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SCOTTISH LAW COMMISSION

(Discussion Paper No 120)

Discussion Paper on Damages for Psychiatric Injury

August 2002

This Discussion Paper is published for comment and criticism and does not represent the final views of the Scottish Law Commission

EDINBURGH: The Stationery Office

£xx.xx

The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965^[1] for the purpose of promoting the reform of the law of Scotland. The Commissioners are:

The Honourable Lord Eassie, Chairman
Patrick S Hodge, QC
Professor Gerard Maher
Professor Kenneth G C Reid
Professor Joseph M Thomson.

The Secretary of the Commission is Miss Jane L McLeod. Its offices are at 140 Causewayside, Edinburgh EH9 1PR.

The Commission would be grateful if comments on this discussion paper were submitted by 30 November 2002. Comments may be made on all or any of the matters raised in the paper. All correspondence should be addressed to:

Dr David Nichols
Scottish Law Commission
140 Causewayside
Edinburgh EH9 1PR
Tel: 0131 668 2131
Fax: 0131 662 4900
E-mail: info@scotlawcom.gov.uk
Online comments at: www.scotlawcom.gov.uk - select "Submit Comments"

NOTES

Consultees should be aware that copies of comments received may be (i) referred to in any later report on this subject and (ii) made available to any interested party, unless consultees indicate that all or part of their response is confidential. Such confidentiality will of course be strictly respected.

Where possible, we would prefer electronic submission of comments to the e-mail or online comments address above.

For those wishing further copies of this paper for the purpose of commenting on it, the paper may be downloaded from our website at www.scotlawcom.gov.uk, or purchased from TSO Scotland Bookshops.

Contents

	othersgraph
PART 1 - INTRODUCTION
Remit	1.1
Advisory Group	1.2
Scope of the discussion paper	1.3
The present law and its defects	1.4
Plan of discussion paper	1.7
Legislative competence	1.8

PART 2 – NATURE OF INJURY AND NEED FOR SHOCK
Introduction	2.1
Psychiatric injury or mental distress	2.2
The shock requirement	2.10

PART 3 – PRIMARY VICTIMS
Introduction	3.1
Duty of care, breach of duty and remoteness of injury	3.2
Psychiatric injury and delictual liability \|(a) The law before Page v Smith \|(b) Page v Smith \|(c) The definition of primary victims after Page v Smith \|(d) Page v Smith - the case for reform	3.7 3.14 3.19 3.29
The criteria for liability for psychiatric injury	3.33
Psychiatric injury and damage to property	3.35
Conclusions	3.36

PART 4 - SECONDARY VICTIMS
Introduction	4.1
Classification into primary and secondary victims	4.2
Should secondary victims be compensated?	4.5
Are the Alcock criteria necessary?	4.9
Determining close ties of love and affection	4.14
Abolition of the second and third Alcock criteria	4.22
Rescuers	4.28
Claims where immediate victim has only a psychiatric injury	4.35
PART 5 – OTHER LIABILITY ISSUES

Introduction	5.1
Dependency of secondary victim's claim	5.2
Liability of immediate victims to their relatives	5.11

PART 6 – LIST OF PROPOSALS
APPENDIX A OTHER JURISDICTIONS	Appendix A
APPENDIX B BIBLIOGRAPHY	Appendix B

Part 1 Introduction

Remit

In July 2001 we received the following reference

^[2]

"To examine the law of Scotland relating to psychiatric injury caused by another person and to make recommendations as to possible changes in the law."

This discussion paper is issued as part of our work on this reference.

Advisory Group

In preparing this discussion paper we have been greatly assisted by an Advisory Group whose members are listed below.

^[3]

Scope of the discussion paper

This discussion paper deals with delictual claims for psychiatric injury. It concentrates on "pure" psychiatric injury, that is where the act or omission of the wrongdoer gives rise to psychiatric injury without any physical or other injury.

^[4]

^[5]

^[6]

^[7]

^[8]

The present law and its defects

We give here a brief outline of the existing law in the area covered by this discussion paper. It is examined in greater detail in Parts 2-5.

(1) The pursuer must suffer from a psychiatric illness. Damages are not awarded for mere grief or distress.^[9]

(2) The pursuer's psychiatric injury must be induced by "shock" - a sudden assault on the senses^[10] - rather than a more drawn-out process.^[11] But there is no shock requirement in employment cases.^[12]

(3) Pursuers are to be divided into primary victims and secondary victims, but there is a doubt as to the correct criteria for distinguishing between them. One view is that primary victims are those immediately involved in the incident as participants (such as those who feared for their own safety, rescuers and involuntary participants) in contrast with secondary victims who merely witness the death or injury of a third party.^[13] But primary victims have also been-more narrowly-defined as being those who were both directly involved in the incident and well within the range of foreseeable physical injury.^[14] A claim may also be made by persons in respect of psychiatric injury arising out of damage to or interference with their own property as a result of another's negligence.^[15]

(4) Generally the pursuer's psychiatric illness must be a reasonably foreseeable consequence of the wrongdoer's act or omission, but a primary victim may claim for an unforeseeable psychiatric illness as long as some sort of personal injury (physical or psychiatric) was reasonably foreseeable.^[16]

(5) A secondary victim has to satisfy three further criteria in addition to the reasonably foreseeability test in (4) above. These are that the secondary victim must:

(a) have a close tie of love or affection with the dead or injured person;

(b) be sufficiently close in time and space to the incident or its immediate aftermath;

(c) have perceived the incident or its immediate aftermath directly through his or her unaided senses.^[17]

(6) A secondary victim may not be entitled to claim if the dead or injured person was wholly or substantially liable for the incident.^[18]

It is widely recognised that the existing law suffers from major defects and is in need of reform.

^[19]

In March 1998 the Law Commission published its Report on Liability for Psychiatric Illness

Plan of discussion paper

Part 2 looks at two general issues; the kind of psychiatric injury for which the law will provide compensation and whether a compensatable psychiatric injury has to arise from a shock. Part 3 considers pursuers (often called primary victims) who have suffered a psychiatric injury otherwise than by their witnessing the death or injury of a third party. Part 4 examines those persons (often called secondary victims) whose psychiatric injury results from witnessing the death or injury of a third party. It also looks at the legal position of rescuers. Part 5 concerns the links between primary and secondary victims, in particular whether a secondary victim's claim against the wrongdoer is dependent on that of the primary victim and whether a primary victim who was wholly or partly responsible for the incident owes a duty of care to the secondary victim. Part 6 lists our provisional proposals for reform on which we invite comment. Appendix A contains a summary of the law on liability for psychiatric injury in a number of other jurisdictions. Appendix B is a bibliography of books and articles.

Legislative competence

1.8

The proposals put forward in this discussion paper generally lie within the legislative competence of the Scottish Parliament. None of our proposals would result in amendment to any of the enactments set out in Schedule 4 of the Scotland Act 1998 that are protected from modification by the Scottish Parliament.

^[24]

^[25]

In our view our proposals would not give rise to any breach of the European Convention on Human Rights or Community law.

Part 2 Nature of injury and need for shock

Introduction

2.1

In this Part we consider two criteria that currently must be satisfied before any entitlement to damages for a psychiatric injury can arise. The first is that the pursuer must have suffered a psychiatric injury or illness rather than mere mental distress (ie the normal emotional reactions of grief, distress or fright at an accident). The other criterion is that the psychiatric injury must have been induced by a shock. We should stress that we are not dealing here with claims for non-patrimonial loss under the Damages (Scotland) Act 1976 by members of a deceased's immediate family.

Psychiatric injury or mental distress

2.2

A successful claim for pure psychiatric injury requires pursuers to establish that they suffered something beyond the normal emotional response of grief, distress or fear (ie mental distress) to an incident. What is required has been described in various ways. In Simpson v Imperial Chemical Industries

^[26]

^[27]

"It is not enough for a person to say that he received a shock or a fright from an explosion which caused normal emotional reaction with no lasting effect, and to claim on account of this "shock" alone. He can only claim damages if he proves that he suffered some physical, mental or nervous injury."

Lord Grieve quoted Lord Bridge's dictum in McLoughlin v O'Brian.^[28] "The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured…So, the first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness." Lord Grieve went on to say that: ^[29]

"While it is well established that damages can be recovered on the ground of nervous shock, as well as the ground of actual physical injury, there must be some evidence that the "nervous shock" complained of is a condition which can reasonably be described as an illness."

In Rorrison v West Lothian Council

^[30]

^[31]

"Many, if not all, employees are liable to suffer these emotions [frustration and embarrassment], and others mentioned in the present case such as stress, anxiety, loss of confidence and low mood. To suffer such emotions from time to time, not least because of problems at work, is a normal part of human existence. It is only if they are liable to be suffered to such a pathological degree as to constitute a psychiatric disorder that a duty of care to protect against them can arise; …".

Should there continue to be a threshold level of suffering that has to be attained before damages can be awarded? There has been a call for severe mental suffering short of mental illness to be compensatable.

^[32]

^[33]

^[34]

The arguments in favour of retaining the present distinction between mental distress and psychiatric injury are that:

(1) The requirement for a psychiatric injury serves to limit the number of cases, so that wrongdoers are not faced with paying compensation out of all proportion to their culpability and the courts are not inundated with claims. While a distinction can be made between a psychiatric injury and mental distress, it would be difficult, if not impossible, to draw a line between compensatable mental distress and non-compensatable mental distress.

(2) People should not expect to be compensated for mental distress which is a normal human reaction to the vicissitudes of life.

The arguments against retention are that:

(1) No threshold requirement exists for physical injuries, yet the courts are not inundated with claims for minor injuries. The same practical restrictions would apply to claims in relation to minor or transient mental distress.

(2) The distinction between mental distress and psychiatric injury is essentially one for medical evidence so that the decision as to what is compensatable depends on psychiatric opinion and practice rather than the law.

2.6

In its Report on Liability for Psychiatric Illness

^[35]

The other jurisdictions that we have studied exclude claims for distress and require the pursuer to establish the existence of a psychiatric illness, disorder or injury. In the Australian case of Mount Isa Mines Ltd v Pusey

^[36]

Rhodes v Canadian National Railway

Kelly v Hennessy

Assuming there is to be a threshold requirement, how should it be expressed? If the threshold continues to rest on the common law, no definition is required and what is compensatable can be left to the courts. But if there is to be legislation some definition may be necessary.

Moreover, a claim could not be made for a new mental disorder until a revised edition of the documents had been issued.^[47] The phrase "recognised psychiatric injury" would suffer from the same defect. We prefer the term "significantly disabling psychiatric injury" to "recognisable psychiatric illness". First, not all recognisable psychiatric illnesses or disorders affect the sufferer's quality of life to an extent that should attract compensation. Second, the injury and the extent to which it was disabling would be a question of fact in each case, in which the court would rely on evidence by psychiatrists or other experts and the pursuer. We consider that it would be easier for a psychiatrist or other expert to express a view as to whether the pursuer was suffering from a significantly disabling psychiatric injury than whether he or she had a recognisable psychiatric illness. We understand that experts often disagree about the diagnosis (eg post-traumatic stress disorder or adjustment disorder) in an individual case, but agree about the degree of disability the psychiatric injury is causing the pursuer. Finally, the term "injury" helps to distinguish those symptoms that are part of a pre-existing psychiatric disorder and those that were produced by the incident.

We seek views on the following proposal and question:

1. (1) It should continue to be the position that no compensation may be claimed for mere mental distress.

(2) Should the compensatable category be defined as a significantly disabling psychiatric injury or in some other way?

The shock requirement

2.10

Traditionally this aspect of the law of delict has been known as liability for nervous shock. Originally, this nomenclature simply reflected contemporary medical and judicial understanding of how mental injury was incurred. In turn, "shock" has been defined as the "sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind".

^[48]

^[49]

Wood v Miller

^[50]

,

Sion v Hampstead Health Authority

^[51]

^[52]

Walters v North Glamorgan NHS Trust

For abandoning the shock requirement

(1) The shock requirement produces harsh decisions, and if its sole purpose is to limit the number of potential claims, it is a very crude method of doing so.

(2) The shock requirement renders some forms of psychiatric illness, such as post-traumatic stress disorder, more readily compensatable than other psychiatric illnesses, such as depression. The suffering involved in each can be equally severe and equally causally connected with the wrongdoer's negligence.

(3) The full extent of the physical injuries of the immediate victim may become apparent to the pursuer only over a period of time.

(4) The first part of the shock requirement that the pursuer had a sudden appreciation by sight or sound of a horrifying event retains the second of the Alcock criteria - that the pursuer must have been present at the accident or its immediate aftermath.^[56]

(5) The requirement excludes those whom society may feel most worthy of legal support, such as the person worn down by the long-term caring of an injured relative.

Against abandoning the shock requirement

(1) Abandoning the shock requirement would increase the potential number of claims, thereby opening the floodgates of litigation.

(2) The shock test facilitates proof of causation. Without such a test, the court would be required to decide whether the pursuer's illness, possibly occurring many months or even years after the allegedly negligent act or omission, was in fact caused by that act or omission or some other intervening event.

(3) The requirement maintains a level of immediacy with the primary event, thereby protecting the wrongdoer from the possibility of claims arising much later.

(4) Several other jurisdictions have a shock requirement.

(5) Damages are not available for every misfortune that may occur as the result of a person's negligence. Psychiatric illness brought on by the long-term caring of an injured relative could be regarded as one of the unfortunate vicissitudes of life for which the law should not provide compensation.

Our study of other jurisdictions shows that views differ on the shock requirement. In Australia proof that the psychiatric injury arose as a result of a sudden shock is required.

Anderson v Smith

Barnard v Santam Bpk

^[64]

We agree with the Law Commission's recommendation to abandon the shock requirement.

We therefore propose that:

2. It should be competent to claim damages for a psychiatric injury even though it was not induced by shock.

Part 3 Primary Victims

Introduction

3.1

In this Part we consider the current law as it relates to a pursuer who has suffered a significantly disabling psychiatric injury as a consequence of the defender's negligence and whose injury was not merely the result of witnessing the death or personal injury of a third party. Such a pursuer is often described as a primary victim. At the outset, we shall consider the general principles of delictual liability which are relevant in such cases.

Duty of care, breach of duty and remoteness of injury

3.2

It is trite law that before there can be liability in delict the defender's conduct must amount to a breach of a pre-existing duty of care which the defender owed to the pursuer.

^[69]

^[70]

^[71]

Even if the defender owes the pursuer a duty of care, there is no liability unless the particular harm sustained by the pursuer was foreseeable by the defender as a probable consequence of his acts or omissions. Put another way, there is no breach of the duty of care if the defender could not foresee that his conduct could in the circumstances have had as its probable consequence the kind of harm sustained by the defender.

^[72]

viz

in limine

An example may be helpful. In the leading case of Muir v Glasgow Corporation

^[73]

In personal injury cases there is an important qualification to the remoteness of injury principle. While it is necessary to foresee the kind of injury that the pursuer has suffered, it is not necessary to foresee the extent of the injury or the precise way in which it was sustained.

^[74]

^[75]

^[76]

after

establish

^[77]

extent

So far we have been considering duty, breach of duty and remoteness in the context of delictual liability for physical injury. It is important to bear these fundamental principles in mind when considering liability in delict for psychiatric injury. As we shall see, liability in delict for psychiatric injury has often been denied on the basis that the defender did not owe the pursuer a duty of care: but on occasions, a more principled approach would have been to hold that there was a duty of care but in the circumstances there was no breach of duty because the mental illness suffered by the pursuer was not reasonably foreseeable as a probable consequence of the defender's conduct.

Psychiatric injury and delictual liability

(a) The law before Page v Smith^[78]

As a general rule, a duty of care to prevent physical injury arises when the defender can reasonably foresee that the pursuer may be injured by the defender's careless acts or omissions. This can be characterised as a general duty on the defender to take reasonable care towards persons who are within the area of risk of foreseeable physical harm arising from the defender's conduct. However, the courts have refused to develop an analogous general duty of care to prevent psychiatric injury whenever the defender can reasonably foresee that the pursuer may sustain such injury as a consequence of the defender's careless acts and omissions. Instead, they have proceeded in a piecemeal fashion and the law has not developed in a coherent way. Time and again the logical application of a principled approach to the subject is jettisoned to encompass the circumstances of a particular case where it is felt that reparation should be awarded; in turn, the new development is distinguished - if not discarded - when its application to the facts of a later case would appear to extend the scope of potential liability beyond what the courts feel is socially and economically desirable.

^[79]

Initially, the Scottish courts refused to recognise mental illness as a reparable interest at all.

Accordingly, if the pursuer was within the area of risk of potential physical harm, a duty of care arose to prevent the pursuer suffering mental illness if it was reasonably foreseeable that this might occur, assuming the pursuer to be of ordinary fortitude. Thus in the leading case of Bourhill v Young,

^[86]

in limine

conditio sine qua non

We have been considering the situation where the pursuer did not suffer physical harm but only psychiatric injury. Where the pursuer was within the zone of potential physical danger and sustained physical and mental injuries, damages could be available for both types of injury. There is no difficulty where both kinds of injury are reasonably foreseeable: in that case there will have been breach of a duty to prevent physical harm and a breach of a duty to prevent psychiatric injury. But what if psychiatric injury was not reasonably foreseeable? Provided physical injury was reasonably foreseeable and was in fact sustained by the pursuer, there has been a breach of a duty of care to prevent physical harm. Whether damages can also be obtained for psychiatric injury now becomes a matter of remoteness of injury, not the existence of an independent duty of care to prevent the pursuer sustaining psychiatric harm.

3.11

It is generally accepted by personal injury practitioners that where the pursuer has in fact been physically injured, any psychiatric injury also suffered by the pursuer will not be regarded as too remote, even if it was not reasonably foreseeable. In an analogy with the "thin skull" rule, the defender has to take the victim as he finds him and is liable even although the mental illness arose because the victim had a "thin skull personality": it therefore does not matter that a mental illness would not have been sustained by a person of ordinary fortitude and for that reason was unforeseeable. Indeed, it would appear that where a pursuer has been physically injured in breach of a duty of care to prevent physical harm, a mental illness can constitute a head of loss even though it is not a direct result of the pursuer's physical injury. In Schneider v Eisovitch

^[87]

^[88]

We have seen that in determining the existence of a duty of care to prevent psychiatric injury and whether or not the duty of care has been breached, the pursuer is assumed to be a person of ordinary fortitude unless the defender knows or ought to have known that he had an unusual susceptibility to psychiatric injury. However, it is difficult to understand what is meant by persons of ordinary fortitude. A traumatic event may cause the pursuer psychiatric injury yet leave others unaffected. If those who were unaffected were always regarded as persons of ordinary fortitude, those who suffered mental illness would never obtain reparation since either no duty of care would arise or there would be no breach of duty. Yet, it cannot be simply a matter of statistics. For instance, a duty of care can arise to protect particularly vulnerable persons from physical harm

To summarise. Before the decision of the House of Lords in Page v Smith

^[93]

(b) Page v Smith

These principles have now been overtaken by the decision of the House of Lords in Page v Smith.

^[94]

Nevertheless, the House of Lords by a majority found for the plaintiff. In Lord Lloyd's opinion, when the plaintiff was in the area of risk of potential physical harm there was no distinction between physical and mental injury.

^[95]

personal

The decision has proved controversial.

^[96]

breached

Page

Nevertheless, after Page v Smith it is generally accepted that if the pursuer is within the area of risk of reasonably foreseeable physical harm the defender is under a duty of care to prevent the defender suffering psychiatric as well as physical injury. It appears to be irrelevant that the psychiatric injury is not reasonably foreseeable as a probable consequence of the defender's conduct. However this result is achieved by departing from well established principles of delictual liability. In particular, the criteria for the imposition of a duty of care are intertwined with issues of remoteness of injury which should only arise after a pre-existing duty has been broken. In practice, of course, where physical injury is reasonably foreseeable it will usually follow that psychiatric injury will also be reasonably foreseeable: consequently, there will be a duty of care not to cause the defender psychiatric injury. Even if psychiatric injury is not reasonably foreseeable, the pursuer will be able to obtain damages for that injury as a consequence of the "thin skull" principle provided he was in fact physically injured. Indeed, it was to avoid the apparent absurdity that Mr Page would have recovered on this basis if he had sustained a minor physical injury but would obtain nothing in the absence of such an injury, that the majority of the House departed from established principle in order to find the defendant liable.

3.18

In the course of their speeches in Page, both Lord Browne-Wilkinson and Lord Lloyd

^[97]

Page

(c) The definition of primary victims after Page v Smith

Page v Smith was concerned with a plaintiff who was within the area of foreseeable physical danger. Such persons are known as primary victims. The idea is that a primary victim has been directly involved in the circumstances which caused the injury. This is contrasted with the position of a secondary victim who suffers psychiatric injury as a result of being "no more than the passive and unwilling witness of injury caused to others".

^[98]

Alcock

^[99]

In Frost v Chief Constable of South Yorkshire

^[100]

Page v Smith

^[101]

Alcock

The rule that a primary victim must be within the range of foreseeable physical injury arguably gives rise to hard cases and has been criticised.

^[102]

Hunter v British Coal Corporation

^[103]

Young v Charles Church (Southern) Ltd

^[104]

Campbell v North Lanarkshire Council.

^[105]

More importantly, perhaps, it has become clear that, in spite of the view taken by the majority in Frost, there are situations where persons are treated as primary victims who were not within the range of foreseeable physical injury.

3.23

First, the courts have recognised that an employer can be liable in delict for psychiatric injury suffered by an employee as a consequence of the employer's failure to take reasonable care for the employee's health and safety at work. The psychiatric injury is often caused as a result of stress during a period of employment.

^[106]

Rorrison v West Lothian Council

^[107]

However, the predominant view now accepted by the courts is that the employer's duty to prevent personal injury is sufficiently wide to include psychiatric injury; thus the issue of the existence of a duty of care not to cause the employee psychiatric injury does not arise. Instead, the controlling device is whether there has been a breach of the duty, ie whether the employee's psychiatric injury was reasonably foreseeable by the employer as a probable consequence of his conduct.

^[108]

Walker v Northumberland County Council

^[109]

^[110]

^[111]

Hatton v Sutherland

^[112]

viz

^[113]

Page

Frost

^[114]

A second situation where damages have been awarded to an employee who was not in physical danger is that which arose in Dooley v Cammell Laird.

^[115]

Third, in McLoughlin v Jones

^[116]

^[117]

Fourth, claims for psychiatric injury arising out of the receipt of distressing news have been allowed. In Allin v City and Hackney Health Authority

^[118]

AB v Tameside and Glossop Health Authority

^[119]

Finally, in spite of Frost, the House of Lords has itself accepted that the concept of a primary victim can in exceptional circumstances be extended beyond persons who are within the area of potential physical harm. In W v Essex County Council

^[120]

Frost

^[121]

W

Alcock

Dooley

(d) Page v Smith - the case for reform

unforeseeable

Page v Smith

physical

Page

The Law Commission recommended that the rule in Page v Smith - that reasonable foresight of psychiatric illness is not required provided physical injury to the victim was reasonably foreseeable - should not be overturned.

^[125]

Frost v Chief of South Yorkshire

^[126]

Page

Frost

Page

^[127]

There appear to be two reasons why the House of Lords in Frost felt it necessary to make a distinction between primary and secondary victims and to define primary victims in such a restrictive way. First, when the pursuer is classified as a primary victim because he is within the zone of foreseeable personal danger, following Page v Smith, he enjoys the advantage of being able to recover damages for psychiatric injury even though the mental illness was not reasonably foreseeable and he was not physically injured. If this aspect of the decision in Page was overturned, then the significance of the pursuer being classified as a primary victim for this reason would diminish. It would therefore not be so important to restrict "primary" victims to persons who were within the area of potential physical harm.

3.32

Secondly, by restricting primary victims to persons who were within the zone of foreseeable personal danger, the courts were able to identify those situations where the Alcock criteria were relevant. Undoubtedly a major reason why the courts did not develop a general duty of care to prevent reasonably foreseeable psychiatric injury was to inhibit persons recovering damages for psychiatric injury as a consequence of witnessing or being informed of the death or injury of a third party.

^[128]

Frost

^[129]

Alcock

The criteria for liability for psychiatric injury

Once the position of secondary victims is excluded, it appears to us that a duty of care to prevent psychiatric injury should arise whenever it is reasonably foreseeable that the pursuer might sustain psychiatric injury from the acts or omissions of the defender. The adoption of this simple principle can be seen in several jurisdictions.

^[130]

^[131]

Moreover, liability will not be established unless there is a breach of the duty by the defender. This will only happen when psychiatric injury can reasonably be foreseen as a probable consequence of the defender's conduct: for this purpose, once again the defender can assume that the pursuer is a person of normal fortitude unless he has actual knowledge of the pursuer's unusual susceptibility to mental illness. This will prevent the defender being held liable where the injury is incommensurate to his fault. Only if, in breach of a duty of care to prevent physical harm, the pursuer is physically injured but also suffers a mental illness will the defender be liable for unforeseeable psychiatric injury as a consequence of the "thin skull" rule.

Psychiatric injury and damage to property

3.35

In Attia v British Gas Plc,

^[132]

Attia

Conclusions

In the light of the foregoing discussion we seek views on the following proposals relating to the criteria for delictual liability in respect of psychiatric injury sustained by a primary victim. It should be emphasised again that at this stage we are not concerned with persons who have sustained psychiatric injury as a consequence of witnessing the death or injury of others.

3. (1) A duty of care not to cause psychiatric injury should arise when it is reasonably foreseeable that the pursuer will sustain psychiatric injury as a consequence of the defender's conduct.

(2) The pursuer should not have to be within the area of potential physical harm before a duty of care to prevent psychiatric injury can arise.

(3) A duty of care to prevent psychiatric injury should not be breached if in the circumstances of the case some kind of psychiatric injury to the pursuer was not reasonably foreseeable as a probable consequence of the defender's conduct.

(4) Where there has been a breach of a duty of care not to cause the pursuer physical harm, ie the pursuer has in fact sustained physical injury, the pursuer should continue to be able to recover damages for unforeseeable psychiatric injury: otherwise damages should be recovered only if some kind of psychiatric injury was foreseeable as a probable consequence of the defender's conduct.

(5) Where the defender owes the pursuer a duty of care not to damage the pursuer's property, the pursuer should be able to recover damages for psychiatric injury arising from damage to the property provided that psychiatric injury to the pursuer was reasonably foreseeable as a probable consequence of the defender's negligence.

(6) In determining whether psychiatric injury is reasonably foreseeable for these purposes the pursuer should be regarded as a person of reasonable fortitude unless the defender has knowledge of the pursuer's unusual susceptibility to psychiatric injury.

Part 4 Secondary Victims

Introduction

4.1

The present law on damages for psychiatric injury distinguishes between primary victims and secondary victims. The main legal significance of the distinction is that in order that secondary victims can recover damages for a psychiatric injury they have to satisfy the additional criteria referred to as "the Alcock criteria" that are summarised in paragraph 4.5 below. Also, as the law currently stands, a primary victim does not have to establish that the psychiatric injury was foreseeable provided some personal injury (physical or psychiatric) was foreseeable,

^[133]

^[134]

^[135]

Alcock

Classification into primary and secondary victims

The categorisation of those suffering from psychiatric injuries into primary and secondary victims stems from Lord Oliver's speech in Alcock v Chief Constable of South Yorkshire Police. The two categories are "those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant" (a primary victim) and "those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others" (a secondary victim).

^[136]

^[137]

Page v Smith

^[138]

The discrepancy between these two definitions has given rise to much discussion. However, the House of Lords in Frost v Chief Constable of South Yorkshire Police

Alcock

Page v Smith

Alcock

^[143]

Lord Hoffmann in Frost v Chief Constable South Yorkshire Police suggested that the distinction between primary and secondary victims should depend on the cause of their psychiatric injury.

^[144]

Should secondary victims be compensated?

Under the present law a secondary victim may claim damages for a psychiatric injury if it arose out of an incident for which the defender was responsible and the secondary victim satisfies the three criteria set out by Lord Oliver in Alcock v Chief Constable of South Yorkshire Police.

^[145]

(a) there must be a close tie of love and affection between the secondary victim and the injured person;

(b) the secondary victim must have been present at the accident or at its immediate aftermath; and

(c) the secondary victim's psychiatric injury must have been caused by direct perception (ie through his or her own unaided senses) of the accident or its immediate aftermath.

The first question is whether secondary victims should be compensated at all. It could be argued that people who were not themselves in any actual or apprehended physical danger during the incident or its immediate aftermath should not be compensated simply because they observe the death or injury of others. For many people this would seem a heartless approach. We think that it is plainly foreseeable that even persons of normal fortitude may suffer more than grief and distress if they see their spouse, child or parent killed or severely injured in a gruesome incident. If there were legislation preventing claims by secondary victims, the courts would be tempted to extend the categories of primary victims.

4.7

A less drastic method of restricting a wrongdoer's liability would be to have a statutory limit on the amount of damages a secondary victim could be awarded for psychiatric injury. There could be a maximum placed on the global sum awardable to all the secondary victim claimants or each award could be capped. A refinement would allow a higher limit for members of the injured person's immediate family. Bereavement damages which can be claimed in England and Wales by a spouse of the deceased or parents of a deceased minor child from a wrongdoer whose negligence caused the death are fixed at £10,000.

^[146]

Our provisional view is that claims by secondary victims should be neither abolished nor capped. The Law Commission did not recommend any such restrictions and none of the jurisdictions that we have studied adopt this approach. In order to elicit views we propose that:

4. (1) A person should continue to be entitled (subject to satisfying other requirements) to claim damages for a psychiatric injury suffered as a result of another individual's personal injury or death.

(2) There should be no statutory limit set to the amount of such damages.

Are the Alcock criteria necessary?

4.9

We first examine the case for retaining any of the three present Alcock criteria. Later we argue that the second and third criteria (requiring presence at, and direct perception of, the incident or its immediate aftermath) should no longer be necessary. The arguments about retention of the Alcock criteria therefore relate only to the first one, requiring the pursuer to have a close tie of love and affection with the dead or injured person. The purpose of these criteria is to limit the number of potential claimants for psychiatric injury so that a wrongdoer who causes a horrific and well-publicised accident is not faced with compensating the whole world. It would be possible to allow claims by persons on the simple ground that their psychiatric injury was a reasonably foreseeable consequence of the defender's conduct. In its Report on Liability for Psychiatric Illness, the Commission rejected this on the grounds that it would risk opening the floodgates, so leading to an unacceptable increase in the number of claims.

^[147]

The fear of a large increase in the number of cases may be unfounded. People are unlikely to suffer psychiatric injury as a consequence of the death or injury of persons to whom they are not emotionally close. Courts would be aware of the potential for a vast increase in the number of claims and would continue to take a conservative approach on foreseeability. It was held in Bourhill v Young

^[148]

Alcock

^[149]

McFarlane v EE Caledonia Ltd

^[150]

Removal of the need to establish a close tie of love and affection would assist in those cases where a person who was not in any danger sees a workmate killed in an accident or the horrific immediate aftermath.

^[151]

Alcock

^[152]

^[153]

Under the present law a close tie of love and affection is required. A close tie is also needed in Australia while Germany allows claims only by close relatives. In Canada the existence of a proximity relationship determines whether the psychiatric injury was reasonably foreseeable. The proximity relationship is made up of a number of factors, such as closeness of relationship, being at the scene and seeing the shocking event, and the time between the event and the onset of the illness. No one factor is decisive, although the relationship between the claimant and the immediate victim is generally regarded as a predominant factor.

^[154]

Our provisional view is that there is force in the floodgates argument and that we should proceed cautiously in this area. It would be better to wait and see what effect removing the need for the second and third Alcock criteria has on the level of claims before considering abolition of the close tie of love and affection requirement. We are also of the opinion that foreseeability by itself is too vague a concept for distinguishing those cases where damages ought to be awarded and those where they should not. We therefore propose that:

5. It should continue to be a requirement for a claim for psychiatric injury suffered as a result of another person's death or personal injury that the pursuer had a close tie of love and affection with that person.

Determining close ties of love and affection

4.14

At present there has to be a close tie of love and affection between the pursuer/secondary victim and the injured person. A close tie is currently presumed to exist in relation to a parent, a child, a spouse and possibly a fiancé(e).

^[155]

^[156]

Robertson v Forth Road Bridge Joint Board

^[157]

In Australia claims at common law are restricted to members of the deceased's immediate family including siblings

in loco parentis

The law could be left as it is or reformed in some way. There are a number of options for reform. The first question is whether there should be any list of relatives who are presumed or deemed to have a close tie of love and affection with the injured person. In the absence of any list, the courts would have a complete discretion so that any person's claim would succeed if a sufficiently close tie was established by evidence. This would enable the courts to do justice in each case and follow future changes in the concept of a family. However, it gives the courts no guidance in an area where there are likely to be differing views as to what constitutes a close tie. The concept of a close tie of love and affection is vague. Without some boundaries it leads to an open-ended class of secondary victims (with concomitant extended liability by wrongdoers) and encourages claims by those on the periphery of the injured person's family and social circle. The evidence that would be required could be distasteful to air in public and the claimants with psychiatric injuries might be subjected to stressful questioning as to the details of their relationship. Averments of a close tie would also be difficult to refute. We think that giving courts complete discretion would promote uncertainty and litigation and encourage speculative claims.

4.17

We see advantages in having a statutory list of those who are presumed or deemed to have a close tie of love and affection. These are the converse of the disadvantages of a discretionary system mentioned in the previous paragraph. A list would promote certainty and avoid distressing or distasteful litigation. Claims by distant relatives or friends who were unduly sensitive would either never be brought or could be dismissed at a preliminary stage without the need for expensive and time-consuming proof. The experience with claims for non-patrimonial loss under the Damages (Scotland) Act 1976 is instructive. Schedule 1 contains a list of members of the deceased's immediate family who are entitled to claim for grief, sorrow and loss of society. In theory, no damages for non-patrimonial loss will be awarded unless the immediate family member establishes such loss. In practice, damages are awarded without requiring extensive detailed evidence (which could be distressing and distasteful) of the relative's grief, sorrow and loss of society and claims are rarely defended on the basis that the pursuer in fact suffered no grief or other non-patrimonial loss.

4.18

The Law Commission recommended a list of relatives (spouse, cohabitant, parent, child and sibling) who were to be deemed to have a close tie.

^[171]

If there is to be a statutory list who should be included in it? We think that the choice lies between the "nuclear family" or the more numerous immediate family members who have title to sue for non-patrimonial loss under the Damages (Scotland) Act 1976. It is difficult to see where to draw the line if the list is to be expanded beyond the 1976 Act relatives. The nuclear family would be spouse, domestic partner (ie an opposite-sex or same-sex cohabitant), parents, children and siblings. This is the list recommended by the Law Commission, but if it were to be adopted for Scotland we think that a child accepted by the injured person as a member of the family should also be included. We have just published a report

^[172]

^[173]

Finally, should the list be exclusive or should others be entitled to claim if they can establish that in their case a close tie of love and affection did exist. This prevents the arbitrariness of a closed list, but introduces some of the disadvantages of a discretionary system mentioned in paragraph 4.15 above. The arguments for some element of discretion have more weight if the basic list is confined to members of the injured person's nuclear family.

4.21

In order to elicit views we ask the following questions:

6. (1) Should there be a statutory list of individuals deemed to have a close tie of love and affection with the immediate victim, or should the existing common law be retained whereby certain close relatives are presumed to have a close tie while others may establish a close tie?

(2) If there is to be a statutory list, should it comprise:

(a) spouse, opposite-sex or same-sex cohabitant, parent (including a person who had accepted the immediate victim as a child of the family), child (including a child who had been accepted by the immediate victim as a child of the family) and sibling; or

(b) those entitled to sue for non-patrimonial loss under the Damages (Scotland) Act 1976 which we have recommended should be; spouse, opposite-sex or same-sex cohabitant, parent (including a person who had accepted the immediate victim as a child of the family), child (including a person who had been accepted by the immediate victim as a child of the family), brother, sister, grandchild or grandparent; or

(c) any other relatives and if so which?

(3) Should individuals not on the statutory list be entitled to lead evidence to establish that they had a close tie of love and affection with the immediate victim?

Abolition of the second and third Alcock criteria

4.22

We turn now to consider whether the second and third Alcock criteria (present at incident or immediate aftermath and perception with own unaided senses) should continue to be required. These criteria lead, for example, to the harsh result that a mother who is told of her son's fatal accident by telephone but is too distraught to go to the hospital will fail in her claim for psychiatric injury. However, if she had been less immediately affected and went at once and saw him die she would succeed. The following cases are further illustrations of the injustice produced by the criteria. In Ravenscroft v Rederiaktiebølaget Transatlantic

^[174]

Tranmore v T E Scudder Ltd

^[175]

Taylorson v Shieldness Produce Ltd

^[176]

Taylor v Somerset Health Authority

^[177]

In many of the other jurisdictions that we have studied there is either no requirement for direct perception of the accident or its immediate aftermath or the courts are in the process of abandoning this requirement. Germany permits claims where the death or injury of the immediate victim is communicated to the pursuer in some way, for example, by a telephone call.

^[178]

Barnard v Santam Bpk

^[179]

Jaensch v Coffey

^[180]

Coates v Government Insurance Officer of New South Wales

As far as post traumatic stress disorder is concerned the duration, severity of threat to life, extent of injury and loss of life and property affect the likelihood of developing this disorder.

^[186]

^[187]

Furthermore, the aftermath of an incident is not a precise term. It is therefore difficult to decide whether or not a pursuer with an undoubted psychiatric injury fulfils this requirement. The aftermath rule leads to harsh and unjustified distinctions based on the length of time between the accident and the secondary victim seeing the dead or injured person. A claim for damages under paragraphs (a) and (b) of section 1(4) of the Damages (Scotland) Act 1976 (distress contemplating deceased's suffering before death and grief at death) in respect of the death of an immediate family member is not subject to the Alcock criteria. It is anomalous that distress and grief are not subject to the Alcock criteria while a more disabling psychiatric injury is.

4.26

On the other hand, removing the need for these two criteria might increase the number of claims to a substantial extent. A large-scale incident like Hillsborough, Piper Alpha or the World Trade Centre could give rise to an enormous number of large value claims which are presently barred, with consequential effects on the solvency of insurance companies and the general level of insurance premiums. Another argument against abolition is that it might create difficulties for the courts. It is hard enough to resolve conflicting evidence as to whether a person suffered psychiatric injury through seeing an accident; it could be even harder where the injury was averred to have been caused by being told about it.

4.27

Nevertheless, provisionally we agree with the Law Commission's recommendation

^[188]

Alcock

7. A claim for damages for psychiatric injury suffered as a result of the death or injury of another individual should be competent regardless of:

(a) the pursuer's closeness in time or space to the accident or its aftermath, or

(b) the means by which the pursuer learnt of the death or injury.

Rescuers

We turn now to discuss rescuers, a type of pursuer that is difficult to fit into the normal categories of primary and secondary victims. In Chadwick v British Railways Board

^[189]

Frost

v Chief Constable of South Yorkshire Police

^[190]

Page v Smith

^[191]

Chadwick

^[192]

volenti

Page v Smith,

^[193]

^[194]

^[195]

We think that rescuers should be entitled to claim for psychiatric injury arising out of their involvement in an accident where people are killed or injured. It is foreseeable that if a serious accident occurs, ordinary people (not just professional rescuers) will go to the assistance of the victims. It is also foreseeable that rescuers may suffer physical and/or psychiatric injuries as a result of their involvement. The losses arising from such psychiatric injuries should not be borne by the rescuers themselves.

4.30

The current law is that rescuers are not in any privileged position but are treated as primary victims if they were, like any other person, in actual or reasonably apprehended physical danger. In Frost the House of Lords added the physical danger requirement in order to prevent police officers at Hillsborough claiming damages for psychiatric injuries after the earlier case of Alcock had denied the right of relatives of the victims to claim. The new rule has the advantage of not requiring rescuers to be separately defined, but it seems unrealistic. The psychiatric injuries will often arise from the horror of what the rescuers experience rather than any concern for their own personal safety. It is also liable to lead to harsh anomalies. For example, a rescuer who had been in some physical danger could recover for psychiatric injury, while others who were not in any danger could not recover, however crippling their psychiatric injuries.

4.31

The Law Commission did not make any recommendation on rescuers as it agreed with the law as it stood in 1998, ie before the decision of the House of Lords in Frost. Echoing the then law the Commission said "It should not be a condition for a rescuer's entitlement to recover damages for psychiatric illness that he or she is in physical danger."

^[196]

Frost

^[197]

Fenn v City of Peterborough

^[198]

We think that rescuers are best regarded as a special class of secondary victims who need not satisfy the normal requirement of having close ties of love and affection with the dead or injured. Some definition of rescuer will be necessary as not everyone who assists in the aftermath of an accident should be regarded as a rescuer. In his dissenting opinion in Frost Lord Griffiths suggested that those who offered immediate help at the scene of the accident should qualify while those who simply assisted and treated the victims once they were safe should not.

^[199]

^[200]

Should there be a different test for "professional rescuers", such as members of the police and fire services? The current approach is that they are not debarred from claiming damages for personal injury arising in the course of their duty,

^[201]

^[202]

We propose that:

8. (1) A claim for damages should be competent by a person who assists at the site of an accident in the immediate aftermath and suffers psychiatric injury as a result of being closely involved with dead or injured victims whether or not that person:

(a) was in any actual or apprehended physical danger, or

(b) had a close tie of love and affection with any of the victims.

(2) There should not be a different rule for members of the rescue services who assist at an accident as part of their duties of employment.

Claims where immediate victim has only a psychiatric injury

4.35

So far we have been considering the situation where the secondary victim claims damages arising out of the death or physical injury of the immediate victim. We now turn to look at the situation where the immediate victim's injuries are purely psychiatric. That person would be a primary victim and as such have to satisfy the criteria for liability as proposed in Part 3.

^[203]

Page v Smith

^[204]

Alcock

^[205]

It could be argued that a secondary victim's psychiatric injuries are just as debilitating and worthy of compensation whether the immediate victim is physically or psychiatrically injured. On the other hand, allowing claims where the immediate victim's injuries are purely psychiatric could be regarded as an unwelcome extension of the wrongdoer's liability. In France, damages are awarded for "dommage moral" caused by seeing an "être cher" injured. Such damages, called "dommage moral par ricochet", have been criticised as potentially giving rise to an endless series of claims. B claims for psychiatric injury on seeing A's psychiatric injury as the result of an accident; C claims as a result of seeing B's psychiatric injury and so on.

^[206]

At this stage we express no view but ask the following question:

9. Should a secondary victim be entitled to claim damages for a psychiatric injury arising out of injuries to another person caused by a wrongdoer's negligence where that person's injuries are purely psychiatric?

Part 5 Other liability issues

Introduction

5.1

In this Part we consider what duty of care is owed to the secondary victim by the wrongdoer and the primary or immediate victim. It is clear that the wrongdoer owes a duty of care to the secondary victim which is separate from that owed to the immediate victim. In Bourhill v Young

^[207]

Dependency of secondary victim's claim

Professor Rodger has argued that the success of a secondary victim's claim for pure psychiatric injury is reliant on the existence of a breach of a duty of care owed to the immediate victim and that defences such as volenti non fit injuria and contributory negligence available against the immediate victim should also be available to defeat or limit the claims of a secondary victim.

^[208]

volens

causa causans

Another argument for Professor Rodger's approach is that it avoids inconsistencies which can occur where the immediate victim was contributorily negligent. In Alcock v Chief Constable South Yorkshire Police

^[209]

^[210]

"…I can visualise great difficulty arising, if this be the law, where the accident, though not solely caused by the primary victim has been materially contributed to by his negligence. If, for instance, the primary victim is himself 75 per cent responsible for the accident, it would be a curious and wholly unfair situation if the plaintiff were enabled to recover damages for his or her traumatic injury from the person responsible only in a minor degree whilst he in turn remained unable to recover any contribution from the person primarily responsible since the latter's negligence vis-à-vis the plaintiff would not even have been tortious."

However, this "curious and wholly unfair situation" would be avoided if, as we discuss in paragraphs 5.11 to 5.20 below, the immediate victim were liable for the balance of the secondary victim's claim.

To allow a secondary victim an independent claim for psychiatric injury against the wrongdoer would be inconsistent with other legislation dealing with similar claims. Where a primary victim has died, members of his immediate family may claim for non-patrimonial loss (grief, distress and loss of society) arising out of the death under section 1(4) of the Damages (Scotland) Act 1976. Section 1(2) of that Act provides that:

"No liability shall arise…if the liability to the deceased or his executor in respect of the act or omission has been excluded or discharged (whether by antecedent agreement or otherwise) by the deceased before his death, or is excluded by virtue of any enactment."

Furthermore, the immediate family member's claim is reduced by any contributory negligence on the part of the deceased.^[211] Suppose the immediate victim had been volens. This prevents any claim for non-patrimonial loss under the 1976 Act, but a member of the deceased's immediate family who suffered a psychiatric injury from the death would be entitled to claim as a secondary victim unless the defence also applied to that claim.

An entirely independent claim for secondary victims is also inconsistent with relatives' claims under the Administration of Justice Act 1982. A relative of the injured person may claim for reasonable remuneration for providing necessary services to the injured person, such as housekeeping or personal care.

^[212]

^[213]

The counter argument is essentially as follows. If the Alcock criteria are satisfied and it is reasonably foreseeable that the secondary victim will suffer psychiatric injury as a result of the wrongdoer's conduct, the wrongdoer owes a duty of care to the secondary victim which is not only separate but entirely independent of the duty owed to the immediate victim. Consequently, even if the immediate victim was volens there should still be a breach of the duty owed by the wrongdoer to the secondary victim (unless, of course, the secondary victim was also volens). Similarly, if the immediate victim was contributorily negligent, this should not affect an action brought by the secondary victim. The wrongdoer has committed a delictual wrong against the secondary victim and the conduct of the primary victim should be irrelevant.

5.7

In its Report on Liability for Psychiatric Injury,

^[214]

^[215]

Alcock v Chief Constable South Yorkshire Police

^[216]

"There may, indeed, be no primary "victim" in fact. It is, for instance, readily conceivable that a parent may suffer injury, whether physical or psychiatric, as a result of witnessing a negligent act which places his or her child in extreme jeopardy but from which, in the event, the child escapes unharmed".

The Commission also considered that it was justifiable that the secondary victim should be entitled to claim damages for psychiatric injury even though the immediate victim had agreed an exclusion clause exempting the wrongdoer from liability or had been injured in the course of a criminal enterprise. The wrongdoer should not be able to ignore the claims of secondary victims who it was reasonably foreseeable were likely to sustain psychiatric injury as a result of the acts or omissions of the wrongdoer.

Other jurisdictions seem divided on the line to be taken on these difficult issues. In Dillon v Legg,

^[217]

"If any such defence is sustained and the defendant found not liable for the death of the child because of the contributory negligence of the mother, sister or child, we do not believe that the mother or sister should recover for the emotional trauma that they have allegedly suffered. In the absence of the primary liability of the tortfeasor for the death of the child, we see no ground for an independent and secondary liability for claims for injuries by third parties."

In Germany the Bundesgerichtshof has held^[218] that where the primary victim has been contributorily negligent the secondary victim's damages should be reduced accordingly. However, in the Australian case of Jaensch v Coffey^[219] Brennan J stated that it is "now settled law that the duty owed to one is not to be regarded as secondary to or derived from the duty owed to the other", and in White v Butcher^[220] parents who suffered psychiatric injury as a result of a serious accident to their daughter recovered damages unaffected by her contributory negligence. Several Australian jurisdictions have legislated for "nervous shock".^[221] In Scala v Mammolitti^[222] the High Court of Australia held that section 4 of the New South Wales Law Reform (Miscellaneous Provisions) Act 1944^[223] created a new statutory duty of care to the secondary victim and that liability to the immediate victim was immaterial. Mullany and Handford assert^[224] that under the various Australian statutes it is clear that secondary victims have an independent claim and it therefore follows that such a claim is unaffected by contributory negligence on the part of the immediate victim.

While we appreciate the force of the argument that a secondary victim should have a right of action which is entirely independent from that of the immediate victim, nevertheless we find the anomalies unattractive. Although we accept that the wrongdoer owes a duty of care to the secondary victim which is separate from that which is owed to the immediate victim, at this stage it is our provisional view that in a secondary victim's claim the wrongdoer should be able to use any defences which are pleadable against the immediate victim. As we shall discuss in the next section,

^[225]

volens

The Law Commission considered that a secondary victim should have a right of action where the immediate victim has suffered no harm at all.

^[226]

^[227]

^[228]

Liability of immediate victims to their relatives

Another issue is whether an immediate victim owes a duty of care not to cause psychiatric injury to any secondary victim. This issue can arise either in tripartite cases where the immediate victim is volens or contributory negligent or in cases where the immediate victim is solely responsible for his or her own injury, as for example where the immediate victim commits or attempts suicide or participates in dangerous sport.

5.12

In Greatorex v Greatorex

^[229]

Alcock

^[230]

^[231]

In its Report on Liability for Psychiatric Illness, the Law Commission recommended that the court should have a discretion to disallow a claim for psychiatric injury arising out of the immediate victim's death or injury where it was satisfied that imposition of liability would not be just and reasonable because the immediate victim chose to cause his or her own death or injury.

^[232]

^[233]

As the Commission acknowledged, its formula has the disadvantage of the pursuer being able to claim if the conduct of the injured close relative was negligent, but not if it was deliberate. Cazalet J was also aware of this in Greatorex v Greatorex, drawing attention to a potential "paradoxical situation" in which it will be in the defendant's interest to argue that the incident which caused the secondary victim's psychiatric injury was deliberate, while the secondary victim will be seeking to persuade the court that it was inadvertent.

^[234]

Other jurisdictions have confronted this problem with differing results. At first, the courts in Australia refused to accept claims by secondary victims where the immediate victim was responsible for his or her own death or injury.

^[235]

Shipard v Motor Accidents Commission

^[236]

FAI General Insurance Co Ltd v Lucre

^[237]

^[238]

"[A] person is under no legal duty, whatever the moral position may be, to look after his own life and limb simply in order to save his dependants from the likely physical effects on them if he is killed or maimed: to impose such a legal duty…would be to restrict a person's self-determination in a manner inconsistent with our legal system.".

However an exception was deemed acceptable in "peculiar cases", such as where a person commits suicide in a "deliberately shocking manner". Courts in the USA recognise that people who inflict harm on themselves may in appropriate circumstances be liable for the emotional distress thereby caused to secondary victims.^[239]

There are difficulties with the present situation in the United Kingdom. Family members may currently sue one another in respect of physical injuries.

^[240]

Greatorex

It would be simpler to have no bar, absolute or discretionary. The argument against family strife can be overstated. Close relatives are already able sue each other in contract or delict but rarely do so. It is usually only where the claim will be met by some third party (such as an insurance company) that it is made. Indeed, it is more likely that close relatives will sue one another if both parties' financial situations would be improved through such an action, but actions are unlikely to be numerous because of the requirement that the pursuer must have suffered a significantly disabling psychiatric injury. Furthermore, a secondary victim would not succeed unless the psychiatric illness was a probable consequence of the wrongdoer's conduct to a person of ordinary fortitude in the position of the pursuer.

5.18

We therefore seek views on whether individuals should have a duty of care not to cause psychiatric injury to their close relatives. If a wrongdoer owes a general duty of care to the relatives of an immediate victim (people who will inevitably be strangers) should it not follow a fortiori that a "wrongdoer" who is also the immediate victim should owe a duty of care to their own relatives (people who are obviously not strangers)?

5.19

On the issue of the secondary victim suing the primary victim for the remaining proportion of damages where the immediate victim has been contributorily negligent, we see no reason why this should be disallowed. The wrongdoer and the immediate victim could be held jointly liable for the psychiatric injury incurred by the secondary victim.

5.20

We therefore seek views on the following proposals:

10. (1) While the secondary victim is owed an independent duty of care by the wrongdoer, nevertheless any defences available to the wrongdoer against the immediate victim should extend to the secondary victim.

(2) There should be no bar against secondary victims suing immediate victims where the immediate victim has been wholly responsible for his or her own injuries, ie individuals owe a duty of care to their close relatives not to cause them psychiatric injury.

(3) The wrongdoer and immediate victim should be held jointly liable to the secondary victim where the immediate victim has been contributorily negligent.

Part 6 List of Proposals

1

(1) It should continue to be the position that no compensation may be claimed for mere mental distress.

(2) Should the compensatable category be defined as a significantly disabling psychiatric injury or in some other way?

(Para 2.9)

It should be competent to claim damages for a psychiatric injury even though it was not induced by shock.

(Para 2.14)

(1) A duty of care not to cause psychiatric injury should arise when it is reasonably foreseeable that the pursuer will sustain psychiatric injury as a consequence of the defender's conduct.

(2) The pursuer should not have to be within the area of potential physical harm before a duty of care to prevent psychiatric injury can arise.

(3) A duty of care to prevent psychiatric injury should not be breached if in the circumstances of the case some kind of psychiatric injury to the pursuer was not reasonably foreseeable as a probable consequence of the defender's conduct.

(4) Where there has been a breach of a duty of care not to cause the pursuer physical harm, ie the pursuer has in fact sustained physical injury, the pursuer should continue to be able to recover damages for unforeseeable psychiatric injury: otherwise damages should be recovered only if some kind of psychiatric injury was foreseeable as a probable consequence of the defender's conduct.

(5) Where the defender owes the pursuer a duty of care not to damage the pursuer's property, the pursuer should be able to recover damages for psychiatric injury arising from damage to the property provided that psychiatric injury to the pursuer was reasonably foreseeable as a probable consequence of the defender's negligence.

(6) In determining whether psychiatric injury is reasonably foreseeable for these purposes the pursuer should be regarded as a person of reasonable fortitude unless the defender has knowledge of the pursuer's unusual susceptibility to psychiatric injury.

(Para 3.36)

(1) A person should continue to be entitled (subject to satisfying other requirements) to claim damages for a psychiatric injury suffered as a result of another individual's personal injury or death.

(2) There should be no statutory limit set to the amount of such damages.

(Para 4.8)

It should continue to be a requirement for a claim for psychiatric injury suffered as a result of another person's death or personal injury that the pursuer had a close tie of love and affection with that person.

(Para 4.13)

(1) Should there be a statutory list of individuals deemed to have a close tie of love and affection with the immediate victim, or should the existing common law be retained whereby certain close relatives are presumed to have a close tie while others may establish a close tie?

(2) If there is to be a statutory list, should it comprise:

(a) spouse, opposite-sex or same-sex cohabitant, parent (including a person who had accepted the immediate victim as a child of the family), child (including a child who had been accepted by the immediate victim as a child of the family) and sibling; or

(b) those entitled to sue for non-patrimonial loss under the Damages (Scotland) Act 1976 which we have recommended should be; spouse, opposite-sex or same-sex cohabitant, parent (including a person who had accepted the immediate victim as a child of the family), child (including a person who had been accepted by the immediate victim as a child of the family), brother, sister, grandchild or grandparent; or

(c) any other relatives and if so which?

(3) Should individuals not on the statutory list be entitled to lead evidence to establish that they had a close tie of love and affection with the immediate victim?

(Para 4.21)

A claim for damages for psychiatric injury suffered as a result of the death or injury of another individual should be competent regardless of:

(a) the pursuer's closeness in time or space to the accident or its aftermath, or

(b) the means by which the pursuer learnt of the death or injury.

(Para 4.27)

(1) A claim for damages should be competent by a person who assists at the site of an accident in the immediate aftermath and suffers psychiatric injury as a result of being closely involved with dead or injured victims whether or not that person:

(a) was in any actual or apprehended physical danger, or

(b) had a close tie of love and affection with any of the victims.

(2) There should not be a different rule for members of the rescue services who assist at an accident as part of their duties of employment.

(Para 4.34)

Should a secondary victim be entitled to claim damages for a psychiatric injury rising out of injuries to another person caused by a wrongdoer's negligence where that person's injuries are purely psychiatric?

(Para 4.37)

(1) While the secondary victim is owed an independent duty of care by the wrongdoer, nevertheless any defences available to the wrongdoer against the immediate victim should extend to the secondary victim.

(2) There should be no bar against secondary victims suing immediate victims where the immediate victim has been wholly responsible for his or her own injuries, ie individuals owe a duty of care to their close relatives not to cause them psychiatric injury.

(3) The wrongdoer and immediate victim should be held jointly liable to the secondary victim where the immediate victim has been contributorily negligent.

(Para 5.20)

Appendix A

Other Jurisdictions

1

Australia

1.1

While Australian courts draw heavily on United Kingdom case law when dealing with psychiatric injury, it is acknowledged that:

"In Australia the Courts have indicated a willingness to take a more relaxed approach to questions of proximity. However, proof of a psychiatric disorder or illness as a result of a sudden shock has been required."^[241]

Indeed, distress is not deemed sufficient as a basis for a psychiatric injury claim. In Mount Isa Mines Ltd v Pusey,^[242] Windeyer J said "A plaintiff in an action of negligence cannot recover damages for a "shock", however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening.".

Australian courts appear to follow the Alcock criteria for secondary victims. In considering the first criterion - the need for a tie of love and affection - Mullany and Handford state that traditionally Australian courts have focused only on immediate family ties, restricting recovery to those within the special relationships of spouse, child and parent.

^[243]

Swan v Williams (Demolition) Pty Ltd

^[244]

^[245]

^[246]

Whether it is necessary for a secondary victim to have been present at, and have directly perceived, the accident or its immediate aftermath (the second and third Alcock criteria) remains an open question. In Jaensch v Coffey

^[247]

^[248]

Coates v Government Insurance Office of New South Wales

^[249]

^[250]

Annetts v Australian Stations Pty Ltd

^[251]

Reeve v Brisbane City Council

^[252]

Quayle v State of New South Wales

^[253]

A claimant must have suffered a "shock": a sudden sensory perception.

^[254]

Anderson v Smith

^[255]

The case of Morgan v Tame

^[256]

Page v Smith

Trindade and Cane

^[257]

Page v Smith

"[Page v Smith] is inconsistent with basic principles of foreseeability in the law of negligence and with the approach to hypersensitivity...If accepted in Australia, the decision would require courts to distinguish between primary victims of nervous shock who were subjected to a risk of foreseeable bodily injury and those who were not."

They move on to discuss the English case of Schneider v Eisovitch,^[258] where a husband and wife were injured in a car accident. The wife learned of the death of her husband at a later date as she had been unconscious until then. The court held that the wife could recover, not only for nervous shock resulting from her injuries, but also for shock resulting from being told of the accident. The defendant owed her a duty not to cause her physical injuries and she could add the nervous shock caused by the bad news on to the consequences of that breach of duty (even though that was not a consequence of the bodily injury). The case has been applied in at least two Australian decisions.^[259] The authors consider that these decisions are "open to objection on technical grounds because it is clear (subject to acceptance of the rule in Page v Smith) that in order to be liable for nervous shock the defendant must owe the plaintiff a duty not to cause nervous shock rather than a duty not to cause physical damage".^[260]

The Australian courts have moved away from barring claims where the defendant is the immediate victim. In FAI General Insurance & Anor v Lucre

^[261]

Jaensch v Coffey

^[262]

Australian law protects employees from foreseeable psychiatric injuries. In State of NSW v Seedsman,

^[263]

Mount Isa Mines v Pusey

^[264]

^[265]

Several Australian jurisdictions have enacted legislation. New South Wales made statutory provision for "injury arising from mental or nervous shock" in the Law Reform (Miscellaneous Provisions) Act 1944 (the "1944 Act"). The Australian Capital Territory

^[266]

^[267]

The 1944 Act provides:

"4(1) The liability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by –

(a) a parent or the husband or wife of the person so killed, injured or put in peril; or

(b) any other member of the family of the person so killed, injured or put in peril where such person was killed, injured or put in peril within the sight or hearing of such member of the family."

Section 4(5) of the Act defines "member of the family" to mean the husband, wife, parent, child, brother, sister, half-brother, half-sister of the person and goes on to define "parent" to include father, mother, grandfather, grandmother, stepfather, stepmother and any person standing in loco parentis to another. "Child" is defined in a similarly extended fashion.

1.11

Notably, only parents and spouses may claim without having been spatially or temporally proximate to the accident. Other family members, including children, must see or hear the accident. This rule was challenged in Gifford v Strang Patrick Stevedoring Pty Ltd.

^[268]

^[269]

^[270]

"It is not possible to compensate everyone who is injured, and the law must draw lines. It should be kept in mind that the civil standard of proof on the balance of probabilities necessarily means that damages may sometimes be awarded for injuries which did not occur or have been exaggerated, and/or against persons whose actions did not cause them. It is difficult enough for courts to resolve conflicting evidence in relation to claimed physical injuries, and harder still to do so in relation to claimed mental injuries to persons actually perceiving a horrific event. It is or would be much harder again to resolve conflicting evidence in relation to mental injuries claimed to arise from merely hearing about horrific events. Floodgates arguments are often criticised, but there are limits to the compensation that the community can afford to pay, particularly in relation to claimed injuries the existence and causation of which are so difficult to determine with assurance. In my opinion, it is reasonable to maintain the line that has been drawn in the cases."

There have been instances where the common law has been utilised in New South Wales to allow "family members" (not including parents or spouses) to recover damages. For example, in Quayle v State of New South Wales

^[271]

On the issue of dependency of the secondary victim's claim,

White v Butcher

Jaensch

Canada

It is clear that in order to recover damages for psychiatric injury in Canada, a plaintiff must have incurred a recognisable psychiatric illness.

^[277]

Rhodes v Canadian National Railway

^[278]

Mason v Westside Cemeteries Ltd

^[279]

Vanek v The Great Atlantic and Pacific Company of Canada Limited.

^[280]

^[281]

It has been suggested that causing "nervous shock" is a seotherste tort.

^[282]

^[283]

Bechard v Haliburton Estate

^[284]

Nespolon v Alford

potentially limited by policy considerations

^[285]

Whether a secondary victim's psychiatric injury was reasonably foreseeable and hence compensatable by the wrongdoer depends on the existence of a proximity relationship. This relationship is made up of a number of factors; the relationship between the secondary and the immediate victim, being present at the shocking event or shortly thereafter, and direct perception of it. The relationship is regarded as a predominant factor. Damages have been awarded for psychiatric injury arising out of the death or injury of a wife and children,

Canadian courts are reluctant to exclude rescuers from the class of persons who may sue for psychiatric injury. In Fenn v City of Peterborough

^[292]

Bechard v Haliburton Estate

^[293]

In Duwyn v Kaprielian

^[294]

"I appreciate that…a defendant does not have to foresee the precise way in which the damage is caused as a condition of liability. However, these factors do not, in my view, allow for a situation where it seems likely that, but for Mrs Duwyn's particular hypersensitivity…she would not have reacted in the extreme way that she did, whether she was at the scene of the accident or had come upon it just after.

When considering the Canadian decisions where the plaintiff's susceptibility was in fact taken into account,^[295] Mullany and Handford maintain that approaching psychiatric injury cases "from the question of plaintiff sensitivity is contrary to general principles of negligence."^[296]

France

3.1

In French law, there are no statutory provisions dealing specifically with the issue of damages for psychiatric injury. The cornerstone of the French law of delict is article 1382 of the Civil Code, which provides that:

"Tout fait quelconque de l'homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé, à le réparer."

"Dommage" is not qualified in article 1382. Consequently, damages for "dommage moral" are not excluded by the Civil Code.

3.2

The French Supreme Court (Cour de Cassation) granted damages for "préjudice moral" for the first time in 1833.

The death of the victim is not a necessary condition. The courts have made it clear that the case of an injury to the victim is also covered. Damages can be awarded not only for the pain caused by the loss of an "être cher", but also for the pain caused by witnessing such a person suffer.

^[302]

^[303]

Germany

4.1

Mullany and Handford maintain:

"…recovery for such harm [emotional suffering] is rather more limited in German law than in most other civil law countries. The German Bürgerliches Gesetzbuch, which was enacted nearly a hundred years later than the French Code and had a rather different genesis, does not have a general principle of liability similar to the French art 1382 and does not recognise any general protected interest in freedom from emotional injury."^[304]

In Germany, victims of psychiatric injury must meet the criteria of § 823 I BGB, which demand evidence of an injury to health. As, according to von Bar, most claimants cannot meet this demand,

^[305]

Regarding the concept of "psychiatric illness", in 1971 the Bundesgerichtshof stated:

"…liability for harm psychically occasioned…must be limited to cases where the man in the street, and not only a medical practitioner, would describe it as injury to…health…Injuries which are medically ascertainable but do not amount to a "shock" to the system will go uncompensated…No claim can be made in the normal case of deeply felt grief…".^[306]

If the victim does manage to overcome this hurdle, he must subsequently pass the test of the adequate cause (Adäquanztest) and, in the case of "secondary victims", prove that the "indirect violation" could be foreseen.^[307] Markesinis claims that this reliance on Adäquanztest "shows the tendency of German law (and modern civil law in general) to use normative concepts of causation in cases where Common lawyers would more evidently have recourse to the notion of duty of care.".^[308] The death of the primary victim^[309] and his serious injury^[310] constitute adequately causal events, whereas property damage^[311] is deemed inadequate.

Although there is no decision expressly on the point, it has been inferred

In Germany, the thin skull rule extends to psychiatric injury cases.

^[318]

"Indemnity payment is not limited to physically ascertainable injuries only but also covers those damages which cause a decrease of work capacity traceable to the victim's psychological reaction to an accident and his physical injuries."^[319]

Furthermore, Janssens claims that "[N]either a physical nor a psychical predisposition debars a plaintiff from recovering in full."^[320]

On the issue of rescuers, German courts are generally willing to award damages to "Good Samaritans".

^[321]

In the leading case of BGH 11 May 1971, the issue arose of whether or not the secondary victim plaintiff's claim was dependent upon that of the primary victim. The plaintiff's husband was fatally injured in a car accident for which he was partly responsible. The Bundesgerichtshof held that the plaintiff's damages should be reduced accordingly as "his [the primary victim's] tragedy becomes hers".

^[322]

"In such a case, where it would be wrong to require the primary victim or his heirs to make contribution to the tortfeasor, it is only fair that the primary victim's causal contribution to the accident should be borne not by the stranger who triggered the harm but by the dependant who was hurt only because of her personal relationship with the primary victim and her identification with him."^[323]

The Bundesgerichtshof made a further observation that in the circumstance where the primary victim's death or injury can be solely attributable to his failure to take care of himself, the plaintiff would have no claim for her consequent injury. The Bundesgerichtshof maintained:

"[A] person is under no legal duty, whatever the moral position may be, to look after his own life and limb simply in order to save his dependants from the likely physical effects on them if he is killed or maimed: to impose such a legal duty…would be to restrict a person's self-determination in a manner inconsistent with our legal system."^[324]

Ireland

5.1

It has been observed that:

"[T]he Irish courts engage in no such judicial semantics as do the House of Lords. They employ a more objective approach to such cases, based on a proper judicial application of the laws of negligence to all the facts of the case. The Irish courts are also acutely aware that no immutable rule can establish the extent of liability for every circumstance of the future. This case-by-case approach leads to a more equitable outcome than that based on hard, policy-driven requirements.^[325]

While case law in Ireland is limited,

^[326]

^th

^[327]

A leading modern case is Kelly v Hennessy.

^[328]

(a) The plaintiff must establish that he suffered a recognisable psychiatric illness;

(b) The plaintiff must establish that his recognisable psychiatric illness was "shock induced";

(c) The plaintiff must prove that the nervous shock was caused by the defendant's act or omission;

(d) The nervous shock sustained by the plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff;

(e) The plaintiff must show that the defendant owed him a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock.

On Kelly, McMahon J said in the later case of Curran v Cadbury (Ireland) Ltd^[329]:

"From the Supreme Court's reliance on the Australian authorities in Kelly, it would seem that the Irish Courts will not be overawed by White [Frost v Chief Constable South Yorkshire Police] and may well choose…to go its own road, especially since White has its critics."

While Irish courts have retained the traditional "shock induced" requirement, according to Mullany and Handford they take a much more "positive attitude to the aftermath problem".

^[330]

Mullally v. Bus Éireann

^[331]

^[332]

Irish courts award damages for stress at work. In McHugh v The Minister of Defence and the Attorney General

^[333]

Curran v Cadbury (Ireland) Limited

^[334]

^[335]

Rescuers who suffer from a psychiatric injury are entitled to claim damages in Ireland. This is in line with the policy of England and Wales prior to Frost v Chief Constable of South Yorkshire Police.

^[336]

Frost

"It is very evident that the rescuer's situation at law would be differently viewed by an Irish court. His case would be decided on its facts, and on the evidence of medical experts and of other witnesses in all the circumstances of the case; it would be irrelevant whether or not he had been exposed to physical danger during the rescue."^[337]

New Zealand

6.1

The Accidents Compensation Act 1972 set up a statutory compensation scheme for, among other things, personal injury by accident.

^[338]

Accident Compensation Commission v E

^[339]

...

King v Accident Compensation Commission

^[340]

The Accident Rehabilitation and Compensation Insurance Act 1992

^[341]

Queenstown Lakes District Council v Palmer

^[342]

"[T[he New Zealand Court of Appeal has the luxury of an unsoiled local common law. Other ultimate courts of appeal might well wish they had the opportunity to start with a clean slate".^[343]

To date, the courts have naturally been influenced by other jurisdictions. It has been held that a plaintiff must have a recognisable psychiatric illness and that grief per se is not the subject for a claim of damages.

^[344]

van Soest v Residual Health Management Unit

South Africa

Prior to 1973, South African law "languished in the doldrums"

^[349]

^[350]

Bester v Commercial Union Versekeringsmaatskappy van SA Bpk

^[351]

"[T]here is no reason in our law why somebody who, as the result of the negligent act of another, has suffered shock or psychiatrical [sic] injury with consequent indisposition, should not be entitled to compensation, provided the possible consequences of the negligent act should have been foreseen by the reasonable person who should find himself in the place of the wrongdoer. This does not refer to insignificant emotional shock of short duration which has no substantial effect on the health of the person, and in respect of which compensation would not ordinarily be recoverable."^[352]

Since then the law has developed in a relatively relaxed manner. The Alcock control mechanisms are not so rigidly in place in South Africa. With respect to the first requirement of a close tie of love and affection, South African law accepts that the closer the relationship between primary victim and traumatised person, the more reasonable the inference that such shock is reasonably foreseeable.

^[353]

Bester

Masiba & Anor v Constantia Insurance Co

^[354]

^[355]

In Barnard v Santam Bpk

^[356]

Alcock

^[357]

Barnard

^[358]

South Africa extends the thin skull rule to psychiatric injury cases where the psychiatric injury is a result of physical injury. In Gibson v Berkowitz,

^[359]

United States of America (USA)

8.1

Generally speaking, a restrictive attitude is adopted regarding liability for psychiatric injury suffered by secondary victims, but the position varies from state to state. Traditionally, all victims were required to have been inside the "zone of danger". Indeed, it was as late as 1968 when, in Dillon v Legg,

^[360]

Thing v La Chusa

^[361]

Other states allowing liability for plaintiffs outside the zone of danger include Nebraska

Dillon v Legg

The terminology used in the USA to describe what constitutes "psychiatric injury" for legal purposes is inconsistent. It has been noted that courts in the USA:

"…have adopted the undisciplined practice of referring to "emotional distress" and "mental distress" to cover both the initial emotional reaction to traumatic stimuli and the secondary more serious physical and psychiatric consequences which may flow from them."^[371]

However, Markesinis and Deakin consider that^[372]:

"[A]ll courts try to restrict recovery to serious emotional distress and payment of claims for transient or slight distress is actively discouraged. Moreover, the precipitating event must have been one that would produce serious emotional distress…in a reasonably strong-minded person".

Thus, for example, it was held in Asaro v Cardinal Glennon Memorial Hospital^[373] that in order to claim successfully as a "secondary victim" the emotional distress or mental injury must be medically diagnosable and must be of sufficient severity so as to be medically significant. In the Californian case of Thing v La Chusa^[374] the court held that the plaintiff must suffer emotional distress beyond what would be expected in a disinterested witness.

Many states allow recovery for emotional injury produced by having witnessed the injury or death of a loved one provided the claimant had a close relationship with the loved one. Close relationships tend to be confined to the immediate family, ie parents, children, spouses and siblings.

^[375]

Thing v La Chusa

^[376]

Trombetta v Conkling et al

^[377]

"On firm public policy grounds, we are persuaded that we should not expand the cause of action for emotional injuries to all bystanders who may be able to demonstrate a blood relationship coupled with significant emotional attachment or the equivalent of an intimate, immediate familial bond."^[378]

Of course, it is significant that New York is restrictive within this area of law generally, retaining the zone of danger rule.

Regarding claims by secondary victims where the immediate victim was wholly or substantially responsible for his or her own death or injury, Handford states

^[379]

"Though the development of liability for the negligent infliction of "emotional distress" has generally proceeded more slowly in the US than elsewhere in the common law, there does not seem to have been any difficulty with recognition of liability for self-inflicted harm in appropriate circumstances: see eg Devereux v Allstate Insurance Co;^[380] Guillory v Arceneux;^[381] Camper v Minor^[382]".

In Dillon v Legg

^[383]

"If any such defence is sustained and the defendant found not liable for the death of the child because of the contributory negligence of the mother, sister or child, we do not believe that the mother or sister should recover for the emotional trauma that they have allegedly suffered. In the absence of the primary liability of the tortfeasor for the death of the child, we see no ground for an independent and secondary liability for claims for injuries by third parties."

The approach to those who suffer psychiatric injury from feeling themselves responsible for unwittingly inflicting harm on others due to unknown defects in equipment (the so-called "unwilling participants") again varies from state to state. In California, for example, the plaintiff in Kately v Wilkinson

^[384]

Straub v Fisher and Paykel Health Care

^[385]

Appendix B

Bibliography

Articles

S Allen, ''Rescuers and Employees: The New Secondary Victims?'' (1999) P&MILL 21.

A Bowen, "Earmuffs and Non-slip Flooring for the Soul: Negligence and Occupational Stress" 2002 SLT (News) 81.

Breslau, G C Davis, Anderskip et al, "Traumatic Events and Post Traumatic Stress Disorder in an Urban Population of Young Adults" (1991) 48 Archives of General Psychiatry 216.

D Brodie, ''The Clockwork Orange and Nervous Shock'' (1999) Rep B 28-3.

D J Christie, ''Breached Duties, Broken Minds'' (2000) SLPQ 376.

M Dunne, ''Secondary Victims and Nervous Shock'' (2000) BR 383.

T K Feng, ''Nervous Shock to Primary Victims'' (1995) SJLS 649.

C Foster, ''Behind the Corporate Bikeshed'' (2001) 145 SJ 18.

P R Handford, ''A New Chapter in the Foresight Saga: Psychiatric Damage in the House of Lords'' (1996) 4 Tort L Rev 5.

P R Handford, ''Psychiatric Damage where the Defendant is the Immediate Victim'' (2001) 117 LQR 397.

C A Hopkins, "A New Twist to Nervous Shock" (1995) 54 CLJ 491.

M Janssens, ''Nervous Shock Liability: A comparative study of the law governing the principles of nervous shock in England, the Netherlands, Germany and France'' (1998) 6 ERPL 77.

G Junor, ''Employers' Liability – Psychiatric Injury'' (2001) Rep B 37-2.

G Kelly, ''Haunted by Hillsborough'', (2001) 95 Law Soc (of Ireland) Gazette, No 7, 18.

G Kelly, ''Post Traumatic Stress Disorder: Military and Police. The Legacy of Hillsborough: Part II'' (1999) 15 ILT 235.

R C Kessler, K A McGonagle, S Zhao et al, "Lifetime and 12 Month Prevalence Rates of DSM IIIR Psychiatric Disorders in the United States" (1994) 51 Archives of General Psychiatry 8.

B McDonald and J Swanton, ''Foreseeability in relation to negligent infliction of nervous shock'' (1995) 69 ALJ 945.

T McGleenan, ''Civil Liability for Post Traumatic Stress Disorder'' (1998) MLJI 52.

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N J Mullany, ''Accidents and Actions for Damage to the Mind – Kiwi Style'' (1999) 115 LQR 596.

NJ Mullany, "Careless Communication of Traumatic Information" (1998) 114 LQR 380.

NJ Mullany, "Containing Claims for Workplace Mental Illness" (2002) 118 LQR 373.

N J Mullany, ''English Psychiatric Injury Law – Chronically Depressing'' (1999) 115 LQR 30.

N J Mullany, ''Personal Perception of Trauma and Sudden Shock – South Africa Simplifies Matters'' (2000) 116 LQR 29.

N J Mullany, ''Psychiatric damage in the House of Lords – Fourth time unlucky: Page v Smith'' (1995) 3 Journal of Law and Medicine 112'.

R Mullender and A Speirs, ''Negligence, Psychiatric Injury, and the Altruism Principle'' (2000) 20 OJLS 645-666.

J K Myers, M M Weissman, G L Tischler et al, "Prevalence of Psychiatric Disorders in Three Communities" (1984) 41 Archives of General Psychiatry 959.

D Robertson, "Liability in Negligence for Nervous Shock" (1994) 57 MLR 649.

B Rodger, ''Nervous Shock and Breach of Duty of Care Owed to Secondary Victims'' 1997 SLT (News) 22.

F S Shuaib, ''Claims for 'nervous shock' by secondary victims in medical negligence cases'' 1999 Professional Negligence 18.

A Sprince, 'Page v Smith – being 'primary' colours House of Lords' judgment'' (1995) 11 PN 124.

Swindle, Cronkite and Moose, "Life Stressors, Social Resources, coping and the 4-Year course of Unipolar Depression" (1989) 98 J of Abnormal Psychology 468.

H Teff, ''Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries'' (1998) 57 CLJ 91.

C Tennant, "Liability for Psychiatric Injury: an Evidence-based Appraisal" (2002) 76 ALJ 73.

J Thomson, ''Damages for Psychiatric Injury – Some Family Connections!'' (2001) 69(1) SLG 24.

J Thomson, ''Damages for Psychiatric Injury – More Family Connections!'' (2001) 69(2) SLG 57.

S Todd, ''Psychiatric Injury and Rescuers'' (1999) 115 LQR 345.

F A Trindade, ''Nervous Shock and Negligent Conduct'' (1996) 112 LQR 22.

L-A Williamson, ''Stress at Work: Damages for Psychiatric Injury'' (1999) 67 SLG 178-179.

Books

P Birks (ed), The Frontiers of Liability (1994)

P Q R Boberg, The Law of Delict Vol 1: Aquilian Liability (1984, South Africa).

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G Kelly, Post Traumatic Stress Disorder and the Law (2000, Ireland).

P Malaurie and L Aynès, Droit civil: les obligations (6^th edn, 1995)

B S Markesinis, A Comparative Introduction to the German Law of Torts (3^rd edn 1994).

B S Markesinis and S F Deakin, Tort Law (4^th edn, 1998).

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M Napier and K Wheat, Recovering Damages for Psychiatric Injury (1995).

F A Trindade and P Cane, The Law of Torts in Australia (3^rd edn, 1999).

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Note 1   Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (S.I. 1999/1820).    [Back]

Note 2   Under the Law Commissions Act 1965, s 3(1)(e).    [Back]

Note 3   Dr Pamela Abernethy, Solicitor, Edinburgh; Dr Douglas Brodie, University of Edinburgh; Dr Chris Freeman, Consultant Psychiatrist, Edinburgh; Mr Ian Mackay QC; Miss Ishbel McLaren, Solicitor, Edinburgh; Mr Peter Milligan, Advocate; and Professor Barry Rodger, University of Strathclyde.    [Back]

Note 4   See paras 2.2-2.9 below. We do not deal with psychiatric injuries to animals, as for example where Ms Gill James, the owner of a showjumper, was awarded £1,000 for the loss of value of her horse which became nervous after a traffic incident, Daily Telegraph, 6 July 2002.    [Back]

Note 5   The 2001 Scheme mirrors the common law of damages for psychiatric injuries. It is likely that if the common law were to be changed equivalent changes would be made to the Scheme.    [Back]

Note 6   It is often not clear whether the provisions exclude claims for psychiatric injury by those involved in the accident or whether claims by those whose psychiatric injury arises from the death or personal injury of the immediate victim are within the scope of the provisions. For example, s 45(1) of the Consumer Protection Act 1987 defines personal injury to include impairment of a person's mental condition, but it is thought secondary victims are not covered. It has recently been decided by the House of Lords that a pure psychiatric illness is not "bodily injury" for the purposes of a claim under the Carriage by Air Act 1961, King v Bristow Helicopters Ltd 2002 SLT 378.    [Back]

Note 7   See paras 3.23-3.24 below.    [Back]

Note 8   We have looked at which relatives should have title to sue for non-patrimonial loss and published our Report on Title to Sue for Non-Patrimonial Loss (Scot Law Com No 187) in August 2002.    [Back]

Note 9   Simpson v Imperial Chemical Industries Ltd 1983 SLT 601; Rorrison v West Lothian Council 2000 SCLR 245; McLoughlin v O'Brian [1983] 1 AC 410. But immediate family members are entitled to claim for non-patrimonial loss (including grief and distress) under the Damages (Scotland) Act 1976 where a person dies as the result of another's careless acts or omissions.    [Back]

Note 10   Wood v Miller 1958 SLT (Notes) 49; Alcock v Chief Constable South Yorkshire Police [1992] 1 AC 310; Hegarty v E E Caledonia Ltd [1997] 2 Lloyd's Rep 259.    [Back]

Note 11   Sion v Hampstead Health Authority [1994] 5 Med LR 170 (CA).    [Back]

Note 12   Cross v Highlands and Islands Enterprise 2001 SLT 1060, Lord Ordinary (Macfadyen) at 1075-1076.    [Back]

Note 13   Alcock v Chief Constable South Yorkshire Police [1992] 1 AC 310, Lord Oliver at 407.     [Back]

Note 14   Page v Smith [1996] AC 155, Lord Lloyd at 184.    [Back]

Note 15   Clarke v Scottish Power plc 1994 SLT 924; Attia v British Gas plc [1988] QB 304.    [Back]

Note 16   Page v Smith [1996] AC 155.    [Back]

Note 17   Alcock v Chief Constable South Yorkshire Police [1992] 1 AC 310.    [Back]

Note 18   Greatorex v Greatorex [2000] 4 All ER 769.    [Back]

Note 19   Alcock v Chief Constable South Yorkshire Police [1992] 1 AC 310, Lord Oliver at 418 "… I cannot, for my part, regard the present state of the law as either entirely satisfactory or as logically defensible"; J Stapleton, "In Restriction of Tort" in P Birks (ed), The Frontiers of Liability, vol 2 at 95 thought that liability for nervous shock is where the silliest rules now exist; H Teff, "Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries", (1998) 57 CLJ 91 at 94 "Unquestionably the prevailing liability rules are a source of embarrassment. … At times it almost seems as if they have been crafted with an eye to untenable distinctions."; Frost v Chief Constable South Yorkshire Police, [1999] 2 AC 455 (sometimes cited asWhite v Chief Constable South Yorkshire Police), Lord Steyn at 500 "… the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify... It must be left to Parliament to undertake the task of radical law reform."    [Back]

Note 20   Law Com No 249.    [Back]

Note 21   Consultation Paper No 137.    [Back]

Note 22   Section B.    [Back]

Note 23   See fn 2 above.    [Back]

Note 24   Scotland Act 1998, s 29(2)(c) and Sch 4.    [Back]

Note 25   Sections C7, C8 and H1 respectively, Scotland Act 1998, Sch 5 and s 29(2)(b).    [Back]

Note 26   1983 SLT 601.    [Back]

Note 27   Ibid at 605. See also Harvey v Cairns 1989 SLT 107, Lord Ordinary (Murray) at 109; Page v Smith [1996] AC 155, Lord Keith at 167, Lord Jauncey at 171 and Lord Lloyd at 189 and 197.    [Back]

Note 28   [1983] 1 AC 410, at 431. In a later case, Hicks v Chief Constable South Yorkshire Police [1992] 2 All ER 65 at 69, Lord Bridge said "…fear by itself, of whatever degree, is a normal humane motion for which no damages can be awarded".    [Back]

Note 29   1983 SLT 601 at 609.    [Back]

Note 30   2000 SCLR 245 at 250.    [Back]

Note 31   Ibid at 254.    [Back]

Note 32   See for example N J Mullany, "Personal Perception of Trauma and Sudden Shock - South Africa Simplifies Matters" (2000) 116 LQR 29.    [Back]

Note 33   See for example Martin v Bell-Ingram 1986 SC 208 (negligent home survey, solatium and diminution of value of property awarded); Fleming v Strathclyde Regional Council 1992 SLT 161 (solatium and damage to home from flooding with sewage); Curran v Docherty 1995 SLT 716 (bungled domestic conveyancing, solatium and cost of rectification awarded); McLelland v Greater Glasgow Health Board 2001 SLT 446 (solatium, loss of earnings and care costs for severely disabled child).    [Back]

Note 34   Apart from those claimed in respect of death under the Damages (Scotland) Act 1976.    [Back]

Note 35   Para 5.6.    [Back]

Note 36   (1970) 125 CLR 383 at 394.    [Back]

Note 37   (1991) 75 DLR (4th) 248 at 264.    [Back]

Note 38   § 823 I BGB.    [Back]

Note 39   C von Bar, The Common European Law of Torts vol 2, 66.    [Back]

Note 40   [1995] 3IR 253.    [Back]

Note 41   The Queen v Moffat [2000] NZCA 252.    [Back]

Note 42   Barnard v Santam Bpk 1999 (1) SA 202, mother's claim for "mourning" dismissed but her claim based on her psychiatric disorder was allowed. See also N J Mullany, "Personal Perception of Trauma and Sudden Shock - South Africa Simplifies Matters"(2000) 116 LQR 29.    [Back]

Note 43   It would depend to some extent on the content of the legislation.    [Back]

Note 44   Report onLiability for Psychiatric Illness, para 5.2.    [Back]

Note 45   American Psychiatric Association, 4th edn (1994), commonly referred to as "DSM - IV".    [Back]

Note 46   World Health Organisation (1992), commonly referred to as "ICD-10".    [Back]

Note 47   See comment of the Lord Ordinary (Carloway) in Fraser v State Hospitals Board for Scotland 2001 SCLR 357 at 377-378.    [Back]

Note 48   Alcock v Chief Constable South Yorkshire Police [1992] 1 AC 310, Lord Ackner at 401.    [Back]

Note 49   Ibid, Lord Keith at 398, Lord Oliver at 411.    [Back]

Note 50   1958 SLT (Notes) 49.    [Back]

Note 51   [1994] 5 Med LR 170 (CA).    [Back]

Note 52   See also Taylorson v Shieldness Produce Ltd [1994] PIQR P329.    [Back]

Note 53   [2002] EWHC 321.    [Back]

Note 54   Cross v Highland and Islands Enterprise 2001 SLT 1060, Lord Ordinary (Macfadyen) at 1075-76 (express denial of requirement). In Fraser v State Hospitals Board for Scotland 2001 SCLR 357 a claim by an employee arising out of a series of disciplinary measures was dismissed not because of the absence of shock, but because his psychiatric injury was not foreseeable.    [Back]

Note 55   Report onLiability for Psychiatric Illness, paras 5.28-5.33.    [Back]

Note 56   See paras 4.22-4.27 below where we propose that it should be abolished.    [Back]

Note 57   Jaensch v Coffey (1984) 54 ALR 417; Chiaverini v Hockey (1993) Aust Torts Rep 81-223; Gifford v Strang Patrick Stevedoring Pty Ltd [2001] NSWCA 175.    [Back]

Note 58   (1990) 101 FLR 34.    [Back]

Note 59   Spence v Percy (1991) Aust Torts Rep 81-116.    [Back]

Note 60   Beecham v Hughes (1988) 52 DLR (4th) 625; Rhodes v Canadian National Railway (1991) 75 DLR (4th) 248.    [Back]

Note 61   Kelly v Hennessy [1995] 3 IR 253.    [Back]

Note 62   NJW 1971, 1883; see Appendix A, para 4.3.    [Back]

Note 63   Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317, mother watched child die slowly in hospital after botched operation and lack of proper aftercare.    [Back]

Note 64   1999 (1) SA 202. See NJ Mullany, "Personal Perception of Trauma and Sudden Shock – South Africa Simplifies Matters" (2000) 116 LQR 29 at 34.    [Back]

Note 65   Report onLiability for Psychiatric Illness, para 5.33.    [Back]

Note 66   Swindle, Cronkite and Moose, "Life Stressors, Social Resources, coping and the 4-Year course of Unipolar Depression" (1989) 98 J of Abnormal Psychology 468; McGonagle and Kessler, "Chronic Stress, Acute Stress and Depressive Symptoms" (1990) 18 Amer J of Community Psychology 681.    [Back]

Note 67   Report onLiability for Psychiatric Illness, para 5.29(2). See also C Tennant, "Liability for Psychiatric Injury: an Evidence-based Appraisal" (2002) 76 ALJ 73.    [Back]

Note 68    F S Shuaib, "Claims for 'nervous shock' by secondary victims in medical negligence cases" (1999) 15 Professional Negligence 18.    [Back]

Note 69   See, for example, Gibson v Orr 1999 SC 420.    [Back]

Note 70   Donoghue v Stevenson 1932 SC (HL) 31; Marc Rich & Co AG v Bishop Rock Marine Co Ltd, The Nicholas H [1996] AC 211, Lord Steyn at 235. Where physical harm to the pursuer is reasonably foreseeable, there will usually be a sufficient degree of proximity between the pursuer and defender so that it is fair, just and reasonable to impose a duty of care upon the defender: Caparo Industries plc v Dickman [1990] 2 AC 605.    [Back]

Note 71   Ibid.    [Back]

Note 72   Malcolm v Dickson 1951 SC 542.    [Back]

Note 73   1943 SC (HL) 3.     [Back]

Note 74   Hughes v Lord Advocate 1963 SC(HL)31; Galbraith's Curator ad Litem v Stewart (No 2) 1998 SLT 1305.    [Back]

Note 75   McKillen v Barclay Curle & Co Ltd 1967 SLT 41.    [Back]

Note 76   Ibid.    [Back]

Note 77   Malcolm v Dickson 1951 SC 542.    [Back]

Note 78   [1996] AC 155.    [Back]

Note 79   The classic example is McLoughlin v O'Brian [1983] 1 AC 410, where damages were awarded in respect of a psychiatric illness caused to a mother from witnessing the aftermath of an accident in which her family was injured. The House of Lords later narrowed the potential scope of McLoughlin in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. See paras 4.5 and 4.22-4.27 below.    [Back]

Note 80   See, for example, Pridie v Dick (1857) 19D 287.     [Back]

Note 81   Cooper v Caledonian Railway Co (1902) 4F 880; Wallace v Kennedy (1908) 16 SLT 485. Brown v Glasgow Corpn 1922 SC 527.    [Back]

Note 82   Ibid. See also Currie v Wardrop 1927 SC 538.    [Back]

Note 83   Wallace v Kennedy (1908) 16 SLT 485; Ross v Glasgow Corpn 1919 SC 174.    [Back]

Note 84   Ibid. See also Bourhill v Young 1942 SC (HL) 78, Lord Porter at 98.    [Back]

Note 85   Ibid.     [Back]

Note 86   1942 SC (HL) 78.    [Back]

Note 87   [1960] 2 QB 430. The decision has been followed in Australia: see Andrews v Williams [1967] VR 831; Tranaktsidis v Oulianoff (1980) 24 SASR 500.    [Back]

Note 88   [1960] 2 QB 430 at 442.    [Back]

Note 89   Haley v London Electricity Board [1965] AC 778 (duty of care to protect blind - as opposed to full sighted -pedestrians from falling into a trench).    [Back]

Note 90   Paris v Stepney BC [1951] AC 367 (breach of duty of care in respect of a man blinded in one eye, when there would be no breach of duty if his sight had not been impaired).    [Back]

Note 91   J K Myers, M M Weissman, G L Tischler et al, "Prevalence of Psychiatric Disorders in Three Communities" (1984) 41 Archives of General Psychiatry 959; R C Kessler, K A McGonagle, S Zhao et al, "Lifetime and 12 Month Prevalence Rates of DSM IIIR Psychiatric Disorders in the United States" (1994) 51 Archives of General Psychiatry 8. However, only about 1% of the population will suffer a new disorder or a new episode in any given year.    [Back]

Note 92   In McLoughlin v Jones [2002] 2 WLR 1279 Brooke LJ considered (at 1294) that "damages can only be recovered if it is foreseeable that psychiatric illness would have been suffered by the claimant, given all those features of his personal life and disposition of which the defendants were aware".    [Back]

Note 93   [1996] AC 155.    [Back]

Note 94   [1996] AC 155.    [Back]

Note 95   Ibid at 197. See also Lord Browne-Wilkinson at 180-181.    [Back]

Note 96   See, for example, T K Feng, "Nervous Shock to Primary Victims" (1995) SJLS 649; C A Hopkins, "A New Twist to Nervous Shock" (1995) 54 CLJ 491; N J Mullany, "Psychiatric damage in the House of Lords - Fourth time unlucky: Page v Smith" (1995) 3 Journal of Law and Medicine 112; A Sprince, "Page v Smith - being 'primary' colours House of Lords' judgment" (1995) 11 PN 124; P R Handford, "A New Chapter in the Foresight Saga: Psychiatric Damage in the House of Lords" (1996) 4 Tort L Rev 5; F McManus, "Nervous Shock - Back to Square One?" (1996) Jur Rev 159; F A Trindade, "Nervous Shock and Negligent Conduct" (1996) 112 LQR 22. F A Trindade and P Cane, The Law of Torts in Australia (3rd edn, 1999) 362. But see B McDonald and J Swanton, "Foreseeability in relation to negligent infliction of nervous shock" (1995) 69 ALJ 945.    [Back]

Note 97   [1996] AC 155 at 197.    [Back]

Note 98   Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, Lord Oliver at 407.    [Back]

Note 99   See paras 4.2-4.8 below.    [Back]

Note 100    [1999] 2 AC 455. See in particular the speech of Lord Steyn at 491.    [Back]

Note 101   It is presumed in the cases that as the pursuer is within the area of potential physical danger, he is afraid for his own safety as opposed to the safety of others.    [Back]

Note 102   See, for example, F A Trindade, "Nervous Shock and Negligent Conduct" (1996) 112 LQR 22.    [Back]

Note 103   [1999] QB 140.    [Back]

Note 104   [1997] 39 BMLR 146.    [Back]

Note 105   2000 SCLR 373.    [Back]

Note 106   As such, it is already an exception to the general rule that reparation is only available for psychiatric injury caused by shock. See para 1.4 above.    [Back]

Note 107   2000 SCLR 245.    [Back]

Note 108   Fraser v State Hospitals Board for Scotland 2001 SLT 1051, Lord Ordinary (Carloway) at 1054-1055; Cross v Highland and Island Enterprise 2001 SLT 1060, Lord Ordinary (Macfadyen) at 1075; Green v Argyll & Bute Council 2002 GWD - 295 Lord Ordinary (Bonomy).    [Back]

Note 109   [1995] 1 All ER 737; see also Young v Post Office [2002] EWCA Civ 661.    [Back]

Note 110   Or ought to have been reasonably foreseeable to the employer.    [Back]

Note 111   Similarly, there was held to be no breach of duty in Fraser v State Hospitals Board for Scotland 2001 SLT 1051, Cross v Highland and Island Enterprise 2001 SLT 1060 and Green v Argyll & Bute Council 2002 GWD 9-295 because in each case the employer could not reasonably foresee that the employee would suffer a psychiatric injury as a probable consequence of their conditions of employment.    [Back]

Note 112   [2002] 2 All ER 1. See also A Bowen, "Earmuffs and Non-slip Flooring for the Soul: Negligence and Occupational Stress" 2002 SLT(News) 81 and N J Mullany, "Containing Claims for Workplace Mental Illness" (2002) 118 LQR 373.    [Back]

Note 113   Ibid at 15.    [Back]

Note 114   InFrost, Lord Hoffmann distinguished Walker on the basis that Walker had suffered a mental breakdown as a consequence of the strain of doing work which his employer had required him to do: see [1999] 2 AC 455 at 506. But surely the distinction is that the plaintiffs in Frost suffered psychiatric illnesses as a result of witnessing harm suffered by third parties, albeit that they were acting in the course of their employment and their employer's negligence had caused the third parties' injuries.    [Back]

Note 115   [1951] 1 Lloyds Rep 271.    [Back]

Note 116   [2002] 2 WLR 1279.    [Back]

Note 117   However, Hale LJ considered (at 1296) that, "Loss of liberty is just as much an interference in bodily integrity as is loss of limb": she was therefore prepared to consider the case as analogous withPage.    [Back]

Note 118   [1996] 7 Med LR 167, see also Farrell v Avon Health Authority [2001] Lloyd's Rep Med 458 where a father was falsely informed of the death of his child and was given the wrong corpse to hold when he came to the hospital.    [Back]

Note 119   [1997] 8 Med LR 91; Court of Appeal, 13 Nov 1996. See also N J Mullany, "Careless Communication of Traumatic Information'' (1998) 114 LQR 380.    [Back]

Note 120   [2000] 2 All ER 237.    [Back]

Note 121   Ibid at 243.    [Back]

Note 122   [1996] AC 155.    [Back]

Note 123   Para 3.15 above.    [Back]

Note 124   Morgan v Tame [2000] NSWCA 121.    [Back]

Note 125   Report on Liability for Psychiatric Illness, para 5.16.    [Back]

Note 126   [1999] 2 AC 455.    [Back]

Note 127   Paras 3.22-3.28 above.    [Back]

Note 128   See in particular Frost v Chief Constable of South Yorkshire [1999] 2 AC 455.    [Back]

Note 129   [1999] 2 AC 455 at 504. See also Campbell v North Lanarkshire Council 2000 SCLR 373, Lord Ordinary (Reed) at 381-382.    [Back]

Note 130   See, for example, Bechard v Haliburton Estate (1991) 84 DLR (4th) 668, Griffiths JA at 674 (Canada); Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769.    [Back]

Note 131   This is the approach taken in respect of reasonable foreseeability of physical harm: Haley v London Electricity Board [1965] AC 778. This was also the view of the Law Commission in its Report on Liability for Psychiatric Illness, para 5.27.    [Back]

Note 132   [1988] QB 304.    [Back]

Note 133   Page v Smith [1996] 1 AC 155.    [Back]

Note 134   Ibid; Hunter v British Coal Corporation [1999] QB 140, Brooke LJ at 154.    [Back]

Note 135   Proposals 3(1)-(4).    [Back]

Note 136   [1992] 1 AC 310 at 407.    [Back]

Note 137   Involuntary participants were considered in Part 3, paras 3.25 and 3.28 above. Rescuers are discussed further at paras 4.28-4.34 below.    [Back]

Note 138   [1996] AC 155 at 184.    [Back]

Note 139   [1999] 2 AC 455.    [Back]

Note 140   Ibid at 464.    [Back]

Note 141   Ibid at 496-497.    [Back]

Note 142   Ibid at 509.    [Back]

Note 143   Ibid at 479-480.    [Back]

Note 144   Ibid at 504, see also para 3.33 above.    [Back]

Note 145   [1992] 1 AC 310 at 411.    [Back]

Note 146   Fatal Accidents Act 1976, s 1A added by the Administration of Justice Act 1982, s 3(1); Damages for Bereavement (Variation of Sum)(England and Wales) Order 2002, SI 2002/644. The Law Commission in its Report on Claims for Wrongful Death (Law Com No 263, 1999) recommended widening the class of eligible relatives, increasing the amount of the award and capping the wrongdoer's liability in the case of multiple claims. The amount was increased from £7,500 to £10,000 with effect from April 2002 by the above Order.    [Back]

Note 147   Paras 6.5-6.9.    [Back]

Note 148   1942 SC(HL) 78.    [Back]

Note 149   [1992] 1 AC 310, Lord Keith at 397, Lord Ackner at 403 and Lord Oliver at 416.    [Back]

Note 150   [1994] 2 All ER 1.    [Back]

Note 151   Mount Isa Mines v Pusey (1970) 125 CLR 383; Robertson v Forth Road Bridge Joint Board 1995 SC 364; Campbell v North Lanarkshire Council 2000 SCLR 373.    [Back]

Note 152   See para 4.1 above.    [Back]

Note 153   Proposals 3 (4) and (6).    [Back]

Note 154   Rhodes v Canadian National Railway (1991) 75 DLR (4th) 248, Wallace JA at 265. See Appendix A for further details of the other jurisdictions.    [Back]

Note 155   Alcock v Chief Constable South Yorkshire Police [1992] 1 AC 310, Lord Keith at 397; see also Currie v Wardrop 1927 SC 538.    [Back]

Note 156   McCarthy v Chief Constable South Yorkshire Police (unreported) 11 Dec 1996, half-brother.    [Back]

Note 157   1995 SC 364, Lord President (Hope) at 368 and 370.    [Back]

Note 158   Quayle v State of New South Wales (1995) Aust Torts Rep 81-367 (brother); Storm v Geeves [1965] Tas SR 252 (brother and sister, sister's claim dismissed as had not a recognisable psychiatric illness, but court regarded her as within category of potential claimants).    [Back]

Note 159   Kohn v State Government Insurance Commission (1976) 15 SASR 255.    [Back]

Note 160   S 4(1)(b). A parent or spouse need not have seen or heard the accident, s 4(1)(a).    [Back]

Note 161   Law Reform (Miscellaneous Provisions) Act 1955, s 24.    [Back]

Note 162   Law Reform (Miscellaneous Provisions) Act 1956, s 25.    [Back]

Note 163   S 4(5).    [Back]

Note 164   Beecham v Hughes (1988) 52 DLR (4th) 625, claim dismissed but not due to lack of relationship.    [Back]

Note 165   Cameron v Marcaccini (1978) 87 DLR (3d) 442.    [Back]

Note 166   See Appendix A, para 3.2.    [Back]

Note 167   Barnard v Santam Bpk 1999 (1) SA 202.    [Back]

Note 168   BGH, NJW 1969, 2286. See Appendix A, para 4.4.    [Back]

Note 169   See, for example, Dillon v Legg (1968) 29 ALR 3d 1316 (Calif); Landreth v Reed (1978) 570 SW 2d 486 (Texas); Garrett v City of New Berlin (1985) 362 NW 2d 137 (Wisc).    [Back]

Note 170   See, for example, Trapp v Schuyler Construction (1983) 197 Calif Rptr 411 (close first cousin) in which the court said that a "close relationship" did not include friends, housemates and those in meaningful relationships; Thing v La Chusa (1989) 48 Cal 3d 644, recovery should be limited to those who live in the same household or parents, grandparents, siblings and children of the immediate victim. Trombetta v Conking et al (1993) 605 NYS 2d 678 (aunt), further details in Appendix A, para 8.4.    [Back]

Note 171   Report onLiability for Psychiatric Illness, para 6.27.    [Back]

Note 172   Report on Title to Sue for Non-Patrimonial Loss (Scot Law Com No 187, August 2002).    [Back]

Note 173   Brother and sister includes any person who was brought up in the same household and as a child of the same family as the deceased.    [Back]

Note 174   [1992] 2 All ER 470 (note).    [Back]

Note 175   Court of Appeal, 28 April 1998 (unreported).    [Back]

Note 176   [1994] PIQR P329.    [Back]

Note 177   [1993] 4 Med LR 34.    [Back]

Note 178   Appendix A, para 4.4.    [Back]

Note 179   1999 (1) SA 202.    [Back]

Note 180   (1984) 54 ALR 417.    [Back]

Note 181   (1995) 36 NSWLR 1.    [Back]

Note 182   Quayle v State of New South Wales (1995) Aust Torts Reps 81-367; Reeve v Brisbane City Council [1995] 2 Qd R 661.    [Back]

Note 183   Mullally v Bus Éireann [1992] ILRM 722.    [Back]

Note 184   Devji v District of Burnaby (2000) 180 DLR (4th) 205.    [Back]

Note 185   See Appendix A, para 8.2.    [Back]

Note 186   A C McFarlane and G Girolamo "The Nature of Traumatic Stressors and the Epidemiology of Post Traumatic Reactions" in Van der Kolk, McFarlane and Weisaeth (eds), Traumatic Stress: the Effects of Overwhelming Experience on Mind, Body and Society (1996, New York).     [Back]

Note 187   Breslau, Davis, Anderskip et al, "Traumatic Events and Post Traumatic Stress Disorder in an Urban Population of Young Adults" (1991) 48 Archives of General Psychiatry 216.    [Back]

Note 188   Report on Liability for Psychiatric Illness, para 6.16.    [Back]

Note 189   [1967] 1 WLR 912.    [Back]

Note 190   [1999] 2 AC 455.    [Back]

Note 191   [1996] 1 AC 155.    [Back]

Note 192   [1999] 2 AC 455 at 499.    [Back]

Note 193   Ibid at 509.    [Back]

Note 194   Ibid at 464-465.     [Back]

Note 195   Ibid at 486.    [Back]

Note 196   Report on Liability for Psychiatric Illness, para 7.3.    [Back]

Note 197   G Kelly, "Haunted by Hillsborough" (2001) 95 Law Soc (of Ireland) Gazette, No 7, 18, quoted in Appendix A, para 5.6.    [Back]

Note 198   (1977) 73 DLR (3d) 177 at 209.    [Back]

Note 199   [1999] 2 AC 455, at 465.    [Back]

Note 200   InRapley v P & O European Ferries (Dover) Ltd (unreported) 21 Feb 1991 the plaintiff helped relatives and helped with the recovery of bodies a day or so after the Herald of Free Enterprise sank. His claim was dismissed as he had not helped those involved in the accident. See also Duncan v British Coal Corporation [1997] 1 All ER 540 where a pit deputy failed in his claim for damages. He was not present at the accident but had come to the scene and attempted to resuscitate a colleague who died. The situation was not particularly distressing.    [Back]

Note 201   Ogwo v Taylor [1988] AC 431.    [Back]

Note 202   Frost v Chief Constable South Yorkshire Police [1999] 2 AC 455, Lord Goff at 471.    [Back]

Note 203   Proposal 3, para 3.33.    [Back]

Note 204   [1996] AC 155 discussed in Part 3 above.    [Back]

Note 205   Paras 4.22-4.27.    [Back]

Note 206   See Appendix A, para 3.3.    [Back]

Note 207   1942 SC(HL) 78 at 91 .    [Back]

Note 208   B Rodger, "Nervous Shock and Breach of Duty of Care Owed to Secondary Victims" 1997 SLT (News) 22.    [Back]

Note 209   [1992] 1 AC 310.    [Back]

Note 210   Ibid at 418.    [Back]

Note 211   Law Reform Contributory Negligence Act 1945, s 1(4) as read with Damages (Scotland) Act 1976, s 7.    [Back]

Note 212   S 8.    [Back]

Note 213   S 9.    [Back]

Note 214   Paras 2.22ff.    [Back]

Note 215   Dooley v Cammell Laird [1951] 1 Lloyd's Rep 271 and Galt v British Railways Board (1983) 133 NLJ 870 where the plaintiffs recovered damages for psychiatric injury suffered after they mistakenly thought that their work colleagues had been injured by actions on their part. We have taken the view that the pursuer in this kind of case is a primary not a secondary victim; see paras 3.25-3.28.    [Back]

Note 216   [1992] 1 AC 310 at 412.    [Back]

Note 217   (1968) 29 ALR 3d 1316 at 1320-1321.    [Back]

Note 218   BGH 11 May 1971.    [Back]

Note 219   (1984) 54 ALR 417.    [Back]

Note 220   New South Wales Supreme Court, 13 Oct 1982 (unreported).    [Back]

Note 221   Law Reform (Miscellaneous Provisions) Act 1944 (New South Wales), s 4; Law Reform (Miscellaneous Provisions) Act 1955 (Australian Capital Territory), s 24; Law Reform (Miscellaneous Provisions) Act 1956 (Northern Territory), s 25.    [Back]

Note 222   (1965) 114 CLR 153.    [Back]

Note 223   Section 4(1) quoted in Appendix A, para 1.10.    [Back]

Note 224   N J Mullany and P R Handford, Tort Liability for Psychiatric Damage 255.    [Back]

Note 225   See paras 5.11-5.20.    [Back]

Note 226   Report on Liability for Psychiatric Illness, para 2.23.    [Back]

Note 227   Para 4.4 above.    [Back]

Note 228   See Part 2 above.    [Back]

Note 229   [2000] 4 All ER 769.    [Back]

Note 230   [2000] 4 All ER 769 at 783.    [Back]

Note 231   Ibid at 784.    [Back]

Note 232   Para 6.53. It may be impossible to determine what the deceased's intention actually was. For example, a person could slip and fall over a cliff or may have jumped. The close relatives would have to prove that the deceased fell accidentally in order to claim successfully.    [Back]

Note 233   Proposal 7, para 4.27.    [Back]

Note 234   [2000] 4 All ER 769 at 786.    [Back]

Note 235   Jaensch v Coffey [1984] 54 ALR 417 (High Court). Deane J saying at 460 "…on the present state of the law…a duty of care will not exist unless the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness is alleged to have caused the injury"; Harrison v State Government Insurance Office (1985) Aust Torts Rep 80-723 (Queensland); Klug v Motor Accidents Insurance Board (1991) Aust Torts Rep 81-134 (Tasmania).     [Back]

Note 236   (1997) 70 SASR 240.    [Back]

Note 237   [2000] NSWCA 346; see also P R Handford, "Psychiatric Damage where the Defendant is the Immediate Victim" (2001) 117 LQR 397.    [Back]

Note 238   NJW 1971, 1883 at 1886. Translated in BS Markesinis, A Comparative Introduction to the German Law of Torts 112.    [Back]

Note 239   Appendix A, para 8.5.    [Back]

Note 240   Young v Rankin 1934 SC 499. Also the Law Reform (Husband and Wife) Act 1962, s 2(1) allows a right of action between spouses.    [Back]

Note 241   van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at 192.    [Back]

Note 242   (1970) 125 CLR 383 at 394.    [Back]

Note 243   N J Mullany and P R Handford, Tort Liability for Psychiatric Damage 106.    [Back]

Note 244   (1987) 9 NSWLR 172.    [Back]

Note 245   Storm v Geeves [1965] Tas SR 252 (brother and sister, sister's claim dismissed as had not a recognisable psychiatric illness, but court regarded her as within category of potential claimants); Quayle v State of New South Wales (1995) Aust Torts Rep 81-367 (brother).     [Back]

Note 246   Kohn v State Government Insurance Commission (1976) 15 SASR 255.    [Back]

Note 247   (1984) 54 ALR 417.    [Back]

Note 248   Pham v Lawson (1997) 68 SASR 124 was similar in that the successful claimant was told of the accident, but she also passed by the scene on her way to the hospital where she saw her dead and injured family.    [Back]

Note 249   (1995) 36 NSWLR 1.    [Back]

Note 250   Ibid at 11.    [Back]

Note 251   [2000] WASC 104.    [Back]

Note 252   [1995] 2 Qd R 661.    [Back]

Note 253   (1995) Aust Torts Rep 81-367.    [Back]

Note 254   Jaensch v Coffey (1984) 54 ALR 417; Campbelltown City Council v Mackay (1989) 15 NSWLR 501; Chiaverini v Hockey (1993) Aust Torts Rep 81-223; Gifford v Strang Patrick Stevedoring Pty Ltd [2001] NSWCA 175.    [Back]

Note 255   (1990) 101 FLR 34. See also Spence v Percy (1991) Aust Torts Rep 81-116, prolonged coma of relative in hospital which caused psychiatric injury was held not to be part of the aftermath of the accident.    [Back]

Note 256   [2000] NSWCA 121.    [Back]

Note 257   F Trindade and P Cane, The Law of Torts in Australia 362.    [Back]

Note 258   [1960] 2 QB 430.    [Back]

Note 259   Andrews v Williams [1967] VR 831; Tsanaktsidis v Oulianoff (1980) 24 SASR 500.    [Back]

Note 260   F Trindade and P Cane, The Law of Torts in Australia 365.    [Back]

Note 261   [2000] NSWCA 346. Also see Shipard v Motor Accidents Commission (1997) 70 SASR 240 where the South Australian Full Court refused to strike out a claim where the immediate victim was at fault, holding that the secondary victim was entitled to have the claim determined in the light of all the relevant facts.    [Back]

Note 262   (1984) 54 ALR 417. Deane J said at 460 "…on the present state of the law…a duty of care will not exist unless the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness is alleged to have caused the injury"; Harrison v State Government Insurance Office (1985) Aust Torts Rep 80-723 (Queensland); Klug v Motor Accidents Insurance Board (1991) Aust Torts Rep 81-134 (Tasmania).     [Back]

Note 263   [2000] NSWCA 119.    [Back]

Note 264   (1970) 125 CLR 383.    [Back]

Note 265   Lord Goff in Frost v Chief Constable South Yorkshire Police [1999] 2 AC 455 at 485 stated: "In the course of the judgments of some members of the High Court, the plaintiff was treated as a rescuer; but I understand the prevailing view of the High Court in that case [Mount Isa Minesv Pusey]…to have been that the defendants' liability arose from breach of their duty as employers of the plaintiff…".    [Back]

Note 266   Law Reform (Miscellaneous Provisions) Act 1955, s 24.    [Back]

Note 267   Law Reform (Miscellaneous Provisions) Act 1956, s 25.    [Back]

Note 268   [2001] NSWCA 175.    [Back]

Note 269   Ibid at para 35 of his opinion.    [Back]

Note 270   Ibid at para 45 of his opinion.    [Back]

Note 271   (1995) Aust Torts Rep 81-367.    [Back]

Note 272   See Part 5 above.    [Back]

Note 273   Scala v Mammolitti (1965) 114 CLR 153.    [Back]

Note 274   N J Mullany and P R Handford, Tort Liability for Psychiatric Damage 255.    [Back]

Note 275   New South Wales Supreme Court, 13 Oct 1982, (unreported).    [Back]

Note 276   (1984) 54 ALR 417.    [Back]

Note 277   Duwyn v Kaprielian (1978) 22 OR (2d) 736, Morden JA at 754-55; McDermott v Ramadanovic Estate (1988) 27 BCLR (2d) 45, Southin J at 52; Rhodes v Canadian National Railway (1991) 75 DLR (4th) 248.    [Back]

Note 278   (1991) 75 DLR (4th) 248 at 264.    [Back]

Note 279   (1996) 29 CCLT (2d) 125.    [Back]

Note 280   [1999] 48 OR (3d) 228.     [Back]

Note 281   Beecham v Hughes (1988) 52 DLR (4th) 625; Rhodes v Canadian National Railway (1991) 75 DLR (4th) 248.    [Back]

Note 282   Abramzik v Bremner (1968) 65 DLR (2d) 651.    [Back]

Note 283   See, for example, Marshall v Lionel Enterprises Inc (1972) 25 DLR (3d) 141, Haines J at 149.    [Back]

Note 284   Bechard v Haliburton Estate (1991) 84 DLR (4th) 668 at 674.     [Back]

Note 285   (1998) 40 OR (3d) 355 at 364-366.    [Back]

Note 286   Fenn v City of Peterborough (1977) 73 DLR (3d) 177.    [Back]

Note 287   Marshall v Lionel Enterprises Inc (1972) 25 DLR (3d) 141.    [Back]

Note 288   Beecham v Hughes (1988) 52 DLR (4th) 625.    [Back]

Note 289   Cameron v Marcaccini (1978) 87 DLR (3d) 442.    [Back]

Note 290   Bechard v Haliburton Estate (1991) 84 DLR (4th) 668, Griffiths JA at 681.    [Back]

Note 291   Devji v District of Burnaby (2000) 180 DLR (4th) 205.    [Back]

Note 292   (1977) 73 DLR (3d) 177.    [Back]

Note 293   (1991) 84 DLR (4th) 668.    [Back]

Note 294   (1978) 94 DLR (3d) 424.    [Back]

Note 295   Brown v Hubar (1974) 45 DLR (3d) 664; McMullin v FW Woolworth Co Ltd (1974) 9 NBR (2d) 214.    [Back]

Note 296   N J Mullany and P R Handford, Tort Liability for Psychiatric Damage 231 fn 35.    [Back]

Note 297   15 June 1833, S. 1833.1.458.    [Back]

Note 298   See Civ 13 February 1923, D 1923.1.52.    [Back]

Note 299   Mirza, Tgi, Caen, 30 October 1962, D 63.92.    [Back]

Note 300   Lunus, Civ 1, 16 January 1962, B. I, No 33.    [Back]

Note 301   See P Malaurie & L Aynès, Droit civil: les obligations para 247.    [Back]

Note 302   See for example Civ 2, 23 May 1977, B. II, No 139.    [Back]

Note 303   See P Malaurie & L Aynès, Droit civil: les obligations para 247.    [Back]

Note 304   N J Mullany and P R Handford, Tort Liability for Psychiatric Damage 57 - 58.    [Back]

Note 305   C von Bar, The Common European Law of Torts vol 2, 65.    [Back]

Note 306   NJW 1971, 1883, 1884-1885, translated in B S Markesinis, A Comparative Introduction to the German Law of Torts 110.    [Back]

Note 307   RGZ 133, 270, translated in B S Markesinis, A Comparative Introduction to the German Law of Torts 122.    [Back]

Note 308   B S Markesinis, A Comparative Introduction to the German Law of Torts 124.    [Back]

Note 309   NJW 1971, 1883.    [Back]

Note 310   BGH, NJW 1985, 1391.    [Back]

Note 311   LG Hildesheim VersR 1970, 720.    [Back]

Note 312   C von Bar, The Common European Law of Torts vol 2, 66.    [Back]

Note 313   BGH, NJW 1969, 2286.    [Back]

Note 314   BGH 5.2.1985, BGHZ 93, 351. The child was born impaired due to a nervous shock suffered by the mother during pregnancy.    [Back]

Note 315   BGH, NJW 1986, 777.    [Back]

Note 316   RGZ 157, 11; BGH, NJW 1971, 1883; BGHZ 93, 351; NJW 1985, 1390.    [Back]

Note 317   B S Markesinis, A Comparative Introduction to the German Law of Torts 124. Of course, since the time of writing, the Law Commission has recommended that the second and third Alcock requirements be abolished.    [Back]

Note 318   BGH 29.2.1956, BGHZ 20, 137; BGH 19.12.1969, VersR 1970, 281; BGH 22.9.1981, NJW 1982, 168; OLG Frankfurt 1.9.1981, JZ 1982 201. M Janssens, "Nervous Shock Liability: A comparative study of the law governing the principles of nervous shock in England, the Netherlands, Germany and France" (1998) 6 ERPL 77 at 87.     [Back]

Note 319   BGH 10.6.1958, NJW 1958, 1579 at 1580.     [Back]

Note 320   M Janssens, "Nervous Shock Liability: A comparative study of the law governing the principles of nervous shock in England, the Netherlands, Germany and France'' (1998) 6 ERPL 77 at 87.     [Back]

Note 321   See B S Markesinis, A Comparative Introduction to the German Law of Torts 104-105.     [Back]

Note 322   NJW 1971, 1883, translated in B S Markesinis, A Comparative Introduction to the German Law of Torts 112.    [Back]

Note 323   Ibid.    [Back]

Note 324   NJW 1971, 1883 at 1886. However an exception was deemed acceptable in "peculiar cases" such as where a person commits suicide in a "deliberately shocking manner".    [Back]

Note 325   G Kelly, ''Haunted by Hillsborough'' (2001) Law Soc (of Ireland) Gazette, No 7 at 21.    [Back]

Note 326   N J Mullany and P R Handford Tort Liability for Psychiatric Damage 9.    [Back]

Note 327   Byrne v Great Southern and Western Railway Co of Ireland Feb 1884 (unreported); Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428.    [Back]

Note 328   [1995] 3 IR 253.    [Back]

Note 329   [2000] ILRM 343.    [Back]

Note 330   N J Mullany and P R Handford, Tort Liability for Psychiatric Damage 148.    [Back]

Note 331   [1992] ILRM 722.    [Back]

Note 332   Ibid at 730.    [Back]

Note 333   High Court, 28 Jan 2000 (unreported).    [Back]

Note 334   [2000] ILRM 343.    [Back]

Note 335   (2000) Law Soc (of Ireland) Gazette, No 4 at 38.    [Back]

Note 336   [1999] 2 AC 455.    [Back]

Note 337   G Kelly, ''Haunted by Hillsborough'' (2001) Law Soc (of Ireland) Gazette, No 7, 18 at 21.    [Back]

Note 338   S 27. The 1972 Act was amended and consolidated by the Accidents Compensation Act 1982, s 2 of which defined accident to include "the physical and mental consequences of any such injury or of the accident".    [Back]

Note 339   [1992] 2 NZLR 426.    [Back]

Note 340   [1992] NZAR 65.    [Back]

Note 341   Ss 4 and 8.    [Back]

Note 342   [2000] 1 NZLR 549.    [Back]

Note 343   N J Mullany ''Accidents and Actions for Damage to the Mind – Kiwi Style'' (1999) 115 LQR 596.    [Back]

Note 344   The Queen v Moffat [2000] NZCA 252; van Soest v Residual Health Management Unit [2000] 1 NZLR 179, but see Thomas J's dissent at 201 where he says that claims should be competent for mental suffering approaching the order of a psychiatric illness.    [Back]

Note 345   [2000] 1 NZLR 179.    [Back]

Note 346   Ibid at 199.    [Back]

Note 347   Ibid.    [Back]

Note 348   Ibid at 201.    [Back]

Note 349   P Q R Boberg, The Law of Delict Vol 1: Aquilian Liability 174.     [Back]

Note 350   See Waring & Gillow Ltd v Sherbone 1904 TS 340; Sueltz v Bolttler 1914 EDL 176 and Mulder v South British Insurance Co Ltd 1957 (2) SA 444 (W).    [Back]

Note 351   1973 (1) SA 769.    [Back]

Note 352   Ibid at 769.    [Back]

Note 353   Barnard v Santam Bpk 1999 (1) SA 202.     [Back]

Note 354   1982 (4) SA 333.    [Back]

Note 355   However it is suggested that Berman AJ felt sympathy for the plaintiff in this case and awarded damages in the only way open to him. The deceased (on behalf of whom the plaintiff was suing), his wife, niece, child and child's friend were travelling in his car when it stalled. While pushing the car, the deceased was attacked by a man attempting to steal his watch. A car (the driver of which was not negligent) then knocked down his wife and in helping her, the deceased saw another car hit his stationary vehicle with the children inside. In running towards his car he had a stroke and died three days later. The driver of the second car was negligent but could not have foreseen there were children inside. Instead Berman AJ held at 342 that the reasonable driver "ought to, and would, have foreseen that, among the bystanders there present, who must have been clearly visible standing about on the well-lit road, was the owner of that car, and that such owner might well suffer considerable shock at the sight of his car being hit…with every expectation of seeing it topple over onto the railway track below." This case can be distinguished from Attia v British Gas plc [1988] QB 304 as no contract existed between the driver of the car and the deceased.    [Back]

Note 356   1999 (1) SA 202.    [Back]

Note 357   Although her claim for "mourning" was dismissed, her psychiatric disorder was allowed.    [Back]

Note 358   N J Mullany, "Personal Perception of Trauma and Sudden Shock – South Africa Simplifies Matters'' (2000) 116 LQR 29.    [Back]

Note 359   1996 (4) SA 1029 (W).    [Back]

Note 360   (1968) 29 ALR 3d 1316.    [Back]

Note 361   (1989) 48 Cal 3d 644.    [Back]

Note 362   The zone of danger test was abandoned in James v Lieb (1985) 375 NW 2d 109.    [Back]

Note 363   Gates v Richardson (1986) 719 P 2d 193 (Wyo).    [Back]

Note 364   Vosburg v Cenex-Land O'Lakes Agronomy Co (1994) 513 NW 2d 870, 873 (Neb).    [Back]

Note 365   Whetham v Bismarck Hospital (1972) 197 NW 2d 678 (ND).     [Back]

Note 366   Stadler v Cross (1980) 295 NW 2d 552.     [Back]

Note 367    Asaro v Cardinal Glennon Memorial Hospital (1990) 799 SW 2d 595.    [Back]

Note 368   James v Harris (1986) 729 P 2d 986.     [Back]

Note 369   (1968) 29 ALR 3d 1316 (Calif).    [Back]

Note 370   B S Markesinis and S F Deakin, Tort Law 217-8.    [Back]

Note 371   NJ Mullany, "Fear for the Future: Liability for Infliction of Psychiatric Disorder", chapter 5 of Mullany (ed), Torts in the Nineties (LBC Information Services, 1997), quoted by Blanchard J in van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at 196.    [Back]

Note 372   B S Markesinis and S F Deakin, Tort Law 216.    [Back]

Note 373   (1990) 799 SW 2d 595 (Missouri).    [Back]

Note 374   (1989) 48 Cal 3d 644.     [Back]

Note 375   See, for example, Dillon v Legg (1968) 29 ALR 3d 1316 (Calif); Landreth v Reed (1978) 570 SW 2d 486 (Texas); Garrett v City of New Berlin (1985) 362 NW 2d 137 (Wisc).    [Back]

Note 376   (1989) 48 Cal 3d 644.    [Back]

Note 377   (1993) 605 NYS 2d 678     [Back]

Note 378   Ibid.    [Back]

Note 379   P R Handford, ''Psychiatric Damage Where The Defendant Is The Immediate Victim" (2001) 117 LQR 397 at 402.    [Back]

Note 380   (1990) 557 So 2d 1091 (La).    [Back]

Note 381   (1991) 580 So 2d 990 (La).    [Back]

Note 382   (1996) 915 SW 2d 437 (Tenn).    [Back]

Note 383   (1968) 29 ALR 3d 1316 at 1320 –1321.    [Back]

Note 384   (1983) 195 Cal Rptr 902.     [Back]

Note 385   (1999) 990 P 2d 384 (Utah).     [Back]

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