Duty of Care: Nervous Shock and Psychiatric Injury

Duty of Care: Nervous Shock and Psychiatric Injury

The law has special duty in law restrictions where the claimant has suffered nervous shock. The distinguishing feature of these cases is how the damage is caused rather than the nature of the harm. Nervous shock cases are those where the damage is caused by psychiatric means. Hence I prefer the term nervous shock because it more accurately describes that we are talking about an injury caused by psychiatric means.

The following case nicely illustrates the distinguishing feature of nervous shock cases:

          Donachie v CC Greater Manchester [2004] EWCA Civ 405

The claimant was a police officer who alleged he had been put in an extremely stressful situation due to his superiors' incompetence. The police officer claimed that this had triggered a stroke. Even though he was suing for a physical injury, the case was treated as a nervous shock case because the stroke was caused by psychiatric means.

I will refer to the following example throughout the article.

EXAMPLE: There are three people in a car: the driver Alan, and two passengers: Bob and Carla. The car veers off the road to avoid an oncoming lorry being driven dangerously. The car crashes into a tree. Bob is in the front passenger seat at the time of the crash, and Carla is asleep in the back of the car and only awakes after the collision. Alan is seriously injured while Bob and Carla emerge physically unscathed. Alan's wife, Debbie, is travelling in another car half a mile behind Alan's car when the accident happened. Debbie arrives at the scene shortly after the accident and sees Alan unconscious in the driver's seat covered in blood. Alan, Bob, Carla, and Debbie all later develop PTSD.

Consequential psychiatric illness

Psychiatric illness which is consequential on physical injury to the claimant's person or property is not subject to any special restrictions at the duty in law stage. Thus, because Alan was physically injured in the accident, he can recover damages for his PTSD as part of his personal injury claim no problem.

The same goes for psychiatric illness consequential on damage to property owned by the claimant, e.g. a dog. The nervous shock must be consequential on property owned by the claimant himself. If the property is owned by someone else, the claimant will have to establish an independent duty. However, even if a duty is established for nervous shock consequential on property damage, the claimant still needs to pass the remoteness hurdle. The claimant will still need to show that the nervous shock was a reasonably foreseeable consequence of the damage to the property.

The requirement of a recognised psychiatric illness

The claimant will only have an action in negligence if the mental harm amounts to a clinically recognised psychiatric illness. e.g. PTSD or clinical depression. Here the courts just defer to the psychiatric profession. Accordingly, normal human emotions like grief sorrow anxiety are not covered.

          Reilly v Merseyside Regional Health Authority (1995) 6 Med LR 246

The claimants got stuck in an overcrowded hospital lift for an hour due to the defendant's negligence, which caused them to suffer anxiety and distress. The court rejected the claim because mere emotional distress without lasting psychological damage is not actionable in negligence.

Strictly speaking, the requirement of a recognised psychiatric illness is a question of what amounts to damage. But in practice, it is subsumed into or looked at alongside the duty in law stage.

The distinction between primary and secondary victims

The next question to ask is whether the claimant is a primary or a secondary victim.

          Alcock v CC South Yorkshire [1992] 1 AC 310

After this case, considerable importance was attached to whether the claimant was a primary or secondary victim. Primary victims do not have to worry about the duty in law question. Secondary victims are subject to special restrictions at the duty in law stage.

          Page v Smith [1996] 1 AC 155

In this case, the court defined what it means to be a primary and secondary victim. Primary victims are victims who were physically endangered by the defendant's negligence. Secondary victims are not physically threatened by the defendant's negligence and suffer nervous shock because of what happened to someone else. This focus on physical endangerment means that there is only one way for the claimant to be classed as a primary victim. It must have been reasonably foreseeable to the defendant at the time of his alleged breach that his negligence might result in the claimant suffering physical injury.

Page v Smith's facts are that the claimant was involved in a minor car accident caused by the defendant's negligence. This car accident caused the claimant no physical injury; but, it did lead to the reoccurrence of his chronic fatigue syndrome. The House of Lords held that the claimant was a primary victim because physical injury to the claimant had been a reasonably foreseeable result of the defendant's negligent driving. Thus, the claimant was entitled to recover for the mental harm that he had suffered.

          Bailey and Nolan, The Page v Smith Saga: A Tale of Inauspicious Origins and Unintended Consequences [2010] CLJ 495

Nolan does not think that this is a constructive way of drawing the distinction between primary and secondary victims. He thinks a preferable approach to the distinction would be to define secondary victims as those who suffer psychiatric damage because of what happened to someone else. Primary victims would be anyone for whom that is not the case.

Nolan believes that this has three advantages over the Page v Smith approach. First of all, it provides a more straightforward explanation of the distinction and is just a more straightforward distinction.

Second, it clarifies why we use the language of secondary victims. It explains why claims by people who suffer psychiatric illness because of things like stress at work are not subject to any special duty in law restrictions. Nolan's distinction explains why these people are effectively treated by the law as primary victims even though they were not physically endangered by the defendant's negligence.

Third, the Page v Smith approach can lead to misclassifications. Cases where even though the claimant was physically endangered by the defendant's negligence, the psychiatric injury was actually caused by seeing what happened to someone else.

          Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146

The claimant suffered nervous shock after seeing one of his workmates electrocuted when the scaffolding pole that his workmate was carrying came into contact with an overhead electricity cable. Evans LJ in CA held that the claimant could recover as a primary victim from his employer because the claimant had been in the area of physical danger created by the employer's negligence. It could just as easily have been him that had been carrying the scaffolding pole. So he was classified as a primary victim even though it was the sight of his workmate being electrocuted that triggered the nervous shock. It seems like the claimant here should have been classified as a secondary victim rather than a primary victim, and Nolan's distinction would do this.

So going back to the original example, according to Page v Smith, Bob and Carla are primary victims even if their PTSD was caused by what happened to Alan. Debbie is a classic secondary victim.

Secondary victims in general

For an extended period, secondary victims' claims were dealt with at the duty in fact stage by asking whether psychiatric injury to someone in the claimant's position was reasonably foreseeable on the facts. After some uncertainty in the 1980s following the House of Lords decision in McLoughlin v O'Brian, the House of Lords in Alcock v Chief Constable of South Yorkshire Police unanimously agreed to impose special limits on claims by secondary victims as a matter of law.

          McLoughlin v O'Brian [1983] 1 AC 410

In McLoughlin v O'Brian the House of Lords could not agree whether secondary victims' nervous shock claims should be subject to special restrictions at the duty in law stage.

Lord Wilberforce in McLoughlin argued that policy considerations, particularly the floodgates concern, required that such special limits be laid down. He felt that these limits should be focused on three things: 1) the closeness of the claimant's relationship with the immediate victim, i.e. Alan's marriage to Debbie. 2) the claimant's proximity in time and space to the incident. 3) the means by which the shock was caused.

Lord Bridge argued that nervous shock cases should be treated the same as claims of physical injury. The claimant would have to prove that her psychiatric injury had been reasonably foreseeable on the facts, i.e. a duty in fact rather than duty in law question. Lord Bridge would simply have taken Lord Wilberforce's factors into account when assessing the foreseeability question.

This disagreement between Lord Wilberforce and Lord Bridge clearly shows how judges can differ on whether to treat an issue as a question of law in the duty in law stage; or, as a question of fact in the duty in fact stage. Following Lord Wilberforce, you tell lower courts that they have to apply these restrictions in every case. Following Lord Bridge, you tell the lower courts that the question is just about factual foreseeability in each case. Each judge then has to make that decision on the facts. It is hard to interpret some of the other judges in Mcclaughlan, but it is clear that there is a majority for the Bridge view.

          Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5

A decade later we get the Alcock case, arising out of the Hillsborough football stadium disaster. In this case, the House of Lords unanimously agreed with Lord Wilberforce and imposed special limits on secondary victims' claims as a matter of law.

The restrictions from Alcock centre on two things: 1) the class of person whose claims are recognised 2) the claimant's proximity in time and space to the accident, also encompassing the means by which the shock was caused. The House of Lords also made it clear that secondary victims have to establish that their injuries were induced by shock. Primary victims do not have to establish this.

Secondary victims: injury must be induced by shock

The law gives no damages if the psychiatric injury was not induced by shock … "shock", in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.

          Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 400-401 (Lord Ackner)

So shock is the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind. This means there can be no claim for depression caused by looking after a victim injured by someone else's negligence.

It is not entirely clear what the logic behind this requirement is. Moreover, it has been criticised for being arbitrary and based on discredited psychiatric notions dating back to the nineteenth century. One justification for the requirement might be that in cases where there is an element of shock, the causal connection between the negligence and the psychiatric injury is likely to be clear. Whereas in long term care cases, there could be other things causing or contributing to the claimant's depression.

Secondary victims: classes of person whose claims are recognised

(i) Persons with a close tie of love and affection to the immediate victim.

In Alcock, the House of Lords held that the question of whether there was a close tie of love and affection should be dealt with as a question of fact in each case. There is no fixed list of categories which are ones of love and affection. Still, there is a presumption favouring a close tie of love and affection where the relationship is spousal or parental, but a presumption against a close tie when it comes to other relationships. In Alcock itself, the House of Lords rejected a claim from the brother of someone killed at Hillsborough because his relationship was not sufficiently close. So this seems to be a strict requirement, the sibling category was not enough, though a court today might be more lenient.

(ii) Rescuers

          White v Chief Constable of South Yorkshire Police [1999] 2 AC 455

In Alcock, the House of Lords seemed to favour a broad definition of rescuers. But in White v CC South Yorkshire, they held that only rescuers who exposed themselves to danger in the course of the rescue or reasonably believed that they were doing so, could bring claims.

White's difficulty was that in Alcock, the House of Lords had rejected all the claims brought by relatives of those killed. Then in White, they were faced with claims bought by police officers who had been rescuers at Hillsborough but who were also part of the police force responsible for the disaster, so there was a worry of public perception.

The White requirements are distinct to the Page v Smith requirements. In Page v Smith, the question is whether the defendant could reasonably foresee that the rescuer would be in danger. This is not whether the rescuer was in fact in danger or reasonably believed that she was (White). So it does not follow that if the White requirements are satisfied, the Page v Smith primary victim requirement is also satisfied.

(iii) Involuntary participants

To be an involuntary participant, the claimant must have been placed by the defender's negligence in a position where he would consider himself personally responsible for the accident. Such that the psychiatric injury is caused by anxiety and guilt about the events.

          Robertson v Forth Road Bridge Joint Board 1996 SLT 263, 271 (Lord Allanbridge)

So, involuntary participants are those who are not to blame for what happened but played some causal role, and as a result of that role, they feel terrible about the incident.

A classic example is a train driver who kills a railway line worker because of the worker's supervisor's negligence. The driver is not to blame but will feel traumatised and guilty anyway.

          Dooley v Cammell Laird [1951] Lloyds Rep 271

The claimant was a crane driver who suffered nervous shock and then a psychiatric illness. He suffered this after the defendant's negligence led to the load being carried by his crane dropping into the hold of a ship where men were working.

If you don't fall into one of these three secondary victim categories, you have no claim.

Secondary victims: proximity in time and space

The requirement of proximity in time and space is most easily satisfied when the claimant perceives the event with his own unaided senses.

(i) The 'immediate aftermath'

The requirement of proximity in time and space is satisfied when the claimant arrives in the event's immediate aftermath. Think Debbie in the example case. The most crucial factor in deciding what constitutes the immediate aftermath is the time gap between the accident and the claimant's arrival at the scene. In McLoughlin v O'Brian the House of Lords held that a time gap of two hours was just about within the immediate aftermath. In Alcock, a time gap of eight hours was held to be too long, and the court said that McLoughlin was a borderline case.

The time gap is not necessarily the only consideration. Another consideration mentioned as significant is the victim's state. The closer the victim's state is into the state they were in when the accident originally happened, the more likely a court will find that the claimant arrived in the immediate aftermath.

(ii) Third party information

The House of Lords made it clear in Alcock that secondary victims won't be allowed to recover damages if they suffer nervous shock simply because they are told of the event by a third party.

(iii) Television pictures

In Alcock, the House of Lord said that where the claimant has seen the accident on TV, recovery will not generally be possible. But, there might be an exception if the pictures were 1) live pictures and 2) if it was certain from watching the pictures that the claimant's loved one had been killed or injured. For example, a hot air balloon filled with children that explodes.

Some of the claimants in Alcock had been watching the events at Hillsborough on TV. They were held not to have satisfied the proximity in time and space requirement because the pictures transmitted were just general pictures of the scene and had not shown individuals' suffering. It would have been contrary to broadcaster's code of ethics to have shown individuals.

The problem on the facts of Alcock was that the necessary element of shock was missing. Obviously, the Hillsborough disaster pictures would produce acute anxiety in those watching who knew that they had relatives and loved ones at the ground. But, the shock would have only come later when they were informed that their loved one had in fact been killed or injured. The shock itself came from being told by a third party rather than from the pictures. The point of the balloon example is that the shock of the death of someone's child comes at the time of the pictures.

There is a weird logic to this, that does not necessarily defend it, but you should understand it. The fundamental essence of Alcock on TV pictures is that the element of shock must come from the immediate communication. For example, with social media, which is not mediated by a third party, there might be an argument for permitting recovery because there is a more immediate connection.

Secondary victims: two further issues

(i) Self-inflicted injury

Should a person who deliberately or negligently injures himself owe a duty to someone who suffers a psychiatric injury as a result, i.e. can a secondary victim sue the immediate victim.

          Greatorex v Greatorex [2000] 1 WLR 1970

The defendant injured himself in a road accident caused by his own careless driving. His father was one of the fire officers who attended the scene and later developed PTSD. The father satisfied Alcock as he had a close tie of love and affection and arrived in the aftermath.

But, the court held that recovery against the immediate victim should not be permitted, giving two reasons. 1) the imposition of a duty of care in this situation would be a considerable limitation on an individual's freedom of action. For example, someone could be liable for the trauma his suicide caused to others. So, there was a concern about the imposition of a duty of care in this situation limiting self-determination. 2) The Alcock restrictions mean that claims against immediate victims would necessarily be claims against loved ones, which raised the possibility of undesirable intrafamilial litigation.

The court's reasoning in Greatorex v Greatorex seems flawed. First, the premise that claims against immediate victims will necessarily be claims against loved ones is false. Rescuers and involuntary participants do not have to be family members. Second, this type of claim would only in practice happen where the immediate victim was insured, as was the case in Greatorex v Greatorex. This mitigates litigation's damage to intrafamilial relations as the immediate victim himself would not actually be footing the bill.

The rule also leads to problems, particularly where both the immediate victim and the third party are to blame for the accident. Since the claimant can sue the third party, under the principle of joint and several liability, the claimant can recover in full from the third party. However, applying Greatorex v Greatorex, the third party cannot recover the immediate victim's contribution. According to Greatorex v Greatorex, the immediate victim did not commit a tort. And, only tortfeasors are liable under joint and several liability.

So it would be better to do away with this restriction on claims against immediate victims. The arguments for the restriction have not been convincing, and they lead to problems. Note, the restriction has not been applied in Australia. President Mason of the New South Wales Court of Appeal said that there is no reason in principle or logic for excluding claims against immediate victims.

          FAI General Insurance Co Ltd v Lucre [2000] NSWCA 346, (2000) 50 NSWLR 261

The defendant negligently caused a collision with a truck. The truck driver suffered PTSD as a result of watching the defendant's death and sued the defendant in negligence. The court held that the duty is not negated simply because the primary victim is the defendant or the defendant is dead. But, the claimant needed to be more than a mere bystander — he played a causal role and so felt unresolved anxiety and guilt over the accident.

(ii) Is the secondary victim's claim dependent on the right of the immediate victim to sue the defendant?

This is not a question on which there's a decided case. Still, it does seem to follow from the cases we have that the secondary victim's claim is not dependent on the immediate victim's right to sue. The secondary victim's claim can't be parasitic on a claim by the immediate victim because the secondary claimant can recover even if the immediate victim escapes unharmed and would not have an action against the defendant.

          Dooley v Cammell Laird [1951] Lloyds Rep 271

A crane operator suffered a psychiatric injury when the rope holding the cranes load snapped, and the load then plunged into the hold of a ship where men were working. As it happened, none of the men who were working in the hold were injured. The possibility that the men had been killed or injured is what triggered the psychiatric injury. Because none of the men in the hold were hurt or killed, none of them would have a claim against the defendant. But, this was nonetheless irrelevant to the claimant's action.

          Law Commission No 249, Liability for Psychiatric Illness (1998), paras 2.22-2.24

Law Commission also argued in its report that the defendant owes the secondary victim an independent duty of care. So, the secondary victim's action is not parasitic on a claim by the immediate victim.

Policy considerations and reform

Do we need to have special limits on recovery for nervous shock? The restrictions on secondary victims are usually justified by reference to the floodgates argument. This is the concern that a single negligence incident could land the defendant with an indeterminate and thus uninsurable liability, and that uninsurable liabilities are a bad idea. The floodgates concern is seen as a potential problem in this area because the psychiatric consequences of the defendant's negligence are not limited by a physical chain of causation. So, there is the possibility that a disaster like the Hillsborough disaster that is being broadcast on live TV could lead to thousands of claims.

The Law Commission looked at this area in the aftermath of the Alcock case. They acknowledged the force of the floodgates argument but favoured the liberalisation of some of the requirements governing secondary victims.

The Commission would retain the requirement of a close tie of love and affection but would change its application. They would replace the Alcock approach to the tie of love and affection with a fixed list of relationships that would automatically qualify, including siblings and cohabitants. If you didn't come within the fixed list, you'd have to show on the facts that your relationship was sufficiently close.

The Commission recommended using legislation to abolish the requirement that the injury is shock-induced and the requirement of proximity in time and space. Under the Law Commission's proposals, the only restriction would be the close tie of love and affection and even that would be liberalised.

          Department for Constitutional Affairs, The Law on Damages (2007) ch 3

It took the government a decade to respond to the Law Commission proposals. When they did, they rejected the proposals on two grounds. First, the reform would lead to a significant increase in insurance premiums; and second, leaving the issue to the courts rather than legislating would preserve more flexibility. So, legislation to reform this area is now very unlikely.