Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom Journals
You are here: BAILII >> Databases >> United Kingdom Journals >> Law Commission Consultation Paper <BR> No 137 - Liability for Psychiatric Illness
URL: http://www.bailii.org/uk/other/journals/WebJCLI/1995/issue2/wheat2.html
Cite as: Law Commission Consultation Paper <BR> No 137 - Liability for Psychiatric Illness
[New search] [Contents list] [Printable RTF version] [Help]
Law Commission Consultation Paper
No 137 - Liability for Psychiatric
Illness
by
Kay Wheat
Senior Lecturer, Nottingham Law School, Nottingham Trent University< law3wheatvk@ac.uk.nottingham-trent>
Copyright © 1995 Kay Wheat. First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
Download this file.
Return to [1995] 2 Web JCLI Contents.
Summary
This paper examines the Law Commission's Consultation Paper No 137, Liability for Psychiatric Illness, which deals primarily with liability for negligently inflicted psychiatric illness when the plaintiff is a secondary victim, i.e. someone who has suffered the illness as a result of injury to another, the primary victim. The law imposes a number of restrictions on the circumstances in which a secondary victim can successfully recover damages for their illness. The Law Commission look at these restrictions and make a number of provisional recommendations. The paper outlines these recommendations in their legal context.
Contents
- Introduction
- Floodgates and other arguments
- Recognised Psychiatric Illness
- Proximity of Relationship
- Proximity to the Event
- Normal Fortitude
- Some Further Matters
- A Statutory Framework
- Conclusion
Introduction
This paper, which was published on 29th March 1995, makes a number of important provisional recommendations in this topical and controversial area of the law. The final views of the Commission will not be known until after the consultation period. Interested parties have until 31st July 1995 to submit comments to the Commission.
It is the third consultation paper to be published by the Law Commission in the field of personal injury litigation (the other two papers being: Structured Settlements and Interim and Provisional Damages (1992) No 125, and Aggravated, Exemplary and Restitutionary Damages (1993) No 132). The Commission state that through other investigations they are making in the field, it had become increasingly apparent that this area of the law caused some concern, particularly following the House of Lords decision in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Despite the title of the paper, the subject matter is almost exclusively concerned with the law of 'nervous shock' i.e. negligently inflicted psychiatric illness.
The paper states that the expression 'psychiatric illness' is preferred because of judicial disapproval of the term 'nervous shock' and because one of the points in issue is whether it is valid to impose the requirement that the illness should be shock- induced in order to attract compensation. It can be argued that 'nervous shock' is still a useful expression to distinguish psychiatric illness caused by negligence, with the special considerations which the tort of negligence imposes, and such illness caused by non- negligent acts such as assault, but increasingly the expressions 'psychiatric illness' or 'psychiatric injury' are used. However, the fact that this Consultation Paper is almost exclusively concerned with negligence should not be overlooked.
The paper is concerned with nervous shock and any other area of tort where there are, or are likely to be, special restrictions which would not be imposed in a physical injury claim. For example, since the case of Cambridge Water Co v Eastern Counties Leather plc [1994] 2 WLR 53, even in a Rylands v Fletcher claim (a so-called strict liability tort), the damage for which recovery of compensation is sought, must be foreseeable.
The ambit of the consultation paper is further restricted by not being concerned with psychiatric illness consequent upon physical injury, and is confined to the special problems arising when the only illness is that of a psychiatric nature.
In order to consider the provisional recommendations of the consultation paper, it is necessary to summarise the present requirements imposed in a case of psychiatric illness caused by negligence. Firstly, the injury must be a recognised psychiatric illness, so 'ordinary' shock and such 'ordinary' emotions as fear and grief will not suffice. The second requirement is that the plaintiff must have suffered the injury either because of reasonable fear of injury to herself, or reasonable fear of, or a real injury to another, and that, in the latter case (what the Commission refer to as a secondary victim case), the plaintiff must stand in a special relationship to the person in danger/injured, and the plaintiff must be present at the causative 'shocking' event or at its immediate aftermath. The event must be 'shocking' to a person of normal fortitude, otherwise the resulting illness will not, in law, have been foreseeable, and therefore, in accordance with the general rules of negligence, will not be compensatable. The 'normal fortitude' rule has recently exercised the judicial minds in both the Court of Appeal and the House of Lords and is discussed further below.
Forward to Bibliography.
Return to contents.
Floodgates and Other Arguments
The implications of the special conditions to be satisfied in nervous shock cases are further considered below, but firstly, it is necessary to look at the reasons behind the imposition of special conditions of any kind. The Consultation Paper examines the reasons for imposing restrictions: fear of the opening of the floodgates; fear of fraudulent and exaggerated claims; conflicting medical opinions; the assumption that psychiatric illness is less serious than physical injury, and the fact that the plaintiff is commonly a secondary victim.
The most common reason advanced is the floodgates argument, which is based on the fear of an unacceptably large number of claims arising from one incident of negligence. This argument has been criticised by a number of judges (see for example, McLoughlin v O'Brian [1983] 1 AC 410, Lord Edmund-Davies (at 425) and Lord Bridge (at 442), and the Commission consider that it may be arguable that the requirement that there be a recognised psychiatric injury is enough. The other arguments in favour of restricting liability appear not to have impressed the Commission. The fact that the medical literature suggests that fraudulent and exaggerated claims are uncommon, plus the availability of sophisticated psychological tests are cited by the Commission; the Commission does not see any greater significance of conflicting medical opinions than in a case of physical injury; the suggestion that psychiatric illness is less serious than bodily injury is also given little consideration (the Commission citing the cogent argument of Mullany and Handford in (1993) that an injured mind is far more difficult to nurse back to health than an injured body), and, finally, the fact that the plaintiff is commonly a secondary victim is, the Commission state, really the floodgates argument in disguise. It is however, the floodgates argument which has persuaded the Commission to the provisional view that the proximity tests should remain for psychiatric injury, and that foreseeability alone is not enough. They state that this is in keeping with demise of Anns v Merton London Borough Council [1978] AC 728, and the dicta in (inter alia) Caparo Industries plc v Dickman [1990] 2 AC 605.
Forward to Bibliography.
Return to contents.
Recognised Psychiatric Illness
As far as the requirement that there be a recognised psychiatric illness is concerned, the case of Hicks v Chief Constable of South Yorkshire Police [1992] 2 All ER 65 the House of Lords considered whether damages were recoverable for pre-death terror in the cases of two people crushed to death at the Hillsborough football stadium disaster. The court held that fear, of whatever degree, is a normal human emotion and therefore not compensatable.
The reason for this is that in negligence, the plaintiff has to show that she has suffered damage of some sort. If it is emotion, however, extreme, then there is no damage. It is submitted, however, that damages are recoverable in non-negligent torts, for distress falling short of a recognised psychiatric illness, for example assault, intimidation, and harassment (recognised as a tort by the majority of the Court of Appeal in the case of Khorasandjian v Bush [1993] QB 727).
Psychiatric illness is classified in a number of different ways depending upon the purpose of the classification, but for diagnostic purposes they will be classified either in accordance with the criteria laid down in the American Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (known as DSM IV), or with criteria in the International Classification of Diseases and Related Health Problems (ICD 10). It is beyond the scope of this article to consider the medical background, it is important to remember that a number of different psychiatric illnesses can be caused by trauma; that the plaintiff can be suffering from more than one illness, and that, whilst 'simple' grief is not compensatable, 'pathological grief' is a recognised psychiatric illness. All these matters were approved by the arbitrators in the Herald of Free Enterprise arbitrations, which followed the capsize of the passenger ferry near Zeebrugge in 1987. Unusually, a number of the injured chose to have their personal injury claims dealt with by arbitration. These included both physical and psychiatric injuries, and the arbitrators made a number of important findings on the psychiatric consequences of trauma. (See Report 1989, Vol 5 No 5 for a full report of the findings of the arbitrators, which is also a useful reference for quantum of damages).
Psychiatric illness caused by the reasonable fear of injury to oneself as being compensatable was established by the Court of Appeal case of Dulieu v White & Sons [1901] 2 KB 669 (the horse van crashing into a public bar where the plaintiff was working). However, claims are likely to be resisted by defendants when it can be argued that because of the security of the plaintiff's physical location in relation to the accident he could not have reasonably feared for his own safety. For an example of this, see McFarlane v E E Caledonia Ltd [1994] 2 All ER 1, where the plaintiff's position was on a support vessel some 550 yards away from the exploding Piper Alpha oil rig, and it was said by the Court of Appeal that the plaintiff could not have reasonably feared for his own safety.
It was established by the Court of Appeal in Hambrook v Stokes Brothers [1925] 1 KB 141 that fear for another is also compensatable. As a matter of policy, it was recognised that it would not be right for, say, a mother who feared only for her own safety to recover damages, when a mother who feared for her child would not succeed. This policy issue is recognised and approved by the Commission in their paper.
However, it is not enough that a psychiatric illness has been caused by fearing for another's safety: certain conditions also have to be satisfied. Firstly, the plaintiff must be in a special class of persons in relationship to the imperilled person: 'proximity of relationship'. The consultation paper describes the categories as: those with a close tie of love and affection to the imperilled; those who are rescuers; involuntary participants in the shocking incident (given a particular definition by the Commission in their paper), and 'mere' bystanders. Secondly, the person must be imperilled by a shocking event, and the plaintiff must witness it, or its immediate aftermath: 'proximity to the event'.
Forward to Bibliography.
Return to contents.
Proximity of Relationship
Close ties of love and affection
In Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, the House of Lords considered, at some length, the categorisation of those with a close tie of love and affection, and declined to be prescriptive about the types of relationship which would confer eligibility. Although in the English courts the relationship of husband/wife and parent/child are the only ones where damages have been recovered, it was made clear in Alcock that other close relationships may suffice if the evidence justifies this. The Law Commission considers whether there should be a list of relationships which raise a rebuttable presumption of a close tie of love and affection, whilst still allowing a plaintiff not on the list to prove a close tie. Whilst taking no firm view on the desirability of this, the Commission's provisional recommendation in this area is that if there is to be a list of relationships of close love and affection, if should include, at least, brothers and sisters, de facto spouses and those in a stable homosexual relationship.Forward to Bibliography.
Return to contents.
Rescuers
As far as rescuers are concerned, it has long been acknowledged that, on the grounds of both foreseeability and public policy, a duty of care is owed to rescuers, and that a rescuer who suffers psychiatric illness is eligible to claim damages (see Chadwick v BRB [1967] 1 WLR 912, approved by the House of Lords in McLoughlin v O'Brian [1983] AC 410). The two main areas of contention in rescuer cases are, firstly, the occasions when it is disputed whether a person is a rescuer rather than a mere bystander, and secondly, whether professional rescuers such as firemen should be eligible to claim damages. The Law Commission consider it unhelpful to try and provide a definition of a rescuer, but to leave it to the court's overall discretion to decide, in line with the overall policy of not discouraging rescue. The professional rescuer who suffers psychiatric illness is a topical subject at the moment, and there are many who believe that professional rescuers should be precluded from recovering damages for psychiatric illness (see, for example, the editorial 'Stress on the beat', The Times, 4th February 1995, following the settlement of damages to some of the psychiatrically injured police officers involved in the Hillsborough rescue). However, it has been confirmed by the House of Lords that, subject to the usual requirements of negligence being satisfied and the rescuer not taking any risks, damages can be recovered for physical injury suffered by a professional rescuer (Ogwo v Taylor [1988] AC 431) and it is difficult to see why psychiatric injury should be treated any differently. The reluctance to equate the two is, perhaps, more to do with a misunderstanding of the nature of psychiatric illness than an objective appraisal of the law. It should be recognised that a fireman suffering from post-traumatic stress disorder is no more able to 'pull himself together' than a fireman suffering from broken bones. The Law Commission also point out that the effect of the exclusion of professional rescuers may lead them to do no more than their legal minimum duty. However, the point is raised as to whether the professional rescuer is expected to have more than the 'normal fortitude' of the ordinary man in the street. This point is considered further below.Forward to Bibliography.
Return to contents.
Involuntary participants
The Law Commission also consider a category of plaintiffs which they describe as 'involuntary participants', and which they define as those plaintiffs who, through the negligence of the defendant, are put into a position of thinking that they are, or are about to be, the involuntary cause of another's death or injury. This would include people such as the plaintiff in Dooley v Cammell Laird Co Ltd [1951] 1 Lloyd's Rep 271, who thought he had injured workmates when the cable on the crane he was operating snapped and a load of cargo fell into the hold of a ship. However, the Commission refer to Lord Oliver's formulation in Alcock, when he said (at 408): "The fact that the defendant's negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event establishes of itself a sufficiently proximate relationship between then, and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable", and the Commission concludes that this would entitle a plaintiff in this position to recover damages, even though the shock was not experienced through her unaided senses and even though she was not close to the accident in space and time. The example given is that of the signalman who, due to a fault in the equipment, believes he has caused a train crash, out of his sight or hearing. The provisional view of the Commission is that such a plaintiff ought to be able to recover damages.
Forward to Bibliography.
Return to contents.
Mere bystanders
It was established in the well-known case of Bourhill v Young [1943] AC 92 that, given the foreseeability requirement in negligence, "the driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure....the noise of a collision and the sight of injury to others, and is not to be considered towards one who does not possess the customary phlegm" (per Lord Porter at 117). It should be noted, however, that the House of Lords in Alcock did not rule out the possibility of a successful claim by a mere bystander, as it was acknowledged, in principle, that an event could be so horrific that the person of customary phlegm would be shocked by it (per Lord Ackner at 403). The Commission reviews the three possibilities for bystander recovery: simple exclusion from compensation; compensation payable if an event is exceptionally horrifying; compensation payable to a bystander as a matter of course as long as the conditions of event proximity were satisfied. The difficulty with the second option, acknowledged by the Commission is the subjectivity in deciding the nature of an exceptionally horrifying event. The third option raises floodgates arguments, and surely the first option is inconsistent with an enlightened and tolerant approach to tort, as per Lord MacMillan's speech in Donoghue v Stevenson [1932] AC 562 - "the categories of negligence are never closed", and the approach of Brennan J in Sutherland Shire Council v Heyman (1985) 60 ALR 1 favouring an incremental development of the law of tort. It is pertinent to question whether the floodgates argument can be sustained, particularly if the requirement remains that the event itself must be shocking to a person of 'normal fortitude' (see below).Forward to Bibliography.
Return to contents.
Proximity to the Event
The second condition which attaches to a claim for illness caused as a result of fear for another, is that the plaintiff must witness the 'shocking' event itself, or its immediate aftermath with her unaided senses. It is this second limb of the proximity test that can result in particularly arbitrary decisions. For example in Hevican v Ruane [1991] 4 All ER 907, the judge at first instance found in favour of a plaintiff who suffered a serious reactive depression following the death of his 14 year old son. He had not witnessed the road accident which caused the death, but was told about it two hours later, and identified his son's body in the mortuary an hour after being told. Mantell J found that the injury was foreseeable, and that the causal chain was established. He refused to allow the event proximity test to bar the plaintiff's claim on the basis that it would be applying an arbitrary rule peculiar to cases of nervous shock (at 69f). This was overturned on appeal following the House of Lords judgment in Alcock, where identification of bodies in the mortuary was held not to satisfy the event proximity test. The arbitrary nature of the test is also pointed up by the facts of McLoughlin v O'Brian [1983] 1 AC 410, where the plaintiff recovered damages after witnessing the dirty, dishevelled and bloody appearances of her husband and children at the hospital some hours after the accident. It was the state of the accident victims which brought the circumstances into the ambit of the 'immediate aftermath'. If the hospital had been able to clean them up, sedate them and put them to bed, Mrs McLoughlin would not have been able to recover.
An illustration of this point is provided by three recent cases. Firstly, in Taylor v Somerset Health Authority [1993] PIQR P262, the plaintiff claimed damages for psychiatric injury suffered following the death of her husband from a heart attack after months of negligent medical treatment. She was waiting to see him at the hospital when she was told that he had died, and identified his body a few minutes later. Auld J held that this identification was not capable of being part of the immediate aftermath of 'the event' as it went to the fact of the death as distinct from the circumstances. Secondly, in Sion v Hampstead Health Authority [1994] 5 Med LR, the plaintiff was the father of a young man injured in a road accident. It was alleged that the hospital treating him were negligent. The father watched his son deteriorate and die over a period of 14 days, but it was held that there was no shocking event, just the process of death. The Court of Appeal stated that not only was the death not surprising, it was expected. In contrast, in Tredget and Tredget v Bexley Health Authority [1994] 5 Med LR, parents recovered damages for psychiatric injury caused by the 'chaos' and 'pandemonium' surrounding the negligent delivery of their son, and the arrival of the child in a distressed condition requiring immediate resuscitation. This was said to be frightening and horrifying for those immediately and directly involved. Clearly, this is one of the most unsatisfactory aspects of the present law on nervous shock. It is encouraging therefore to note the Commission's provisional recommendation that, the event proximity conditions i.e. closeness in space and time and perception through unaided senses, should be abandoned where there is a close tie of love and affection between the plaintiff and the primary victim.
Forward to Bibliography.
Return to contents.
Normal Fortitude
The final restraint on liability is the requirement that the event be shocking to one of normal fortitude. The concept of 'ordinary fortitude' or 'customary phlegm' is a difficult one. It may be thought that it is at odds with the 'egg shell skull' rule i.e. one takes one's victim as one finds him, but it is consistent with the general law of negligence, that is that whatever the loss/injury suffered, the type of loss/injury must be foreseeable (see Bourhill v Young, per Lord Wright at 109). The concept was examined in the recent case of Page v Smith [1994]4 All ER 522, where a driver involved in a road accident (i.e. he was a primary victim) in which he received no physical injuries was denied damages for the subsequent return of the condition myalgic encephalomyelitis (sometimes known as chronic fatigue syndrome). Although this is not a psychiatric illness albeit that it has a strong non-physical element, the Court of Appeal decided that he was not entitled to recover on the basis that it was not foreseeable that a person of normal fortitude would suffer this type of injury. The judgment at first instance was overturned on the basis that the judge had erred in holding that the 'normal fortitude' test applied only to one who does not participate in the accident. However, the advantage of restricting this to such a secondary victim is that, in cases where someone has actually participated in the shocking event, the need for a judge to make a decision about the degree of 'shockingness' in each particular accident is removed. Further, the Court of Appeal decision was unsatisfactory in that it leaves open the question whether, if Mr Page had suffered physical injury, however minor, would this have been enough to get him across the threshold, so that his susceptibility would not be called into question? In other words, the event would then automatically be classified as 'shocking to a person of normal fortitude'? If it were possible to make this leap, there is something most unsatisfactory about its lack of logic. Fortunately, on 11th May 1995, the House of Lords allowed the plaintiff's appeal (by a three to two majority) and confirmed that the normal fortitude rule only applies to secondary victims, and as physical injury to the plaintiff was foreseeable then psychiatric injury was also foreseeable and there is no rule of law which says that psychiatric injury and physical injury have to be regarded differently when the plaintiff is a primary victim. In other words, it is enough to foresee personal injury in its wider sense. However, as two of the three Court of Appeal judges did not deal with the other aspect of the defendant's appeal i.e. causation, the case has been sent back for a finding on this point.
Even applying the normal fortitude to secondary victims only is the rule still justifiable? Or is it at least arguable that it should only apply to the secondary victim who is only a mere bystander? There is some suggestion in the first House of Lords decision in this area (Bourhill v Young [1943] AC 92) that the person who frequents the streets who is supposed to be possessed of the customary phlegm, is not in a special relationship to the primary victim of the accident and is therefore just a mere bystander (Lord Porter at 117).
The Commission draw no provisional conclusions on the normal fortitude point, but point out that other cases of personal injury regard 'physically' sensitive people (i.e. not of normal physical fortitude) as foreseeable (Haley v London Electricity Board [1965] AC 778), and also suggest that the distinction between normal and abnormal fortitude is too crude.
Forward to Bibliography.
Return to contents.
Some Further Matters
There is an oddity in psychiatric injury claims in regard to the liability of a defendant who inflicts injury upon herself and thereby causes psychiatric injury to one who witnesses it. The Commission give the example of someone who commits suicide in front of his daughter. Although there is no English authority it has been suggested in an Australian case that there would be no liability (see Jaensch v Coffey [1984] 155 CLR). The argument appears to be that placing a duty on people to take care of themselves conflicts with the right to self-determination. It does present difficulties when there is also contributory negligence (see Lord Oliver's comments in Alcock v Chief Constable of South Yorkshire Police [1992] AC 310, at 418). No provisional conclusions are drawn by the Commission on this point.
The Commission also considers whether there should be liability for negligently communicated bad news, whether true or false. No provisional recommendations are made, but it is pointed out that there is cogency in arguing that this would place an undue burden of responsibility on the professional people whose task it is to break bad news, and result in a cautionary attitude which may lead to delay in communication.
With regard to psychiatric illness caused by property damage, the Commission provisionally conclude that the criteria employed to assess liability, should be analogous to, but no less restrictive than those applied to human safety or injury.
The Commission also consider the liability of an employer in respect of psychiatric illness caused through stress, or other work-related conditions. In the case of Walker v Northumberland County Council [1995] 1 All ER 737 a social worker succeeded in recovering damages following a second bout of psychiatric illness caused through overwork. Although the first illness was held not to be foreseeable, the Court held that the first illness had effectively put the employer on notice, and that further psychiatric illness was foreseeable if the employee was again subjected to overwork etc. Both findings are subject to an appeal. The Commission concludes that, subject to standard defences, there should be liability in such a case. This must surely be correct as a matter of policy: employers should be aware of the effects of stress and the need to take steps to minimise its occurrence.
Forward to Bibliography.
Return to contents.
A Statutory Framework
The Commission examines the law of other jurisdictions, and also those where there is a statutory framework governing recovery for psychiatric illness (for example, Australia). The question is posed as to whether legislation here is required in relation to negligently inflicted psychiatric illness. Certainly, in McLoughlin v O'Brian [1983] 1 AC 410, Lord Scarman was in favour of this. The Commission's provisional conclusion is that legislation is required to reform the law in the central area where the defendant has negligently injured or imperilled someone other than the plaintiff. On the other hand, they do not think it would be sensible to attempt to codify in a comprehensive legislative scheme the whole of the law on negligently inflicted psychiatric illness, preferring that to be dealt with by incremental judicial development.Forward to Bibliography.
Return to contents.
Conclusion
In summary, therefore, the Commission favours a number of important law reforms. However, on the central issue of whether the distinction between physical injury and psychiatric injury should be removed, the Commission provisionally concludes that proximity restrictions of one sort or another should remain. In this regard, it is interesting to note the medical research which has suggested that shock causes changes in the chemical composition of the nervous system, (see e.g. van der Kolk 1984). Although the issue of causation may still prove difficult, would general medical acceptance of this remove the proximity requirements from nervous shock claims? Further developments in this field are awaited with interest.Bibliography
Mullany, N J & Handford, P R (1993) Tort Liability for Psychiatric Damage (London:Sweet & Maxwell) p 323
Report (1989) Herald of Free Enterprise Arbitrations Vol 5 No 5 Personal and Medical Injuries Law Letter
van der Kolk ,B A (ed) (1984) Post-Traumatic Stress Disorder: Psychological and Biological Sequalae (American Psychiatric Press)
Return to contents.