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Claims for Victims of Psychiatric Illness

                                             CHAPTER ONE
INTRODUCTION:
The English law of negligence in relation to nervous shock or psychiatric illness is often considered as unfair and unsatisfactory by the defendants, claimants and even by the judges. The law on recovery of damages for psychiatric illness is entirely based on common law. As a result, the law in this area seems to be complex as well as inconsistent. Most importantly, the development of the law in this area has been influenced by policy considerations, that is to say, to restrict the large number of potential claimants. Consequently, actions brought by the potential claimants or the victims of psychiatric illness have often been unsuccessful for a number of reasons despite of having been suffered genuine recognized psychiatric injury[1].
Is there any specific definition of ‘nervous shock’ or ‘psychiatric illness’?
Generally, ‘nervous shock’ is a term which has been used by lawyers. The term is used to describe psychiatric injury or illness which is caused by the defendant. Although the term has been replaced by psychiatric illness but it reflects the approach of the law in such cases[2].
It is an important matter of discussion what is actually meant by psychiatric illness or if there is any specific definition of psychiatric illness under the English law of tort. The courts in different cases have recognized different type of psychiatric illnesses. For example, in Hinz v Berry[3], the court recognized ‘morbid depression’ as a recognizable psychiatric illness. In the case of Brice v Brown[4], ‘hysterical personality disorder’ was considered to be a psychiatric injury. In the case of Frost v Chief Constable of South Yorkshire Police[5], the court considered the post traumatic disorder to be a recognizable psychiatric injury.
The courts in a number of cases have attempted to define the psychiatric illness. In the case of Alcock v Chief Constable of South Yorkshire,[6] Lord Ackner defined the term nervous shock or psychiatric illness as “Sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.” On the other hand, Lord Keith defined psychiatric illness as “Sudden assault on the nervous system.[7]” Again, Hoffman L.J in the case of Page v Smith[8] defined psychiatric illness as a ‘mental trauma’. In this case, the court ‘considered chronic fatigue syndrome’ to be a recognizable psychiatric injury[9].
Who is a Secondary Victim?
A person will be considered as secondary victim if he was present at the scene of the horrifying event and subsequently sustained a psychiatric injury due to witnessing the accident or event in which other person was involved, although he himself was out of the range of foreseeable physical injury[10]. So, therefore, a secondary victim is someone who suffers from psychiatric illness through the fear of other person’s safety or injury. It was the case of Alcock v Chief Constable of South Yorkshire,[11]where Lord Oliver for the first time drew the attention to the distinction between the primary and secondary victims. In this case, he categorized the victims in a psychiatric injury cases in to two main categories- the primary and secondary victims. According to him, the primary victims are the category of victims who mediately or immediately was involved into the accident and the secondary victims are those who passively and unwillingly witnessed the event that involved the injury of others and subsequently sustained psychiatric illness[12]. However, subsequently Lord Lloyd in the case of Page v Smith[13]further emphasized upon the distinction between the primary and secondary victims. According to him, in all the psychiatric injury cases, a distinction or classification of the potential claimants is essential.
 
Is the Law harsh for secondary victims?
Generally, primary victims do not face too many hurdles in order to establish a claim as long as certain tests are satisfied. Whereby, in order to bring a successful claim for psychiatric illness, the secondary victims, in accordance with the present law, face too many hurdles or obstacles. The present law in this area seems to be very rigid and restrictive for the secondary victims. The law has imposed lots of requirements for the secondary victims before they can successfully make a psychiatric injury claim. The English courts frequently face claims brought by the secondary victims; as a result great deal of attention has been drawn towards the secondary victim’s cases[14]. The secondary victims are required by the existing law to satisfy or establish additional criteria before they can bring a claim for psychiatric injury against the negligent defendant which has been discussed elaborately in the later chapters.
 
 
 
 
 
                                                          CHAPTER TWO
THE PROXIMITY OF RELATIONSHIP (THE RELATION BETWEEN PRIMARY AND SECONDARY VICTIMS):
In order to establish a claim and recover damages for psychiatric illness the secondary victims must satisfy the proximity of relationship[15]. That is to say, the secondary victims must establish a close relationship with the primary victims. Unless and until there is clear evidence of having the close relationship or a ‘close tie of love’ with the person (primary victims) who is injured or within the zone of danger, the court will not allow any claims for psychiatric injury brought by the secondary victims. There are many examples where it has been seen that a person after sustaining a genuine shock could not recover damages for psychiatric illness only because of being failure to establish the fact that there was sufficient close relationship with the primary victims. So, the law in this area seems to be very rigid and complicated for the secondary victims. However, to satisfy the proximity of relationship with the primary victims might be considered a major obstacle for the secondary victims when there is an issue of establishing a claim for the psychiatric illness.
As far as the claims for psychiatric illness is concerned, it was the case of Hambrook v Stokes Bros[16], where the English courts for the first time recognized a claim for psychiatric illness by the secondary victims. The issue before the court was whether any person is entitled to establish a claim for psychiatric illness which has been sustained through the fear or apprehension of physical injury to others. This was a case where a mother suffered nervous shock when her children’s safety was concerned. In this case, the defendant’s servant negligently left a motor lorry on a street with the engine running. At one stage, the motor lorry started off by itself and went down the incline with a high speed where the claimant left her children playing. The mother was so frightened as soon as she came across the scene. Subsequently, she learnt from a bystander that one of her children have sustained injury by that running motor lorry. At that time she was three of four months advanced in pregnancy. She suffered nervous shock that affected her pregnancy and caused her injury. She was admitted to the hospital and when operated a dead foetus was removed. Eventually she died as a result of that injury. An action was brought by her husband for the loss of benefit of her services. The defendants admitted their negligence but also argued that the nervous shock suffered by the mother was too remote. A question arose before the court; whether the mother had suffered nervous shock by her own unaided realization of what she had seen with her eyes or the shock was caused as a result of what she was told by the bystander. At the trial, Branson J. took the opinion that, the claimant will not be entitled to establish a claim for nervous shock and recover any kind of damages if she had not suffered the shock through the fear of her own safety. However, Mr. Bankes, Atkin and Sargant L.JJ.[17] took the view that, the mother suffered nervous shock by her own unaided realization of what she had seen with her own eyes, not because of what she learnt from a bystander. So, it was held by the court that the claimant was entitled to recover damages even though she suffered psychiatric illness through the fear of her children’s safety, not through the fear of her own physical injury or safety.
The class of potential claimants is restricted among the secondary victims, especially for those who have close relationships with the primary victims. Traditionally, the category of close relationship indicates the familial relationship, such as the relationship between the spouses, parents and children, brothers and sisters etc. In the case of Mcloughlin v O’ Brian[18], Lord Wilberforce[19] took the view that, the reasonable foreseeability should be the only criteria to determine the defendant’s liability towards the class of person to whom the duty of care might be owed not to inflict any psychiatric injury through nervous shock sustained by reason of physical injury or peril to another. According to him, it is not necessary that such class of person, to whom the defendant owes liability, have to be spouse or parent and child. In that case, as long as the claimants can establish that there is a kind of close tie of love with the injured person and because of having such a relationship the claimant is mentally disturbed or shocked when the loved one suffers serious physical peril or injury. Such a relationship which is full of close tie and affection may be presumed to exist into the familial relationship or close friendship. Although, there was a rebuttable presumption that, in some cases, the close tie of love may exist between the engaged couples which might be even stronger than that of the married couples. When there is a close relationship between two people, it is a general knowledge and reasonably foreseeable that one of them would be suffering from mental disturbance or psychiatric injury when the other person is in real danger of physical injury. Generally, the burden of proving such a close tie of love and affection lies with the person who wishes to establish a claim for psychiatric illness. So, it is the secondary victims who are required to prove the fact that he has sustained a psychiatric injury because the person with whom he is in a close relationship has in fact suffered from a severe physical injury. But, when a bystander of a horrible event suffers from psychiatric injury, it becomes very difficult for him or her to establish a claim and recover damages for psychiatric injury, since such a person is not closely connected to the injured person. In the case of bystanders, it is not generally foreseeable by the defendants that such a person would suffer from psychiatric injury. However, liability could not be avoided if the accident took place very close to him and was so horrific. In Mcloughlin case, Lord Wilberforce contrasted the closest of family ties, for instance, the relationship between husband and wife and parent and child, with the ordinary bystanders and considered the potential claimants who are entitled to bring an action against the defendants for psychiatric injury. According to him, the existing law of negligence in relation to psychiatric illness generally recognizes a claim brought by the people who are in a close relationship with the primary victims, but reluctant to allow any claims by the bystanders. The reason for such unwillingness might be presumed that- the ordinary bystanders must be assumed to have sufficient strength or courage to undergo the calamities of modern life. Moreover, it cannot be expected that the defendants will compensate the whole world at large. He further took the view that, the cases where there is insufficient proximity of relationship must be very carefully considered before allowing the claimants for psychiatric injury claims[20].
Alcock v Chief Constable of South Yorkshire[21]:
There are a number of cases where the Courts continued to maintain that, in order to make a successful recovery of damage for psychiatric injury the secondary victims must satisfy proximity of relationship or close tie of love and affection with the primary victims. The case of Alcock v Chief Constable of South Yorkshire[22]is the best example which provided the criteria for recovery of psychiatric injury claims by the secondary victims. The requirement of establishing proximity of relationship with the primary victims is one of the criteria. This was a case which involved a huge disaster in the Hillsborough football stadium[23]. During a major football match in the Hillsborough ground, one part of the football stadium was crashed because the South Yorkshire police allowed an excessively large number of spectators in that part of the stadium which was already full. The police failed to control crowed at the match. As a result of the negligence of the police department, ninety six spectators died in a massive crash and more than approximately four hundred spectators were severely injured in that accident. A live television broadcast of that match was running from the ground. During the course of the disaster, scenes were broadcasted live on the television. Subsequently, breaking news in relation to the disaster was broadcasted over the television as well as radio time to time. Although, according to the guidelines of television broadcasting, none of the television channels highlighted any scenes that relate to the dying or suffering of the spectators in that disaster[24].
An action for negligence was brought into the court against the Chief Constable of South Yorkshire Police. The claimants alleged that the police constable were responsible for everything who failed to control the crowed and consequently the horrible disaster took place which not only caused the death or injury to the spectators but also caused psychiatric illness to the relatives of the deceased or injured as they were watching or hearing the news of the disasters. Among all the claimants, thirteen people lost either their relatives or friends because of death. Two of the claimants found their relatives or friend severely injured whereby one of them had his relative who escaped unhurt. Although, it was admitted by the police constable that they were negligent in performing their duties in the football stadium and it was only because of their negligence the horrible disaster took place which ended the lives of ninety six spectators and caused injury to the other spectators. But, the chief constable of South Yorkshire police claimed that they did not owe any duty of care to the claimants. There was no doubt that each claimant had a nervous shock from the horrible disaster which caused psychiatric illness to them, but the question arose whether they were entitled to establish a claim and recover damages for psychiatric illness. The preliminary issue before the court was whether the existing law allows the claimants to bring an action for recovery of damages against the defendants or not. The judge found in favour of ten out of the plaintiffs and against six of them. The unsuccessful claimants made a cross appeal to the Court of Appeal against the judge’s decision whereby the defendants also appealed against the ten successful claimants. However, the defendant’s appeal was allowed by the Court of Appeal and on the other hand it did not allow the unsuccessful claimant’s appeal. The court took the view that, none of the claimants were entitled to recover damages for psychiatric illness. After the dismissal from the Court of Appeal, ten of the claimants made an appeal to the House of Lords against the decision given by the Court of Appeal. This time the ground for appeal was whether the defendants could have reasonably foreseen the psychiatric illness suffered by the claimants or secondary victims.
In the present case, despite of being present at the stadium during the football match the claimants whose action had been rejected by the House of Lords are as follows[25]:
Brian Harrison was one of the appellants. During the match, he was on the west stand of the football stadium who knew that both of his brothers would be witnessing the match from the pens behind the goal. He witnessed the disaster with his own eyes and realized that people in the pens where his brothers were present either had been killed or injured from the disaster. After the disaster took place, the match was abandoned and he started looking for his brothers but couldn’t find them out. Until then he had no clue about his brothers whether they are dead or alive. However, after couple of hours he received a phone call from someone and learnt that both his brothers got killed at the disaster.
Another appellant, namely Robert Alcock, was present on the ground during the football match and witnessed the whole disaster from the west stand of the stadium. His brother in law and his nephew also had been present in the football ground who was watching the live match from the terrace. Initially Alcock was not worried about his brother in law as he believed that he would be watching the match from another stand of the stadium which was safe. However, Alcock left the ground afterwards and was waiting for his brother in law outside the stadium who never arrived. He then got really worried and started looking for him around but there was no trace of his brother in law. Eventually, at about midnight, having gone to the mortuary he managed to identify the bruising dead body of his brother in law.
In Alcock case, the House of Lords took the view that- the secondary victims will be entitled to establish a claim and recover damages for psychiatric injury if he can establish the fact that, the defendant could have reasonably foreseen that he would suffer from a psychiatric illness due to the negligent act as there was proximity of relationship between both the primary and secondary victims. So, according to the decision given by the House of Lords in this case, the court will only allow the secondary victims to establish a claim and recover damages for psychiatric illness if the following three elements are satisfied by the claimants. Firstly, the secondary victims must prove that the relationship between him and the primary victim is so close that it was reasonably foreseeable by the defendants that he could have suffered nervous shock through the fear of the physical injury sustained by the primary victim. Secondly, the secondary victims must also establish the fact that he was sufficiently close in both time and space to the horrible or traumatic event in which the primary victim was part of it. Finally, the secondary victim is required to satisfy the court that his psychiatric illness was a direct result of witnessing or hearing of the traumatic event or its immediate aftermath[26]. As far as the secondary victim’s claim for psychiatric illness is concerned, Lord Keith[27] in this case took the opinion that- he must establish a close tie of love and affection with the primary victim. He further considered that, such a proximity relationship or close tie of love and affection might exist between the family members or friends. According to Lord Ackner[28], if the secondary victim is a distant relative then the only way he can establish a claim is by means of showing a very close or intimate relationship with the primary victims which can be compared with the normal relationship between spouses or parent and children. However, in this case, it was held by the House of Lords that, none of the appellants were entitled to establish a claim and recover damages for psychiatric illness. The House of Lords dismissed all the claimant’s appeals since none of them was able to satisfy the recovery criteria for psychiatric illness which had been laid down in Alcock case. The appellants who had been present at the stadium during the match but failed in their action because they could not establish the fact that the primary victims were sufficiently close to them. In this case, Lord Oliver[29] took the view that-Brian Harrison, one of the appellants, lost his two brothers but still failed in his action in spite of his presence in the stadium, because he produced no evidence of close tie of love with his two brothers. Lord Oliver[30] thought that, Mr. Brian’s action failed not only because he could not provide with evidence of close tie of love and affection but also because the perception of the shocking event was gradual as opposed to the sudden appreciation by sight or sound of a horrifying event. Another appellant, namely Mr. Robert Alcock, was present in the stadium and lost his brother in law but still failed in his action as it was not reasonably foreseeable by the defendants that he would suffer psychiatric illness.  However, in this case, their Lordship took the similar opinion that, the issue of proximity of relationship should be decided on a case by case basis. According to Lord Oliver[31], it would be unfair to create a list of the category or class of people whose claim should be allowed and whose claim should be failed. Lord Jauncey[32] took the view that such a categorization would be illogical as well as arbitrary.
It seems apparent from the Alcock case judgments that the court will only emphasize on close tie of love and affection before allowing any secondary victims to establish a claim and recover damages for psychiatric illness. Although the policy of the court seems to pose a substantial barrier or obstacle to the success of claims of this sort, but the court has justified this policy by showing an intention to restrict wide range of potential claimants who can bring successful action. However, unlike the Alcock case, it was the case of McCarthy v Chief Constable of South Yorkshire Police[33]where the claimant (secondary victims) was successful in bringing an action for psychiatric illness against the defendants (Chief Constable of South Yorkshire Police). In this case, the claimant-namely Mr. McCarthy also lost his half brother in the Hillsborough disaster. He brought an action for negligently inflicted psychiatric illness against the defendants. The court allowed the claims of Mr. McCarthy as he satisfied the Alcock criteria for recovery of claims for psychiatric illness. He successfully adduced evidence that there was a very close and intimate relationship between him and his half brothers[34].
After the Alcock case, the English courts have adopted a further strict approach of the requirement of close tie of love and affection when there is an issue of successful action for psychiatric illness by the secondary victims. There are a number of subsequent case examples where the English courts have adhered to the requirement of ‘close tie of love and affection’ as established in the Alcock case. Accordingly, in the case of Robertson and Rough v Forth Road Bridge Joint Board[35], the claimants brought an action against the defendants for a horrible disaster that took place on the Forth Road Bridge. According to the facts of this case, the claimants (Robertson and Rough) and the primary victim (George Smith) used to work together with the defendants (Forth Road Bridge Board). The function of the defendants was to maintain and operate the bridge. That was a very strong windy day when the tragic accident took place. The horrible accident took place when the employees were removing a big thin piece of metal sheeting which was lying on the south-bound carriageway. They took the big metal sheet off the bridge and subsequently put that in a pick up van. While Robertson was driving the van, Smith was sitting on top of the metal sheet. Rough was also driving another van from a few feet behind the Roberson’s van. However, during the journey, a very strong wind thrown the metal sheet and Smith away while he was sitting on top of it. This took place while Robertson was driving the van on a carriageway which was high above the water. The carriageway was too high that any person fell from that distance would unlikely to survive. Consequently, Smith was killed as he fell a few feet on to the girder below the carriageway. Having witnessed the tragic death of Smith, both his workmates-Robertson and Rough suffered nervous shock. They brought an action against their employer for negligently causing psychiatric illness to them.  It was admitted by the defendants that the accident took place due to their negligence.   In this case, the court was concerned whether the claimants fall into the category of secondary victims and therefore entitled to bring an action against the defendants. The very moment Smith was being thrown off the van by the wind, Robertson did not in fact see what happened as he was driving. Although, Rough was driving another van but he came across the accident. The court further considered the issue if both the claimants suffered nervous shock as a result of witnessing the accident. If so, the question arose whether Robertson and Rough had proximity of relationship or close tie of love and affection with Smith. The relationship between the claimants and the deceased was described by the court as- Robertson was a person of fifty six years old who had known Smith for ages. Although there was a big age difference between them but they had been working together for many years. Both of them used to go out for drink once a week. They used to walk to and from their workplace quite frequently. As a result of the tragic death of his workmate he was so upset and mentally distressed. He went to the psychiatrist and took medical treatment. He became so upset with his personal life and as a result his marriage life was affected. Another claimant of this case was Rough, who was forty four years old. He had known Smith just as a colleague for few years. Due to his death, Rough was also very distressed which resulted in a psychiatric illness. Eventually, his doctor prescribed him to take anti-depressant drugs. However, as far as their claim for psychiatric illness was concerned, the court was neither convinced with the surrounding facts and circumstances that there was sufficient close tie of love and affection with the claimants and the primary victim nor was convinced that the psychiatric illness that they had sustained was reasonably foreseeable by the defendant in accordance with the recovery criteria for psychiatric illness established in the leading case of Alcock. However, in this case, Lord Hope[36] adopted the explanation given by Lord Oliver in Alcock and held that, since there was no sufficient close tie of love between the claimants and the deceased, so therefore the claimants were not entitled to establish a successful claim for psychiatric illness.
Liability for self inflicted physical injury:
Is there any liability for self inflicted physical injury which caused the claimant’s psychiatric illness? Genearlly, the defendants are not liable to the claimants for causing psychiatric injury by means of self inflicted physical injuries. The Greatorex v Greatorex and another[37]is another case in which the question arose whether a defendant owes any duty of care towards the claimant for not causing him a psychiatric injury by self inflicted injuries. In this case, the defendant was claimant’s son who had a car accident while he was negligently driving his car being drunk. He was seriously injured. The claimant was a fire officer who attended the tragic accident being informed in the course of his employment. Having witnessed the accident, the claimant later suffered from post traumatic stress disorder. The claimant brought an action against the defendant for causing psychiatric injury to him. On the basis of the facts of this case, three preliminary questions arose which were as follows:
The first issue was, whether the defendant (the primary victim/ son of the claimant) owes any duty of care towards the claimant (secondary victim) for not causing any psychiatric injury by self inflicted physical injuries. The second issue was- whether the defendant owes a duty of care to the claimant not to inflict any kind of physical injury or harm to himself. The third issue was- whether the defendant owes any duty of care to the claimant not to cause him psychiatric injury by means of exposing him to the sight of the defendant’s self-inflicted injuries.
In this case, the claimant argued that he was entitled to recover damages for psychiatric injury as he satisfied all the additional criteria for recovery which have been laid down in the case of Alcock[38].Cazalet J. agreed with the claimant that he meets all the recovery criteria that govern a claim for psychiatric injury sustained by him. But he further took the view that, there is no reported English case decision where it has been established that whether a defendant owes any duty of care towards the claimant for not causing him a psychiatric injury by self inflicted injuries. He went on stating that, due to the policy considerations, the arguments against there being a duty of care prevails over the arguments in favour of being there such a duty of care. Finally, after a careful consideration of all the issues, it was held by Cazalet J.[39] that- the defendant did not owe any duty of care towards the claimant for not causing a psychiatric injury by self inflicted physical injuries. Again, there was neither any duty of care towards the claimant not to inflict any kind of physical injury or harm to himself nor there was any duty to the claimant not to cause him psychiatric injury by means of exposing him to the sight of the defendant’s self-inflicted injuries[40].
So, however, in the light of the above case decisions it has been obvious that the secondary victim must establish proximity of relationship or close tie of love and affection in order to establish a claim for psychiatric illness. But, it has been seen from some of the above case decisions that, even after satisfying the requirement of proximity of relationship, the court still did not allow the secondary victims claim for psychiatric injury. Sometimes, the policy consideration came on the way of the secondary victims as an obstacle which did not let the courts give decisions in their favour.
CHAPTER THREE
THE PHYSICAL PROXIMITY OF THE SECONDARY VICTIM TO THE ACCIDENT OR ITS IMMEDIATE AFTERMATH:
Once the requirement of proximity of relationship is satisfied, the secondary victims must also establish the facts that he had physical proximity to the accident or its immediate aftermath. That means, unless and until the court is satisfied that the secondary victim was physically present at the very scene of the accident along with the other two requirements then a claim for psychiatric illness will unlikely to be allowed[41]. The requirement that the secondary victims must be physically present to the accident or its immediate aftermath was for the first time established by Lord Wilberforce in the case of Mcloughlin v O’ Brian[42] which subsequently had been approved by the House of Lords in the leading case of Alcock v Chief Constable of South Yorkshire[43]. To satisfy physical proximity to the accident or its immediate aftermath might be considered as another major obstacle for the secondary victims where there is an issue of establishing a claim for the psychiatric illness.
There are many examples where it has been seen that a person after sustaining a genuine shock could not recover damages for psychiatric illness only because of being failure to establish the fact that there was sufficient proximity of the secondary victim in time and place with the accident. It was the case of King v Phillips[44] in which the claimant having suffered psychiatric illness failed to establish a claim against the defendant as the court considered that the victim was far away from the accident. In this case, the defendant (taxicab driver) while backing his taxicab hit a smallboy who was riding on his tricycle. The boy sustained a very minor injury and the damage to his tricycle was nothing serious. Having heard the scream of the boy, his mother looked out of the window from about seventy to eighty yeard away of the place where the accident took place. The mother came across the tricycle which was lying underneath the taxicab but failed to see the boy. Although the boy arrived home eventually but his mother suffered from a nervous shock[45]. However, an action was brought by the mother for psychiatric injury against the defendant. The claimant argued that the defendant was under a duty of care to drive his taxicab carefully not to inflict any kind of physical and emotional damage to the people. Such a duty of care must be aplied to everyone in the vicinity particularly to a mother who had the fear for psysical safety to her children. In favour of this argument the claimant relied on the decision given by the House of Lords in the case of Hambrook v Stokes Bros[46]. The claimant further argued that the defendant by causing an accident to the boy negligently had been in breach of his duty and was liable to for all the direct consequences of the breach, no matter if the damage to the claimant was reasonably forseeable or not. In order to support this argument, the claimant relied on the decision of the case in In re Polemis and Furness, withy & Co. Ltd[47].  On the otherhand, the defendant admitted that he was negligent in relation to the accident of the boy but he denied any kind of liability or duty of care towards the claimant as far as her psychiatric injury was concerned. The defendant relied on the decision of the case in Bourhill v Young[48] with a view to support his arguement and stated that the psychiatric injury to the mother was not reasonably foreseeable as she was not within the range of reasonable anticipation. It was not reasonably foreseeable by the defendant that the claimant would suffer any kind of mental damage in such a way. Bourhill v Young[49] was a case of Edinborough fishwife who suffered nervous shock as a result of the negligence of the defendant motorcyclist who brought about a collision and made the claimant so upset that she had a miscarriage. The court did not allow any damages to the claimant for her psychiatric injury.
However, considering the surrounding circumstances of the present case (King v Phillips), McNair J.[50] stated that the present case is not a margianl one. It was held by the court that (according to the decision of Bourhill case), the defendant owes no liability towards the claimant although there was a liability in relation to the accident of the boy. He took the view that, since the claimant was watching the scene of the accident from quite a few distances away, so it was not reasonably foreseeable by the defendant that if he backed his taxicab negligently the claimant would suffer a nervous shock. The court considered her to be outside the area of potential danger. The claimant appealed to the House of Lords against the decision given by McNair J. Singleton LJ.[51] took the view that, if the two cases of Hambrook v Stokes Bros[52] and In re Polemis and Furness, withy & Co. Ltd[53]on which the claimant relied on are considered then the there is every possibility that the decision goes in favour of the claimant. But the fact of the present case must be considered in accordance with the decision of Bourhill v Young[54] where the House of Lords provided the test-if the defendant have reasonably foreseen any damage to the claimant then he owes a duty of care and liable for negligently causing personal damage. If it was not reasonably forseeable then the defendant owes no duty of care to the claimant and there is no liability for negligence on the part of defendant. So, in this situation- Singleton LJ. was reluctant to interfere with the findings of the court and agreed with the decision given by McNair J. According to him it was a matter of common sense that-the defendant while backing his taxicab have not reasonably foreseen any personal injury to the claimant who witnessed an accident and suffered nervous shock from a house some seventy to eighty yards away up a side street. There is indeed a sense of remoteness in this case. Moreover, Denning LJ[55] took the view that, the defendant was under a duty of care to the boy where there was a breach of that duty of care, but as far as the claimant’s nervous shock was concerned, it was not reasonably foreseeable by the defendant that the claimant could be suffered from a nervous shock as a result of the accident. He continued that, the claimant’s nervous shock was too remote as a head of damage. So, finally, the House of Lord dismissed the appeal made by the claimant.
There are a number of subsequent cases which might be contrasted with the decision given in the case of King v Philips. In those cases the court still allowed the claimants to establish a claim and recover damages for psychiatric injury notwithstanding the fact that the secondary victims were not actually present at the scene of the accident. The best example is Boardman and Another v Sanderson and Another[56]. Acording to the facts of this case, there was a garage premises in the Newcastle are which was owned by Richard Percival, Keith keel and Henry George Block. On August 18, 1955, the defendant, namely Mr. Sanderson went to the garage along with the claimant and his son for the purpose of collecting his car as they had decided to go out for holiday. After ariving to the garage, the claimant was asked by the defendant to repay the garage bills before he get his car released from that garage. The defendant’s car was standing inside the garage and he started backing the car out of the garage. When the defendant started backing his car out, Keith Keel began to give directions to the defendant from behind the car in order to prevent any collision with the pillar or any other cars. So according to Keith’s directions the defenadant was backing his car out and paying attention to him. The claimant’s eight year old son was very close to the near side door of the car and was playing there. While backing his car out of the garage, the defendant ran over the feet of the little boy which caused him injuries. The boy screamed loud enough and tried to take his foot out the car’s wheel by kicking the car with the other foot. Having heard the scream the father (claimant) rushed into the spot and found his son with his foot trapped by the car’s wheel. The father immediately started helping his son to release his trapped foot out. The father subsequently suffered nervous shock as a result of witnessing the accident. However, an action for psychatric injury was brought by the claimant against the defendant and the owners of the garage[57].
It was held by Salmon J.[58] that the defendant was in breach of his duty of reasonable care and the claimants were entitled to recover damages. Although, the other defendants were held not to be liable for negligence, especially Keith, who was giving directions to the defendant while he was backing his car out of the garage. The defenadant appealed against the decision of Salmon J. The defendant argued that, there was no negligence on his part as far as the claimant’s psychiatric illness was concerned. He submitted that the court must take into account the decision given by the House of Lords in the case of Bourhill v Young[59]before reaching its final decision in the present case. He argued that, in Bourhill’s case, the fishwife was not entitled to recover damages for psychiatric illness since she did not see the actual accident at the time it took place but only saw the outcome of it afterwards. In that case it was not reasonably freseeable by the defendant that the claimant was going to suffer from psychiatric illness after witnessing the accident. Similary, the defendant argued that, in the present case, the claimant was far away from the actual place of the accident and did not see what happened there. Having heard the boy’s scream the claimant rushed there and saw the accident which caused psychiatric injury to him. So the defendant submitted that, since the claimant was not present at the place where the accident took place, his action against the defendant should not be allowed by the court. However, Ormerod LJ.[60]did not agree with the arguments put by the defendant but he agreed with the decision given by Salmon J. He took the view that, there was no negligence on the part of Keith Keel but the defedant was negligent and committed a breach of his duty of care. His Lordship continued that, the court will not interfere with the decision given by Salmon LJ and accept that the defendant was liable for the boy’s accident which resulted in a psychiatric injury to the claimant. His Lordship further continued that, the present case is distinguishable from the case of King v Phillips[61]. In that case, the defendant did not reasonably foresee that the claimant would suffer from psychiatric injury as she was too far away from the actual place of the accident. But, according to the facts of the present case, the defendant had the knowledge that the claimant was not far away from the place of the accident, so therefore it was reasonably forseeable by the defendant that the father would be shocked after witnessing the accident in which his little son was involved. So, after a very careful consideration of the facts and surrounding circumstances, his Lordship dismissed the defendant’s appeal.
Similarly there are some other cases where the claimants were not actually present at the scene of the accident but the court still held the defendant liable for negligently inflicting psychaitric injury to the claimants. In the case of Benson v Lee[62], the claimant was informed that her son had an accident and sustained injuries. Having heard this, the claimant ran approximately hundred yards from her place in order to see her son who was eventually died. As a result, the claimant suffered from a nervous shock. It was held by the court that the claimant was entilted to establish a claim and recover damages for psychitaric injury as it was reasonably foreseeable by the defendant[63]. Again, in the case of Fenn v City of Peterborough[64], the claimant arived home couple of minutes after a gas explosion in which he lost his three children. The court held that the defendant was liable for negligence and allowed the claimant to recover damages for psychaitric illness as the mental injury to the claimant was reasonably foreseeable by the defendant[65].
Despite of establishing a close tie of love where the secondary victims fails to satisfy the requirement of proximity in time and place with the accident, the court will not entilte them to recover damages for psychiatric illness. The secondary victims must be close to the accident both in terms of time and place. It does not merely include the very accident that caused the death or injury to the primary victims but it also includes the immidiate aftermath of the accident[66]. The requirement of immediate aftermath principle was firmly established in the case of Mcloughlin v O’ Brian[67]. In this case, notwithstanding the fact that the claimant arrived in to the hospital with a view to see her injured family membrs after two hours, the House of Lords still recognized that as an immediate aftermath. In the present case, the claimant’s family members including her husband and three children had a severe road accident. This was an event of 19th October 1973. The accident took place when the victim’s car collided with the defendant’s lorry which was itself collided with another lorry. Due to the accident, the claimant’s husband suffered from bruising and the other children suffered from severe physical injuries and shock. The children had severe head and face injuries, concussion and fractures. One of the children had died due to sustaining severe physical injuries almost immediately. At the time of the accident, the claimant was at home that was two miles away from the place of the accident. About after two hours she was informed by a neighbour of the road accident in which her family members were involved. The victims were taken to the nearest hospital by that neighbour. The caimant was summoned by the hospital authority in order to see her injured family members. As soon as she arrived to the hospital, she was informed that her youngest daughter was killed. Afterwards she went down to the corridor and came across one of her children crying who had fer face cut and discoloured with mud and soil. After that she found her husband injured and covered with mud and oil. Then she went to see another child and found him unconscious. As a result of experiencing such a dreadful event she subsequently suffered severe nervous shock resulting in the form of psychatric illness. In 1997, the claimant initiated an action for psychiatric illness against the defendant. She alleged that, as result of suffering from psychiatric illness she had a change in her personality that seriously affected her capabilities as a mother and wife. The defendant admitted that they were negligent in relation to the death of her daughter as well as injury to her rest of the family members but simply denied any kind of liabilty for negligently causing psychiatric injury to her.
However, the trial judge, Boreham J[68], took the view that- although the claimant was a person of reasonable fortitude and the mental condition that she had suffered due to shock was different from mere grief and sorrow, but it was held that the defendant was not liable for causing psychiatric injury to her because it was not reasonably foreseeable. The claimant appealed against the decision of the trial judge to the Court of Appeal. The Court of Appeal upheld the judgement that was delivered by Boreham J but on different ground. According to Stephenson LJ[69], although the claimant’s psychiatric illness was reasonably forseeable by the defendants and they owed a duty of care to the claimant, but it was policy considerations that hampered the claimant from establishing a claim and recover damages for psychiatric illness. Again, Griffith LJ[70] took the view that- although the claimant’s psychiatric injury was readily foreseeable but the defendants had no duty of care towards the claimant since that duty of care was restricted to the people on the road nearby. Both the judgements given by Stephenson and Griffith LJ was appreciated and therefore agreed by Cumming-Bruce LJ.[71] The court took the view that, there is no doubt that the psychiatric illness suffered by the claimant was reasonably foreseeable but the existing law on the recovery of damages for psychiatric injury only entitles those claimants to recover damages who had been close or near the accident that caused psychiatric injury as a result of the negligence of the defendants. According to the facts and circumstances of the present case, the clamant was not close to the place of the accident who was informed by someone of that after two hours. So, finally it was held by the majority of the Court of Appeal that the defendant owed no duty of care to the claimant even though her psychiatric injury was reasonably foreseeable. Therefore the claimant’s appeal was dismissed by the Court of Appeal.

[1] Nicolas N (2002), “A Remedy for Nervous Shock or Psychiatric Harm- Who Pays?”-Volume 9, Number 4.
[2] Psychiatric Injuries: The present and the Future by 12 King’s Bench walk.
[3] [1970] 1 All ER 1074
[4] [1984] 1 ALL ER 997
[5] [1997] 3 WLR 1194
[6] [1992] 1 AC 310, 410
[7] ‘Nervous Shock-when is it compensable? By Christopher Gardner, QC, Lamb Chambers.
[8] [1996] AC 155
[9] NJ Mullany, “Psychiatric damage in the House of Lords- Fourth time Unlucky: Page v Smith” (1995) 3 Journal of Law and Medicine 112.
[10] Kay Wheat (1998), “Liability of psychiatric illness- the Law Commission Report” Journal of Personal Injury Litigation.
[11] [1992] 1 AC 310, 410
[12] Teff, H (1992) “Liability for Psychiatric Illness after Hillsborough” 12 Oxford Journal of Legal studies 440.
[13] N 1.
[14] “Secondary Victims and Nervous Shock” by M Dunne (2000) BR 383.
[15] Kay Wheat (2003) “Proximity and Nervous Shock” –Common Law World Review 32 4 (313).
[16] [1925] 1 KB 141
[17] As per Mr. Bankes, Atkin and Sargant L.JJ [1925] 1 K.B 141 at page 142.
[18] [1983] 2 AC 410
[19] As per Lord Wilberforce [1883] 1 A.C. 410 at Page 411.
[20] Michaell A Jones, “Liability for Psychiatric Illness – More Principle, Less Subtlety?” [1995] 4 Web JCLI
[21] [1992] 1 AC 310, 410
[22] [1992] 1 AC 310, 410
[23] Davie M (1992) ‘Negligently Inflicted Psychiatric Illness: The Hillsborough Case in the House of Lords’ 43 Northern Ireland Legal Quarterly 237.
[24] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition.
[25] As per Parker LJ [1991] 3 All ER 88 at 92-94.
[26] Davie M (1992) ‘Negligently Inflicted Psychiatric Illness; The Hillsborough Case in the House of Lords’ 43 Northern Ireland Legal Quarterly 237.
[27] As per Lord Keith [1992] 1 AC 310 at page 397.
[28] Ibid, 398, per Lord Ackner.
[29] As per Lord Oliver [1992] 1 AC 310 at page 417.
[30] N 35.
[31] As per Lord Oliver [1992] 1 AC 310 at page 415-416.
[32] As per Lord Jauncey at page 422.
[33]Unreported, 11th December 1996
[34] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition.
[35] [1995]S. C 364.
[36] As per Lord Hope [1995]S. C at page 364.
[37] [2000] 4 All ER 769 QBD
[38] N2.
[39] As per Cazalet LJ. [2000] 4 All ER 769 at page 770.
[40] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition: Publication date 2004.
[41] Kay Wheat (2003) “Proximity and Nervous Shock” –Common Law World Review 32 4 (313).
[42] [1983] 2 AC 410
[43] [1992] 1 AC 310, 410
[44] [1953] 1 All ER 617.
[45] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition.
[46] [1925] 1 KB 141 CA
[49] N 34
[50] As per McNair J. [1952] 2 All ER 459 at page 460.
[51] As per Singleton LJ. [1953] 1 All ER 617 at page 621.
[52] N 34.
[53] N 36.
[54] [1943] A.C.92
[55] As per Denning LJ [1953] 1 All ER 617 at page 625.
[56] [1964] 1 W.L.R 1317
[57] A Selection Of Cases Illustrative of the English Law of Tort by Kenny, Courtney Stanhope: Fifth Edition.
[58] As per Salmon J. [1964] 1 W.L.R CA 1317 at page 1317.
[59] N 37
[60] As per Ormerod LJ [1964] 1 W.L.R CA 1317 at page 1320.
[61] [1953] 1 QB 429, CA
[62] [1972] VR 879
[63] Tort Law; Text, Cases and Materials by Jenny Steele  2007.
[64] (1976) 73 DLR (3d) 177.
[65] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition.
[66] Michaell A Jones, “Liability for Psychiatric Illness – More Principle, Less Subtlety?” [1995] 4 Web JCLI
[67] [1983] 2 AC 410
[68] As per Boreham J. at page 411.
[69] As per Stephenson LJ [1981] 1 All ER 809 at page 823.
[70] As per Griffith LJ [1981] 1 All ER 809 at page 829.
[71] As per Cumming Bruce LJ. [1981] 1 All ER 809.


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