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Critically analyse the way the courts have developed and limited the law in relation to claims for psychiatric harm by secondary victims.

Date authored: 18 th August, 2014.


This paper will attempt to analyse the development of the law regulating the negligent infliction of psychiatric harm to secondary victims. This area of law is one filled with uncertainty due to the various limitations that have been introduced in an attempt to restrict an expansion of potential claims. The Law Commissions has expressed its concerns in their report entitled ‘Liability for psychiatric illness’, stating that “the common law has taken a wrong turn” [1] with respect to psychiatric injury. This paper aims to demonstrate the legal shortcomings surrounding psychiatric injury to secondary victims and how they have come to be.

What is psychiatric injury and how is it established?

The concept of psychiatric injury is, in itself, quite difficult to quantify. Indeed, when writing the Diagnostic and Statistical Manual of Mental Disorders, the American Psychiatric Association admitted that: “no definition adequately specifies the precise boundaries for the concept of ‘mental disorder’” [2]. The wide scope of this concept has led to judicial activism in imposing control mechanisms preventing the opening of floodgates to litigation. However, as Lord Steyn famously observed, this activism has created “a patchwork quilt of distinctions which are difficult to justify” [3].

The law has developed to only compensate those who suffer from a “recognised psychiatric illness”, as enunciated by Lord Denning in Hinz v Berry[4]. Such an approach is very restrictive when considering that medicine and psychology are ever-developing disciplines. The reason behind a requirement of ‘recognised medical condition’ is the judiciary’s attempt to limit claims. Alcock v Chief Constable of South Yorkshire


proved to be useful precedent in doing so. Indeed, the case illustrated judicial control mechanisms restricting potential claims, including: the existence of a relationship between the claimant and the victim of physical harm; proximity of space and time between the claimant and the event (or its immediate aftermath); sudden shock suffered by the claimant; and a perception of the event with their unaided senses. Although at a first glance these mechanisms may appear innocuous, when examined individually they prove to be restrictive and perhaps unreasonably insular.

Establishing a relationship between the claimant and a victim

Requiring the claimant to prove a relationship of close ties of love and affection between them and a victim of harm has been the subject of much debate. Although Lord Keith in Alcock[6]determined what such a relationship may consist of, the circumstances under which it is presumed are limited, excluding siblings and cohabitees, among others. Considering that the law must promote what is “fair between one citizen and another” [7], is it right to deny compensation to an unmarried claimant who has lived with their partner for several years?

The injustice is further highlighted through the exclusion of rescuers from bringing claims for psychiatric injury, a rule controversially established in the cases of White v Chief Constable of South Yorkshire [8]. The result is a denial of protection to those who risk their lives to save others. Yet, the courts have used public policy considerations as a defence to these control mechanisms, forming a powerful limitation on the imposition of liability.

Proximity of space and time between the claimant and the event

Furthermore, in finding liability for psychiatric injury it is necessary to prove a physical proximity between the claimant and the eventThis need to establish proximity is, once more, a matter of policy, limiting claims to only those who have witnessed the event or its immediate aftermath. As the law used to stand, the claimant had to witness the actual event[9]. However, following cases like McLoughlin v O’Brian


, and the concept of ‘immediate aftermath’, this rule appears to have become increasingly relaxed. It should be noted that over active judicial intervention in this area might not increase fairness, as Michael Jones comments, “Liability for psychiatric illness should not depend upon the race between the plaintiff and the ambulance” [11].

However, the term ‘immediate aftermath’ has been the cause of confusion and uncertainty. In Alcock the court held that the passing of 8 hours meant that the ‘immediate aftermath’ criterion was not satisfied. Establishing such a precedent meant there was a limited time frame for which a person could claim, further restricting access to justice in this area. Indeed, in Lord Oliver’s words: “the concept of ‘proximity’ is an artificial one which depends more upon the court’s perception… than upon any logical process of analogical deduction ”[12].

Such a statement is evidenced by the controversial case of Ceri Ann Walters v North Glamorgan Health Authority


where a woman was allowed to successfully claim for nervous shock 36 hours after the death of her son. Although the Court of Appeal insisted that this case was not to be treated as a change in the law, it made clear that the requirement of proximity is not applied coherently. If the criterion was indeed of temporal proximity it would be clear cut – if the claimant witnesses the aftermath of the event outside a specified time frame then they are barred from claiming. Yet, the courts have not applied the rules in a uniform way, leading to a lack of certainty as to how the term ‘immediate aftermath’ will be applied on any given day.

Sudden shock to the claimant

In an attempt to prevent a flood of litigation, the courts have imposed a further requirement that the claimant suffer a sudden shock. However, such a test fails to take into account that people react to shocking situations differently. Equally, it is rare for shock to arise as “a rabbit punch to the nervous system”[14] and the law has failed to keep pace with medical opinion in this area. Alcock went on to define nervous shock as “the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind” [15]. Yet, requiring proof of sudden shock may not always lead to just outcomes, considering people may have different perceptions of and reactions to like events. Indeed, in Sion v Hampstead Health Authority[16]a father who watched his son die over 14 days was denied compensation due to a lack of sudden shock, illustrating the extent of injustice caused by such a requirement.

Witnessing the event with one’s unaided senses

Aside from sudden shock, a claimant has the burden of proving that they witnessed the event “through the medium of the eye or ear without direct contact” [17]. Satisfying such criteria may be troublesome for those who hear of the event in question from others and are not present at the scene. Indeed, it seems unfair that a mother, having gone into shock from hearing about her child’s death could fail in her claim. Winfield and Jolowicz have stated that the legal principles surrounding psychiatric injury present “the law with the most profound problems and it has only kept it under control by drawing a series of arbitrary lines” [18]. However, the courts continue to enforce these arbitrary rules by putting forward a defence of public policy in favour of limiting potential claims.

Public policy arguments against extending liability for psychiatric injury to secondary victims

The unchanging and confusing state of the law governing psychiatric injury to secondary victims can be wholly attributed to the overuse of public policy arguments. In Anns v London Borough of Merton[19] Lord Wilberforce stated that it is “ necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed ”[20]. Indeed, such reasoning has become an essential element when determining whether liability should be imposed and the courts have increasingly used it to prevent claims being brought.

Furthermore, in White, the court made it clear that justice must be seen to be done by the public. Lord Hoffman stated that the greatest consideration is whether the public “ would think it wrong that policemen… should have the right to compensation for psychiatric injury out of public funds while bereaved relatives are sent away with nothing ”[21]. Yet, the courts’ overzealous attempt to satisfy public opinion means that potential injustices are overlooked in favour of policy. Indeed, despite judges like Lord Lowry expressing concerns about public policy considerations acting to defeat good claims [22], the floodgates argument remains as strong as ever, placing heavy restrictions on potential claims. Public policy arguments continue to shape the law governing psychiatric injury, causing uncertainty as to which claims can be successful.


The control mechanisms used by the courts in establishing psychiatric injury to secondary victims are overly exclusive and judicial discretion in applying them has created confusion and uncertainty. The present state of the law in this area can be attributed to the courts constant reliance on public policy arguments. The developments in this area of law have neither followed developments in the field of psychology nor modern consensus on allowing such claims. Equally, it can be said to have put the law into a position which is beyond saving through judicial intervention. As the Law Commission noted, “the common law has taken a wrong turn” [23] and it is this author’s opinion that reform is necessary to restore fairness and justice to an area of law beset on all sides.

[1] Law Commission Report No. 249, March 1998, para 4.2

[2] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994, at xxi

[3] White and Others v Chief Constable of South Yorkshire and Others [1999] 2 AC 455, at 500

[4] [1970] 2 QB 40, 42

[5] [1992] 1 AC 310

[6] Ibid, at 397

[7] White (n. 3), at 511

[8] Ibid

[9] Bourhill v Young [1943] AC 92

[10] [1981] QB 599

[11] M Jones, Liability for Psychiatric Illness – More Principle Less Subtlety [1995] WJCLI 4, at 9

[12] Alcock (n. 5), at 411

[13] [2003] PIQR 16

[14] S Allen, Post-Traumatic Stress Disorder: The Claims of Primary and Secondary Victims (2000) JPIL 108

[15] Alcock (n. 5), at 387

[16] [1994] 5 Med. L. R. 170

[17] Bourhill (n. 10), at 103 (Per McMillan LJ)

[18] W Rogers, Winfield and Jolowicz on Tort (16th edn, Sweet & Maxwell 2002), at 189

[19] [1978] AC 728, at 752

[20] Ibid, at 510

[21] White (n. 3), at 510

[22] Spring v Guardian Assurance [1995] 2 AC 296, at 326

[23] Law Commission Report No. 249, March 1998, para 4.2

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