It is often said that the common law is flawed when operating in an area with conflicting interests, especially when it involves non-legal or political issues. Having to consider the rule of precedent, in which courts are reluctant to overrule past decisions, pressing legal issues often fail to be addressed and this could lead to confusing outcomes being derived at. This is especially true when courts themselves, in efforts to appease public opinion, delve into political considerations. Thus, it can be said that judicial pragmatism is chosen over coherent legal principles and the interests of justice in the law relating to psychiatric injury. It is however easy to catalogue the reasons for such reluctance and caution on the part of the courts. This is because in this area of the law, there is great difficulty of putting a monetary value on such harm, coupled with the risk of fictitious claims and excessive litigation (floodgate argument), and there are also problems of establishing the link between the injury occasioned to the claimant and the negligence of the defendant. This essay aims to identify how the judges with case laws, create the standard tests while assessing and determining situations when damages could be awarded to claimants suffering from psychiatric injury, and placing limitations on claims with the use of control mechanisms in order to curb the ‘floodgates’.
The law relating to psychiatric injury has undergone considerable development. Initially, the law is such that claims to negligence actions regarding psychiatric injury are dismissed as the courts treated such claims with a great deal of circumspection. However, in recent years, the courts are more prepared to recognize psychiatric injury as a claim in the tort of negligence. Subsequently, the question of drawing the ambit of liability comes in. As noted by Sir Thomas Bingham, this area of the law is ‘one of the most vexed and tantalising topics in the modern law of tort’.
The courts must consider not only the rule of precedent, but also policy considerations in the interests of the public and justice. The operation of the rule of precedent basically involves the doctrine of ‘stare decisis’, which given its literal meaning, translates as ‘to stand by the decided matter’. Courts are reluctant to overturn or depart from a former decision as they feel that this should be left for the Parliament to make any legislative changes. “Without some uniformity of approach to cases of psychiatric harm under English Law, there is likely to be further piecemeal development of illogical, unjust and seemingly arbitrary distinctions”. Therefore, on one hand, the courts should be mindful because it would be unfortunate that interests of justice are declined on the basis that the relevant reliance interest is not a compelling one for departing from the doctrine of stare decisis. There would be a danger disturbing the current state of public tranquillity if too much weight is given on the public passions.
The first hurdle in which all claimants must cross in claiming negligence for psychiatric injury is that the injury sustained must be one which falls within the recognised categories. In McLoughlin v O’Brien, Lord Bridge noted that no damages would be granted for ‘emotional distress’ and for a claim based on psychiatric injury, it is of paramount importance that the plaintiff establish what he is suffering from is a ‘positive psychiatric illness’, not merely ‘grief or distress’ as otherwise the latter would not be compensable.
Next comes the classification of the victims. In the landmark case of Alcock v Chief Constable of South Yorkshire Police, Lord Oliver postulated two classes: primary and secondary victim as an attempt to limit the number of claims. The first category relates to those who are involved directly mediate or immediately as a participant. The second relates to those who were not at risk of any physical injury but are no more than a passive or an unwilling witness of injury occasioned to others.
Initially, claims were limited only to those who were fearful for their own safety. Subsequently, this was expanded by Page v Smith which became the key case in determining primary victims. In this case, the claimant could recover damages from a minor traffic accident caused by the defendant’s negligence which has triggered the recurrence of his Myalgic Encephalomyelitis (ME) even though he did not actually suffer any physical injury. The effect of this case is such that as long as physical injury was foreseeable, however trivial it may be, and even if it did not in fact occur, the claimant can recover for psychiatric injury although it is not itself foreseeable. Thus, if the former is foreseeable, the claimant is entitled to claim for both. However, critics suggest that it is not long before this case reaches its denouement as it has a restrictive effect such that claimant must be within the zone of physical danger.
An exception to this rule is that in the case of rescuers, having rendered assistance and thus sustained psychiatric injury due to the catastrophe he witnessed. In Chadwick v British Railways Board, the court held that damages were recoverable because the defendant owed a duty of care because the existence of a rescuer is foreseeable. However, the entitlement of rescuers to such claim is limited to the extent that ‘professional rescuers’ such as the police officers would not be able to recover. Thus, in Frost/White v Chief Constable of South Yorkshire, the courts denied the claimants of their claim on the grounds that the police officers cannot be regarded as persons of ordinary phlegm as they are supposed to be hardened to such events. They are expected to be better able to cope with similar occasions as such.
On the other hand, secondary victims’ recoveries are limited by a few policy-orientated control mechanisms. For a claim to succeed, there must be a sufficient proximity of a close relationship between the parties(class of persons), the closeness of the claimant physically and temporarily to the incident will also be considered, as well as the means in which the shock is occasioned. Parent-child and between spouses, there exists a rebuttable presumption of a relationship of close proximity. However, the determining factor remains the existence of a close relationship between the primary victim and the claimant. As per Lord Wilberforce, ‘the closer the tie, the greater the claim for consideration’. His Lordship also did not rule out the possibility of friends or relatives whose relationship is so intimate that their relationship is comparable to that of family.
The next factor to consider for claims under secondary victim would be the proximity in space and time of the claimant to the incident. McLoughlin has expanded this requirement for those who come within the immediate aftermath of the said event because in that case, Mrs McLoughlin was not actually present at the scene of the accident. But the question remains, how far does this ‘immediate aftermath’ extend? While the two hours in McLoughlin was sufficient, the identification of the body after about eight hours in Alcock was deemed to be unable for a claim. However, in Galli-Atkinson v Seghal, the courts took on a more lenient approach and allowed a mother’s claim over a period of time following her daughter’s death on the grounds that the different component parts could be viewed as the aftermath of the incident itself.
The final element to account for is how the ‘shock’ is caused, the means of it. Lord Ackner identified it as ‘a sudden appreciation by sight or sound of a horrifying event which violently agitates the mind’. Due to this, a father who sustained psychiatric injury as a result of watching his son die over a period of 14 days was denied of a claim. Thus, this requirement had been widely criticised by academics. In the Law Commission’s paper, it was argued that such emphasis produces harsh decisions and since the term is vague and has no actual psychiatric meaning, it could be misleading. However, recent developments show that the courts are willing to mitigate this restrictive factor as can be seen in North Glamorgan NHS Trust v Walters where the courts allowed recovery for a 36-hour period. In addition, this element of ‘shock’ must also be the product of what the claimant perceived with her own unaided evidence of senses. This helps to effectively limit claims of claimants who were in a fairly close physical proximity to the incident. Generally, having informed through a third party is not sufficient to establish liability for a psychiatric injury claim. However, in Ravenscroft v Rederiaktiebolaget Transatlantic, a mother who was told upon arrival at the hospital about the death of her husband and son was held to succeed in her claim, although she did not even see her son’s body. Ward J admitted that the facts were ‘way beyond the margin’ however, he argued that emphasis should be given on the proximity of the relationship between the parties.
Another factor which serves as a control mechanism in limiting liability is the requirement of foreseeability. This helps to firstly exclude those who were not direct witness to the event and secondly the bystanders who are in no way related to the victim. The landmark case in determining the test of foreseeability is Bourhill v Young, where the House of Lords denied the claimant’s claim on the basis that he was not within the defendant’s reasonable contemplation. In King v Philips, it was affirmed by Denning LJ that the test of liability is the foresight of psychiatric injury.
Many factors will bear on the inquiry of foreseeability of psychiatric injury. When applying this test of foresight, it must be illustrated that the claimant was a person of ‘reasonable fortitude’ and not unduly susceptible to any form of psychiatric reaction. This is to prevent from opening the floodgates to delictual claims for pure psychiatric injuries. Thus, the test is an objective one, whether a person of normal fortitude and phlegm would sustain psychiatric injury if placed under the Claimant’s position. However, once it has been established that a person of normal fortitude would suffer psychiatric injury, then the ‘eggshell skull’ rule applies. The claimant would be entitled to his claim for the full extent of his injury even if this injury is exacerbated by a higher tendency to his pre-existing psychiatric illness.
One significant criticism to this area of the law is that psychiatric injury is not given an equal footing as physical injury. Although it is undeniable that psychiatric injury is different from that of physical injury in its nature, it does not mean that it is less important. As noted by Lord Macmillan in Bourhill v Young, ‘a mental shock may have consequences more serious than those resulting from physical impact’.
Another major criticism to the present state of the law relating to psychiatric injury is that the courts have formulated tests which are arbitrary in their application, being unfair and patronising in their attempt to place limitations and barriers for claims in efforts to prevent excessive litigation. The problem with arbitrary limits is that it poses a great difficulty in its application and interpretation. This is evident in the requirement of the proximity of space and time for secondary victims. It is worth noting that although the immediate aftermath of the event is not experienced or witnessed, the psychological impact of it is no less real. Thus, it is suggested that emphasis be placed upon the severity of injury sustained by the claimant or the culpability of the conduct of the defendant. However, it appears that the categorisation of primary and secondary victims is not closed and it is a concept that is yet to be developed and expanded upon in different factual situations.
In conclusion, it is undeniably true that there exists a growing acceptance towards the recognition of psychiatric injury in the tort of negligence. However, evidences present in the form of the restrictive rules which serve as control mechanisms and the arbitrary applications of it suggest that unfortunately the judicial scepticism towards this area of the law remains. Thus, there is a need to call for a legislative reform like what the Commission Report has suggested in order to further clarify this area of the law for the interests of justice.