Physical Injury Is Suffered

“If some very minor physical injury is suffered and this triggers a far more serious psychiatric disorder no one questions that damages are recoverable for the psychiatric disorder. If the victim of the negligence escapes minor physical injury but the shock or fear of the peril in which he is placed by the defendant's negligent conduct causes psychiatric injury I can see no sensible reason why he should not recover for that psychiatric damage”.

There has been noteworthy controversy in regards to the position of rescuers in light of their claims for psychiatric injury. The common law is in a state where the law has very firm rules and restrictive approaches regarding the law on psychiatric injury. This approach has led to the implementation of different categories of claimants who are to be examined in a different manner. These underlying principles concern principally firmness in the law and it can “be said that the common law should not pay attention to these feelings about the relative merits of different classes of claimants”.

The law involving psychiatric injury can be seen as heavily influenced by public factors which generate pressure on the legal system to evaluate the moral values of a decision in light of the firmness of the law.

Until the 19th century damages were not awarded for ordinary grief or sorrow caused when a relative or friend is killed or injured and also the courts have been cautious in awarding damages for non-physical harm to the person even when the distress goes beyond the normal stress. This attitude was abandoned and further led to the judicial acceptance of psychiatric injury as a form of “nervous shock. Psychiatric injury has developed since this and as the law stands “a claimant who became mentally ill because of the shock to his nervous system caused by an incident that either threatened his own safety or involved witnessing exceptionally distressing injuries to others could in certain circumstances recover compensation for psychiatric harm” or as it is now preferred “nervous shock”,

Psychiatric injury claims are profoundly restricted through the duty of care concept. This helps to avoid the inconsistent burden of liability between different classes of citizen as a relaxation of rules in the law could result in a “floodgate” of claims. The courts have to “draw a line between sorrow and grief…and nervous shock and psychiatric illness” as stated by Lord Denning in Hinz v Berry6 and therefore only medically recognised psychiatric injuries can be actionable and mere sorrow or grief are un-actionable.

These categories are imperative for the claim as the judgement and value of compensation depend on the class of victim; where primary victims have less restrictions placed upon them during a claim as distinct to secondary victims who need to satisfy a number of conditions before the claim will be valid. A primary victim is perceived to be able to recover easier and quicker than a secondary victim.

Lord Hoffman has stated that the law should be firm and the common law should not rely on a relaxation of values due to the sentiment of the claiming party. The main principles of psychiatric injury emanated from the landmark case Dulieu v White and Sons 1901 where the woman's claim as a primary victim under psychiatric injury was accepted even though there had been no physical injury caused because she was in fear of her own safety and there was an actual zone of danger. This case developed the law as this was the first case in which a psychiatric injury claim was accepted; this expanded the horizons on the law of psychiatric injury. This case gave a distinction between primary victims and secondary victims which was further extended in the law from Page v Smith 1995 where the claimant was involved in a minor car crash in which he suffered no physical injury but the accident resulted in a reoccurrence of myalgic encephalomyelitis (ME) which was in temporary remission. He was seen to be a primary victim as the courts held that although the defendant didn't know of the ME they applied the ruling and principle of the “thin skull rule” as the defendant admitted that he had been negligent.

A primary victim has been defined over time as someone that has suffered a psychiatric injury as a consequence of being placed in danger by the defendant's negligent act as opposed to simply suffering a psychiatric injury from witnessing an incident or as a result of the incident. As the law has developed a primary victim does not have to suffer any physical harm but three criteria need to be satisfied. A primary victim must have physically been injured or could forseeably have been physically injured as a result of the defendant's actions. Rescuers such as policemen, firemen and volunteers who voluntarily put themselves in the way of danger can still be seen a primary victims if they suffer a psychiatric injury as a result.

The primary victim has to be in a “zone of physical danger”. Where the defendant has created a “zone of physical danger” the courts must determine the extent of the zone of danger. This test necessitates the need that although physical injury hasn't been caused, it was reasonably foreseeable that the claimant could suffer a physical injury as a result of the defendant's negligent act. The foreseeable risk of harm must be a reasonable fear of physical injury. This touches on the requirement of an actual danger as in various circumstances a claimant has suffered a psychiatric injury as a result of believing he was exposed to a danger but was in fact not exposed to this danger. The theory of foreseeability was seen to combine with an old view that someone can suffer horror or bereavement without ill effect in the case of Bourhill v Young where the courts needed to establish that there was forseeability in order to establish a duty of care. Although the concept of foreseeability may be wide, in order to keep potential liability narrow there is a fairly highly restrictive view of the circumstances in which psychiatric injury may be caused. The person who has caused the death or personal injury does not have to specifically cause the circumstances that have cause a death or personal injury; a category known as unwitting agents or involuntary participants are those who due to the defendant's negligent are placed in circumstances where they cause the death or personal injury or reasonably believe they have done so as Lord Oliver stated in Alcock v Chief Constable of South Yorkshire 1992 Referring back to Lord Hoffman's statement that the law should be strict and shouldn't pay attention to the feelings of the claimant, there seems to be a balance in the law and due to the restrictions in place the law does pay some attention to feelings about people in different classes of claimant but only to some extent.

Although the class of primary victims is fairly unrestrained in the sense that the tests are moderately narrow, the concept of secondary victims is fairly restrictive as there are many control mechanisms governing secondary victims.

Secondary victims are non-participants in an event but are those that experience a nervous shock as a consequence of witnessing an event or face a nervous shock in respect of the safety of others. A secondary victim can witness an act or in some cases can experience a shock as a result of being made aware of an act of violence or is a parent or guardian of a primary victim who is under 18 at the time of the incident. The law concerning secondary victims is fairly complex and has evolved from a number of House of Lord cases. A secondary victim can be seen as a primary victim that does not satisfy the conditions of a primary victim. Although this may suggest that it is open to a large amount of claimants, there are control mechanisms in place that restrict the number of successful claims.

The liability for secondary victims was increased in the case Hambrook v Stokes Bros the Court of Appeal consequently extended the liability in this case allowing the claimant to recover in this case because she had feared for the safety of her children; a direct impact or a fear of immediate personal injury to the claimant was not needed as her reaction was induced by what she witnessed with her own eyes. This case extended liability in psychiatric cases for secondary victims, but may well have opened liability to such a great extent that the number of claims from “secondary victims” could seem limitless; thus facilitating the “floodgates” argument. To preclude such a scenario from occurring a number of control mechanisms have been established and put into place to ensure more stringent limits prohibit a substantial number of claims from simple witnesses to an accident from having a valid claim. The control mechanisms were brought about due to scepticism about the risk of fraudulent claims and the nature and extent of psychiatric damage that is claimable, placing limits on who could recover for psychiatric injury and in what circumstances.

For a claim as a secondary victim, the injury must be a medically recognised psychiatric injury. The control mechanisms evolved from the case of Mcloughlin v O'Brein and were further refined in Alcock v Chief Constable of South Yorkshire which is the current leading case regarding secondary victims. The need control mechanisms has been stated from the judgement by Lord Wilberforce in Mcloughlin v O'Brien, “There remains, in my opinion, just because ‘shock' in its nature is capable of affecting so wide a range of people, a real need for the law to place some limit on the extent of admissible claims. It is necessary to consider three elements inherent in any claim: the class of persons whose claim should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused”.

For a secondary victim to claim for psychiatric injury, a number of lordships have stated that they must satisfy the control mechanisms laid down in Mcloughlin and Alcock. In regards to rescuers, they cannot fulfil the control mechanisms, such as having a close tie of love and affection, so they ‘bypass' the three stage test.

Mcloughlin v O'Brien laid out the possibility that a nervous shock does not have to occur at the immediate aftermath of an accident and although the courts need to demonstrate the claimant's proximity in time and space, the courts held that “witnessing the aftermath was the equivalent of witnessing the accident itself”. This raises a number of other questions as to the immediate aftermath of the accident and in which cases nervous shock could apply. The control mechanisms have been laid down in the leading case of Alcock v Chief Constable of South Yorkshire which were put into place to restrict the number of claimants and thus to restrict a situation which opens up the ‘floodgates' argument. For a claimant to be successful, all three control mechanisms must be satisfied, these look at the proximity between the claimant to the accident and the immediate victims of the accident. The mechanisms that need to be fulfilled are concerned with; 1) close ties of love and affection with a primary victim of the accident, 2) the claimant must have been present to and witnessed the accident in its immediate aftermath and 3) the psychiatric injury must be caused by perceiving an event with the claimants own unaided senses, by direct perception or in its immediate aftermath and not simply from hearing about the incident.

The case of Alcock concerned an event where too many people were allowed to view a football match, in which 96 fans died and many were injured as a consequence of being crushed. The claimants in this case suffered shock as a result of fearing that they have lost a family member. Two of the claimants were in the ground itself but were not in the same area where the disaster occurred whereas the remainder of the claimants heard of the disaster through the radio or television broadcasts. The claims all failed to satisfy the 3 stage test.

In regards to the close ties of love and affection test, it was held that for those who lost brothers or brother-in-laws, there was no evidence of any close ties of love and affection, whereas Alexandra Penk who lost her fiancé in the accident satisfied the test and further their lordships held that “there must generally be a close tie of love and affection between the claimant and the primary victim of the sort normally enjoyed by spouses and by parents and by children”.

The second part of the test concerns the immediate aftermath of the accident, this looks at the proximity in time and space of the incident. Historically it was said that the claimant must have witnessed the accident or must have encountered the aftermath within a brief period of time. This poses the question of what is deemed to fulfil immediate aftermath. It is essential that “a line has to be drawn in rescue cases between rescue in the sense of immediate help at the scene of the disaster, and the treatment of the victims after they are safe. I do not believe that this will be difficult to recognize on the facts of a particular case”. In Mcloughlin v O'Brien although the claimant saw her family in the hospital two hours after the accident, this was sufficient since the victims were in the state that they would have been on the roadside. It was also held in Alcock that witnessing a relative in the mortuary eight hours after the accident, even though they were still in a bad situation, lacked sufficient proximity. Consequently it was held in Galli-Atkinson v Seghal [2003] that although the body of a relative was in a clean but disfigured state an hour after the incident, this was deemed to be sufficient proximity. What amounts to the immediate aftermath is likely to turn on particular facts of different cases.

The third element of the test requires the psychiatric injury must be caused by perceiving an event with the claimants own unaided senses, by direct perception or in its immediate aftermath and not simply from hearing about the incident. This looks at the proximity of perception; where in the case of Alcock, it was pronounced that merely witnessing the incident via television or simply hearing about an incident regarding a relative, however shocking is not enough to suffice a claim under English Law.

In the case of Alcock there were a number of claims in regards to employers. The claimants in White v Chief Constable of South Yorkshire Police argued that as employees, they should have been owed a pre existing duty of care by their employers. The House of Lords held that the employment argument was not sufficient and they are seen as rescuers so they should be treated as primary victims rather than secondary victims.

Those victims that have assisted at the scene of an accident are classed as rescuers. Although the law regarding rescuers can be seen to adapt well in different circumstances, it can be seen as being very inconsistent, the main principle is to avoid ‘mere' bystanders who have simply witnessed an incident from claiming.

The law regarding rescuers is fairly inconsistent and it is argued that an extension of the law could help produce a more just result. It can be argued that a rescuer can foresee an injury from a rescue attempt and this poses the question of who can recover damages in respect of unadulterated psychiatric harm sustained as a result of a rescue.

“What rescuer ever thinks of his own safety? It seems to me that it would be a very artificial and unnecessary control, to say a rescuer can only recover if he was in fact in physical danger. A danger to which he probably never gave thought and which in the event might not cause physical injury”. From the case of Harwood v Haynes 1935 a rescuer who has suffered a physical injury as a result of the rescue attempt can have an action in negligence against the person who has caused the initial accident. Although it may seem that someone who goes in aid of another is volunteering to the risk of injury, it was held that someone may have a legal or moral obligation to protect life or property and therefore they are not simple volunteering to the risk of injury. This may lead to the argument that should a ‘professional rescuer' be allowed to recover for psychiatric injuries in the line of duty? This was answered by Judge L.J in Frost who insisted that it should make no difference: a rescuer is a rescuer. “The concept of a rescuer as someone who puts himself in danger of physical injury is easy to understand. But once this notion is extended to include others who give assistant, the line between them and bystanders becomes difficult to draw with any precision”.

Taking this principle from Haynes v Harwood, it was held in Chadwick v British Transport Commission [1967] that a rescuer who suffers only psychiatric injury can claim as a primary victim. In this case, the principle from Haynes was adopted and extended for use when the victim only suffers psychiatric shock and rescuers were subsequently classified as primary victims even when they were not in any physical danger themselves.

The position of rescuers has now changed in the law following the case of White v Chief Constable of South Yorkshire Police [1992] where it was held that rescuers can only claim if they fulfil the tests laid down for primary victims in psychiatric injury, or the Alcock control mechanisms. This case further explored the precincts of Alcock, where 6 policemen were denied in their claims for psychiatric injury whilst they were on duty in the at Hillsborough firm. Waller J held that the policemen were in fact in the position of a bystander of the incident and were not entitled to claim for psychiatric injury. He stated that it was part of the police officer's duty to deal with such situations which may cause injuries to ordinary people. Although Waller J stated this in White, it does not mean that there is a rule that those in uniform (professional rescuers) could not recover for psychiatric illness or injuries by shock because this would raise the argument that would a professional rescuer be allowed to recover if he participated in a rescue attempt whilst he was off duty whereas if he did the same whilst on duty he would not be able to recover? The only possible solution for this would be to look at the tests of forseeability where it can be expected a professional rescuer to be of such a fortitude that the claim would thus require a horror of such great magnitude that it can be foreseeable that even the thickest-skinned professional may suffer a psychiatric illness. White has changed the position of rescuers in the sense that rescuers along with employees are now to be given no favourable treatment.

The claims were also denied on the basis that if they were given compensation, there would be the fear that this decision would infringe many principles where the claims for compensation for civilian victims of the same disaster were denied. Their Lordships over time have sought to find a position that meets the requirements of distributive justice; i.e. the ideal according to which a fair allocation of benefits and burdens should be established both within major social institutions and across society as a whole.

This denial of compensation for the policemen gives greater depth to the law in regards to distributive justice as stated by Lord Hoffman “that such an extension would be unacceptable to the ordinary person because it would offend against his notions of distributive justice and shows the balance between principles and ideas of distributive justice. He would think it unfair between one class of claimants and another, the best not treating cases alike and, at worst, favouring the less deserving against the more deserving. He would think it wrong that policemen, even as part of a general class of persons who rendered assistance, should have the right to compensation for psychiatric injury out of public funds whilst the bereaved relatives are sent away with nothing”.

The fact that rescuers are receiving no special treatment goes with this notion of distributive justice because they are not favoured in any way, but there is still an inconsistency in the law in terms of a professional rescuer who acts whilst off duty, is it adequate enough to treat them dissimilar as to if they were on duty?

Psychiatric injury is an area of law that has been criticized heavily due to the policy factors such as control mechanisms that have been put in place. These policy factors restrict further development in the law and further restrict the view that “the common law…should stick to principle and not concern itself with distributive justice”. The idea of distributive justice is that the losses should fall on the whole of society. The control methods and classification of victims shows the balance between policy factors and a moral just result, the fact remains that as the law stands, from the cases of Alcock and White although the uniformed decision to dismiss to all claims adds little to the development of the law, it at least provides a clear foundation which is easy to administer and does not favour different classes of individuals, this does not feed the argument where if the police officers were given compensation, would it be just to say the bereaved left with nothing? The search for principle in this area of law has been called off and thus restricting an extension of liability to rescuers. It is essential that the law does increase liability in terms of rescuers to clear up the employment argument and assure rescuers who suffer harm that they are compensated accordingly but it is indispensable that in the future it is essential that claims are dealt with cautiously as not to fall into a state as such stated by Jane Stapleton: “once the law has taken a wrong turning or otherwise fallen into an unsatisfactory internal state in relation to a particular case of action, incrementalism cannot provide the answer”, although it may seem that the law is too restrictive to aid an extension of liability for rescuers, there is still possible scope to do so to fill in the inconsistencies in the law.



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Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310

Bourhill v Young [1943] AC 92

Chadwick v British Transport Commission [1967] 2 All ER 945

Dooley v Cammell Laird & Co. Ltd. [1951] 1 Lloyd's Rep 271

Dulieu v White & Sons [1901] 2 KB 669

Galli-Atkinson v Seghal [2003] EWCA Civ 697 (Court of Appeal)

Hambrook v Stokes Bros [1925] 1 KB 141

Haynes v Harwood [1935] 1 KB 146

Hinz v Berry [1970] 2 QB 40

King v Phillips [1953] 1 Q.B. 429

McFarlane v EE Caledonian Limited [1994] 2 All ER 1

Mcloughlin v O'Brien [1983] 1 AC 410

Page v Smith [1995] 2 WLR 644

R v Blaue [1975] 61 Cr App R 271

Victorian Railways Commissioners v Coultas [1888] 13 App Cas 222

White v Chief Constable of South Yorkshire Police [1992] 1 A.C 310

Other Written Sources

House of Lords Judgements - White & Others v Chief Constable of South Yorkshire and Others, Opinions of the Lords of Appeal for Judgement in the Cause, 3rd December 1998.

Other Sources

Advances in Psychiatric Treatment (1995), Nigel Eastman -

Nervous Shock, When is it compensable? Christopher Gardner Q.C, Lamb Chambers -