The legal system has been long prepared to acknowledge liability for physical harm but reluctant to recognize psychiatric harm over almost a century, maybe because of lack of medical expertise on the subject, scope for fraudulent claims, inherent causation difficulties and the concern for "opening the floodgates" to endless actions. [2]
Steadily increasing knowledge of psychiatric illness has allowed legal and mental progress to go hand in hand still though claims for pure psychiatric harm are treated less favorably than claims for physical harm, despite the fact that as is generally accepted, psychiatric illnesses can cause much more serious problems than physical injury. [3]
The public opinion that losing a limp is not the same as losing concentration is depicted in the Lord Steyns statement in the case of White "there is equally no doubt that the public...draws a distinction between the neurotic and the cripple, between the man who loses his concentration and the man who loses his leg." [4] Lord Steyn suggested in the same case that claims for psychiatric harm have four distinctive features which justify their differential treatment, aiming to limit the number of claims.
Firstly the treatment of the claims of psychiatric harm as par with physical injury it would have implications for the administration of justice because due to the difficulty in drawing the line between psychiatric illness and mere grief would be costly and time consuming.
Secondly in some cases where there is an expansion of availability of compensation on claimants who have witnessed the event, the litigation might be a disincentive for helping themselves to recover from their mental illness.
The third factor is that if there was not a distinction between the compensations in the cases where the claimant who suffered psychiatric harm also suffered some physical harm or that psychiatric harm is a result of apprehension of physical harm and the cases where the plaintiff suffered pure psychiatric harm then the class of persons who can recover damages for pure psychiatric harm would be too great and would impose.
Fourthly, the imposition of liability for pure psychiatric harm, even maybe momentary lapses of concentration, will result in a disproportionately great liability of defendant. [5]
Using the above policy issues in reaching or justifying decisions led to develop a lot of complexities, not establishing principles, drawing numerous distinctions and proceed case by case.
Going back to basics, in order to establish an action in negligence the claimant must show that the defendant owes the claimant a duty of care, that the defendant is in breach of that duty and that the plaintiff has suffered damage as a result. To establish a duty of care the damage must be foreseeable and not too remote (legal causation).
For a claimant suffering pure psychiatric harm, in order to owned a duty of care has to satisfy additionally the following criteria known as the Alcock criteria.
(i) That he sustained his psychiatric injury as a result of "shock", i.e. "the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind", rather than by some more gradual process.
(ii) That the "shock" would have been sufficient to cause psychiatric injury to an imaginary "person of reasonable fortitude";
(iii) That he was close in space and time to the accident concerned or its immediate aftermath ("Nearness").
(iv) That he directly saw and/or heard the accident or its immediate aftermath ("Hearness").
(v) That he had a close tie of love and affection with the principal victim of the trauma ("Dearness"). [6]
Verifying the satisfaction of the above criteria, as shown briefly below is not a clear cut neither easy.
With respect to criterion (ii), what is a sufficient shock, how shocking does the event has to be? Does it have to be particularly horrific or violent?
In two similar cases, Sion v Hamstead Health Authority and Walters v North Glamorgan NHS Trust, a father and a mother respectively had to observe over a two weeks period and over 36 hours respectively the deterioration of the condition of their sons and eventually their death. In the first case the claim was denied while in the second case it was accepted. The decision was based not on the nature of the events but on the impact of the events on the respective claimant. [7]
With respect to criterion (iii) defining the limit of "the event" and the "immediate aftermath" is quite controversial (Walters case and Galli Atkinson v Seghal). In the Alcock case, a claimant, identified his brother in law in a bad condition in the mortuary, about 8 hours after the accident, [8] Lord Ackner stated "Even if this identification could be described as part of the "aftermath" it could not in my judgment be described as part of the aftermath". [9]
With respect to criterion (iv) a distinction is made between the ways the claimant learns about the accident ie, whether the claimant was informed, read or heard about it (mere knowledge) or whether he saw or heard himself the accident. As Lord Ackner put it in the Alcock case "a psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential". [10]
With respect to criterion (v) the close tie of love and affection is assumed that it does exist in the relationship between parent and child and husband and wife while in the case of more remote relatives and friends it would not normally be reasonably foreseeable and it would be up to the claimant that a relationship akin to spousal or parental relationship exists. In the Alcock case, the claim of a claimant, who lost two of his brothers in the accident, was dismissed because "… there was no evidence to establish the necessary proximity (in terms of relationship added ) which would make his claim reasonable foreseeable…." [11]
Distinctions between physical and psychiatric harm
Making a clear distinction between psychiatric and physical disorder might look an easy task but arguably the situation could be quite different. This difficulty has long been recognized but it is not always given the significance it deserves. An example is the case Page v Smith. In that case the injury suffered by the claimant (chronic fatigue syndrome) was genuinely difficult to categorize as physical or psychiatric.
Advances in psychiatric understanding and shifts in the social perception of damage make the divide between physical and psychiatric harm increasingly difficult to draw with conviction.
Distinctions between primary and secondary victim
The law recognizes two distinct categories of persons when considering claims for psychiatric injury "primary victims" and "secondary victims". The essential difference is that a "primary victim" is personally subjected to the danger of physical harm, whereas a secondary victim suffers psychiatric injury as a result of witnessing physical harm to others without in fact being at risk himself. In addition to this, there may be recovery in cases where neither of these categories applies but where there is an assumption of responsibility by the defendant for the claimant giving rise to a special relationship.
All primary victims are owed a duty of care and have by far the easier task of recovering damages. It is uncontroversial that where a claimant suffers physical injury as a result of the defendant's breach of duty, he may also recover damages for any psychiatric damage caused. Where a person is subjected to the risk of physical injury but is not in fact physically harmed, they may nevertheless recover as a primary victim for psychiatric damage sustained, provided that the risk of physical injury was foreseeable. [12]
A secondary victim must overcome several hurdles in order to recover damages for pure psychiatric injury after witnessing a perilous event. The secondary victim is only owed a duty of care if he/she satisfies the Alcock criteria listed above.
In the leading case of Alcock, the 10 appellants had suffered psychiatric injury as a result of the disaster in 1989 at Hilsbourg Stadium in Sheffield, in which, because of the admitted negligence of the defendants, some 95 people were crushed to death and over 400 physically injured. None of the appellants had suffered any physical injury, nor been in any danger, indeed most of them were not at the ground, though they saw part of the events on television. All whose appeals were before the House of Lords failed. [13]
Lord Oliver of Aylmerton in this case divided the cases in which damages are claimed for nervous shock broadly into two categories, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant in the event created by the defendant's negligence, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others. Later in the same speech, he referred to those who are involved in an accident as the primary victims, and to those who are not directly involved, but who suffer from what they see or hear as the secondary victims. [14]
However, in the later case of Page v Smith the claimant was involved in a collision caused by the defendants negligence which caused property damage but no physical injury as a result the claimant suffered a recurrence of myalgic encephalomyelitis or chronic fatigue syndrome which had affected him on and off 25 years but which now became permanent. [15] Lord Lloyd in the case of Page v Smith referred to primary victims as being those who were "directly involved in the accident and well within the range of foreseeable physical injury", and secondary victims as those who were "in the position of a spectator or bystander". [16]
'The discrepancy between these two definitions has given rise to much discussion. In White case the House of Lords adopted Lord Lloyd's approach. Lord Griffiths said, "In my view (the Alcock criteria) should apply to all those not directly imperiled or who reasonably believe themselves to be imperiled…". Lord Steyn regarded Lord Lloyd as having intended to narrow the range of primary victims. He remarked that "Lord Lloyd said that a plaintiff who had been within the range of foreseeable [physical] injury was a primary victim. Mr Page fulfilled this requirement and could in principle recover compensation for psychiatric loss. In my view it follows that all other victims, who suffer pure psychiatric harm, are secondary victims and must satisfy the control mechanisms laid down in the Alcock case." Lord Hoffman, dealing with the argument for the police officer plaintiffs that they were primary victims as they had been akin to rescuers, said that there was no reason why "they should be given special treatment as primary victims when they were not within the range of foreseeable physical injury and their psychiatric injury was caused by witnessing or participating in the aftermath of accidents which caused death or injury to others." Lord Browne-Wilkinson agreed with Lord Steyn and Lord Hoffman, but Lord Goff dissented on the basis that Lord Lloyd's remarks in Page v Smith could not have been intended to alter Lord Oliver's definition of primary victims in the earlier case of Alcock.' [17]
There are also other situations, where the courts have held people to be primary victims although they were not within the range of foreseeable physical injury, the view taken by the majority in Frost. Such cases are the Hatton v Sutherland (for suffering stress due to employment), the Salter v UB Frozen and Chilled Foods Ltd (involuntarily responsible for the death or injury of others), the McLoughlin v Jones (wrongfully imprisonment) and the Allin v City and Hackney Health Authority (receipt of distressing news). [18]
Distinction between the different groups of claimants
Rescuer
Even though rescuers' cases have had a relatively long history surprisingly, the definition of who is a rescuer in the eyes of the law is not entirely clear.
Also it is difficult to fit rescuers into the normal categories of primary and secondary victims. The present position of rescuers is therefore uncertain. The requirement, if it exists, that they were in physical danger or feared for their own safety seems hard to justify. Rescuers may sustain serious mental harm simply from what they see and hear in the aftermath of an incident. As a matter of policy they should not have to meet the additional requirement of a close relationship with the dead or injured victims applicable to normal secondary victims. "For my part the limitation of actual or apprehended dangers is what proximity in this special situation means" stated by Lord Steyn in the White. [19]
Employees
In the White case the policemen (as employees) claim against their employer was dismissed because the employer was not under duty not to cause the employee psychiatric injury and also on the ground of policy issues. Lord Steyn said "That is a weighty moral argument: ... If such a category were to be created by judicial decision the new principle would be available in many different situations e.g. doctors and hospital workers ….." [20]
Involuntary Participants
The involuntary participants are now best seen as a special category of secondary victims, relieved from the burden of establishing a close tie of love and affection with the primary victim, but subject to the other limitations on secondary victim recovery. [21]
Bystander
By the bystander is meant someone who can establish "event proximity" but has no special relationship with the primary victim. Normally such a person has little hope of establishing a claim although it could not be totally excluded.
The non-shock cases
The characteristics of these cases are that it is difficult to categorize them as a shock or a non-shock case, distinguishing between primary and secondary victim is either not clear or unnecessary even though courts are still using this terminology (without having legal consensus). [22]
Conclusions
The basic difficulty with the law relating to psychiatric injury is that it is not principled, it is not coherent and does not always produce the right result. The rules are generally considered to be overlay complex and inconsistent and to lead to the drawing of arbitrary distinctions.
The disparity of approaches like for example the definition of "primary" victim in the Alcock and Page Cases, [23] the uncertainty of the law especially as regards claims by the secondary victims (the rules on the requirement of a close tie of love and affection and what qualifies as the immediate aftermath of an accident) and the illogical emphasis on the area of physical risk (Page and White Cases) are only some very few examples of the problems of the Law at its current state. [24]
All the above together with the fact that it is accepted generally by everybody that the law has to be reformed justifies to my opinion Lord Steyn's statement.
