, ‘Foreign Law Inspiring National Law: Lessons from Greatorex v Greatorex’ [2000] CLJ 386
Butler, “A “Kind of Damage”: Removing the “Shock” from “Nervous Shock”” (1997) 5 TLJ 255
Butler, “Mass Media Liability for Nervous Shock: A novel Test for Proximity” (1995) 3 TLJ 75
Deakin, Johnston and Markesinis, Tort Law (6th edn 2008) pp 152-153
F A Trindade, ‘Nervous shock and negligent conduct’, 112 LQR (1996), 22-27;
H Teff, ‘Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries’ (1998) CLJ 91
H Teff, ‘Liability for psychiatric illness after Hillsborough’, 12 OJLS (1992), 440-52.
H Teff, ‘Liability for Psychiatric Illness: Advancing Cautiously’, 61 MLR (1998), 849-59
H Teff, “The Requirement of “Sudden Shock” in Liability for Negligently Inflicted Psychiatric Damage” (1996) 4 Tort L Rev 44
Handford, “Psychiatric Injury law in England and Australia - drawing closer together?” (2007) 15 Journal of Law and Medicine 176
Havard, “Reasonable Foresight of Nervous Shock” (1956) 19 MLR 478
Hilson, “Nervous Shock and the Categorisation of Victims” (1998) 6 Tort L Rev 37
J. Stapleton, ‘In Restranit of Tort’, in P. Birks (ed.), The Frontiers of Liability, vol.2 (Oxford: OUP, 1994)
K J Nasir, ‘Nervous Shock and Alcock: The Judicial Buck Stops Here’, 55 MLR (1992), 705-13
M A Jones, ‘Liability for Psycahitric Illness – More Principle, Less Sublety?’ [1995] 4 Web JCLI, which can be found: <>
M Chamallas and L K Kerver, ‘Women, Mothers and the Law of Fright: A History’ (1990) 88 Mich L Rev 814, p 814
N J Mullany, ‘Englsih Psychiatric Injury Law: Chronically Depressing’ (1999) 115 LQR 30
N J Mullany, ‘Liability for Careless Communication of Traumatic Information’ (1998)114 LQR 380
P Giliker, ‘A ‘New’ Head of Damages: Damages for Mental Distress in the English Law of Torts’, 20 Leg. Stud. (2000), 272
P J Cooke, ‘Primary Victims: The End of the Road?’ (2004) 25(1) Liverpool LR 29
Rachael Mulheron, ‘Rewriting the requirement for a “recognized psychiatric injury” in negligence claim’ (2012) 32 (1) 77-112
Robertson, ‘Liability in Negligence for Nervous Shock’ (1994) 57 MLR 649
Rogers ‘Pschiatric Trauma: “Thus for and no further” - in fact not quite so far as hitherto’ (1999) 7 TLJ 23
S Todd, ‘Psychiatric injury and rescuers’, 115 LQR (1999) 345-50
- Sprince, ‘Page v Smith, Being “Primary” Colours’ (1995) 11 PN 124
Stapleton, “In Restraint of Tort” in The Frontiers of Liability (ed. Birks, 1994), Vol. 2
Law Commission
Liability for Psychiatric Illness Consultation Paper No. 137 (1995)
Liability for Psychiatric Illness Report No. 249 (1998)
Legislation
Australia
Law Reform (Miscellaneous Provisions) Act 1944 (NSW)
“English law no damages are awarded for mere grief or sorrow cased by a person’s death”. noted in Hinz v Berry [1970] 1 All ER 684, [42] (Lord Denning)
Law Commission, Liability for psychiatric illness (Law Com No 249, 1998) para 5.51
McLoughlin v O’Brian [1983] AC 410, per Lord Bridge, at 441
Dulieu v White [1901] 2 KB 669
However, Lord Lloyd in Page held that there was no justification in treating physical and psychiatric injury differently for such victims. See ibid
Bourhill v Young [1943] AC 92
The Commission stated that since the decision in Alcock, the common law had in some respects “taken a wrong turn”. See Law Commission, Liability for psychiatric illness (Law Com No 249, 1998) para 4.2
[1992] 1 A.C. 310 (HL) 376-378 (Lord Keith)
T Weir, A Casebook on Tort, (7th edn, London: Sweet & Maxwell 1992)
Law Commission, Liability for psychiatric illness (Law Com No 249, 1998) para 6.35
This section is driven by the decision in Alcock
M A Jones, ‘Liability for Psycahitric Illness – More Principle, Less Sublety?’ [1995] 4 Web JCLI, which can be found: <> accessed on 1st April, 2012
Approved in Jaensch v Coffey (1984) 54 ALR 417, 462-463 (Deane J)
H Teff, ‘Liability for psychiatric illness after Hillsborough’, (1992) 12 OJLS 440 [445]
Alcock and Others Appellants v Chief Constable of South Yorkshire Police Respondent [1991] 3 WLR 1057, 1125 (Lord Jauncey)
See F. A. Trindade, The Principles Governing the Recovery of Damages for Negligently Caused Nervous Shock' (1986) 45 CLJ 476, 490-3.
[1992] 1 A.C. 310, 423 (Lord Jauncey)
see Jaensch v Coffey (1984) 54 ALR 417, 439 per Brennan J
Hambrook v Stokes Bros [1925] 1 KB 141. The plaintiff witnessed the incident with her own unaided sense
See North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, NB. The courts exercise considerable discretion when deciding what amounts to a sudden shock
H Teff, “Liability for Negligently Inflicted Nervous Shock” (1983) 99 LQR 100 at 104-8
Law Commission, Liability for psychiatric illness (Law Com No 249, 1998) para
For example, Hunter v British Coal [1998] 2 All ER 97
Alcock and Others Appellants v Chief Constable of South Yorkshire Police Respondent [1992] 1 AC 310
There are other categories of claimants, including: participants, unwitting agents and employees.
“Psychiatric Injury in Breach of a Relationship” (2007) 27 Legal Studies 26 at 28
S Todd, ‘Psychiatric injury and rescuers’, 115 LQR (1999) 345-50 at 348
There were two grounds of appeal on regarding the duty as owed as employee and one on the basis of their rescuer status. See White v Chief Constable of South Yorkshire [1999] 2 AC 455 [456-459]
White v Chief Constable of South Yorkshire [1999] 2 AC 455 [510](Lord Hoffmann) and Markesinis and Deakin, Tort Law, (5th Clarendon Press 2003) page 144
ibid [463](Lord Griffiths)
Law Commission, Liability for psychiatric illness (Law Com No 249, 1998) para 7.11
“The case of a bystander… is difficult. Psychiatric injury to him would not ordinarily… be within the range of reasonable foreseeability, but could not perhaps entirely be excluded from it if the circumstances of a catastrophe occurring very close to him were particularly horrific.”, per Lord Keith in Alcock and Others Appellants v Chief Constable of South Yorkshire Police Respondent [1992] 1 AC 310
H Teff, ‘Liability for psychiatric illness after Hillsborough’, 12 OJLS (1992), 440-52 at 449
Rachael Mulheron, ‘Rewriting the requirement for a “recognized psychiatric injury” in negligence claim’ (2012) 32 (1) 77-112
The Commission cited Taylor v Somerset Health Authority (1993) 4 Med. L.R. 34 and Taylorson v Shieldness Produce Ltd [1994] PIQR P329 as examples where current mechanisms have produced unjust results. See Law Commission, para 6.12
Law Reform (Miscellaneous Provisions) Act 1944 (NSW), section 4(1). Similar provisions were enacted in the Australian Capital Territory in 1955 and the Northern Territory in 1956
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
“In some cases the mere existence of a family relationship gives rise to the plaintiff’s right to sue and in others that right depends on a combination of relationship and presence.” Cited from R P Balkin & J L R Davis, Law of Torts (1991) 257
P Handford, Mullany & Handford, Tort Liability for Psychiatric Damages, (1nd edn, Ryde, NSW: Law Book Company Limited 1993) page 240
The Law Commission suggested a partial codification only, see Liability for psychiatric illness (Law Com No 249, 1998) para 4.3
Alcock and Others Appellants v Chief Constable of South Yorkshire Police Respondent [1992] 1 AC 310 [418]
In the sense of current technology