The issue of recovery of damages for negligently inflicted psychiatric harm is widely regarded as not only highly ridiculous and illogical, but also as one of the most controversial in the law of torts. On one hand is the view that psychiatric illness should be treated no differently from physical injuries to the person, and damages for the former should be no less extensive than the latter. On the other hand, though, is deep scepticism about the reality of conditions grouped together under the label of psychiatric illness, and the problem of identifying and segregating the true claimants. Since old times law has been cautious about awarding damages for non physical harm to any person. Even today, this general perception has not changed. English law has always tried to follow a delicate middle path with regards to pragmatism and principle, but in this pursuit it ends up neither here nor there, and ends up looking glaringly inadequate. This essay aims to highlights the evolution of the legal position on psychiatric injury in the light of landmark English cases.
Psychiatric Injury – Evolution of a concept:
Initially psychiatric injury was called ‘nervous shock’ because it was treated as a response to an extremely traumatic event. But this was gradually replaced by ‘mental injury’ due to the expansion in law as to what came under its ambit to claim damages. Most mental injury though comes under the category of Post Traumatic Stress Disorder (PTSD). At the outset damages could not be claimed for psychiatric damage unaccompanied by physical damage though now claims can be filed for psychiatric injury without physical damage. Damages can also only be claimed if the mental injury gives rise to a recognized psychological disorder and not for normal grief and sorrow experienced on the demise of a person.
Psychiatric injury is a form of injury which affects a person like physical injury but it causes more problems in law as there are difficulties in putting a monetary value on such harm; there is also the risk of fictious claims and excessive litigation, and the problems of proving the link between the defendant’s negligence and the injury to the claimant.
The claimants of psychiatric injury are classified into three broad categories – primary, secondary and special categories.
The Alcock case lays down the concepts of primary and secondary victims, but these were further elaborated in Page v Smith. In this case, the victim was involved in a road accident but was not physical injured. Almost immediately after the accident he yielded to an acute revival of chronic fatigue syndrome (myalgic encephalomyelitis) from which he had periodically suffered in the past. The defendant argued that any normal person without any history of any psychiatric illness will not become ill because of a minor accident.
The House of Lords, in this case, classified the victims into primary and secondary according to their involvement in the accident. Essentially, primary victims are claimants who
(1) suffer severe physical injury or succumb to mental illness triggered by trauma of accident or its aftermath, or
(2) don’t suffer from any bodily injury from an accident but suffer from shock and fear leading to mental illness.
A claimant who is not directly associated with the accident in any way and suffers no injury as a result but suffers from psychiatric harm by witnessing injuries to others comes under the category of secondary victims. To keep a check on the number of false claims arising out of this provision of law, control mechanisms requiring proximities of relationship, time and space, etc were devised. Firstly, he must be closely related to the injured person by ties of love and affection like parents and children, spouses, and those who can establish such a relationship due to special factors; Secondly, he must be physically near the place at the time when the traumatic event took place; Thirdly, he should have perceived the event via his own unaided senses and not by the notifications of third parties.
Additionally, there are provisions for bystanders, rescuers, employers, and witnesses to self-infliction of psychiatric harm to claim compensation as a result of psychiatric injury too. The courts require strong proofs to award compensation to the victims lying in this category.
Page vs. Smith also gave that a person suffering from unforeseeable psychiatric injury could claim damages as long as physical injury was foreseeable from the event. This was based on the thin skull principle which held the defendant responsible for any damage caused due to any pathological predispositions in the claimant.
As a consequence, mere bystanders and relatives like siblings, in-laws etc. could not claim damages. Lord Ackner however said that bystanders could claim damages if the incident was especially horrific. McFarlane v E.E. Caledonia Ltd though negated this by saying that bystanders could not claim damages however horrific the accident as it went against the general principles of Alcock.
McLoughlin v O’Brian was another landmark case that expanded the rule regarding proximity of time and place to cover the immediate aftermath of the event. In this case the law moved in the direction of a test of ‘reasonable foreseeability’, which states that witnessing the immediate ‘aftermath’ was as good as witnessing the accident as the state of the victim had not changed in that while. It was upheld by the House of Lords and approved in Alcock. If a person views the victims in the same condition as they were immediately after the incident and is psychiatrically injured by it, he will be considered a secondary victim.
Those who watched a disturbing event on television could also not claim damages but the case did not rule out claims for mental injury caused due to live television transmission of an incident. In Alcock while the television showed the happenings in the stadium which could lead to fear in the minds of the viewers for their loved ones, no individual suffering was shown such that it could lead to the founding of a claim. The illness has to be caused by suddenly witnessing a horrifying event which shocks the mind and leads to mental injury.
White vs. CC South Yorkshire, another Hillsborough case, held that the policemen who acted as rescuers at the event could not claim damages for mental injury by claiming to be primary victims. There was no special category for them. They could not bypass the standards established by Alcock of having close ties of affection with the people threatened. It was felt to be unjust by the court that policemen should get compensation while relatives of the victims were not. They were also not allowed to claim damages on the basis that their employer, who was responsible for the disaster, owed a duty of care to them as it would mean that rescue workers employed by someone else like an ambulance crew could not claim damages as their employers were not responsible for the act.
In 1998 The Law Commission on Liability of Psychiatric Illness recommended reforms to the existing position of English Law regarding compensation for psychiatric injury. It favoured the continuation of control mechanisms but wanted to broaden the scope of recovery of damages for secondary victims by eliminating the requirements for being present at the event or shock being caused by a sudden event.
The concept of psychiatric harm has, as illustrated in this essay, gone through plenty of transformations and modifications in various cases but still not reached a satisfactory level where it can be unquestionably and universally accepted by all. Some inconsistencies still persist in the awarding of damages.
One way to do away with these inconsistencies would be to widen the category of secondary victims by removing the need for them to be present at the scene or its aftermath. The requirement for a sudden shocking event should also be abolished.
The test of reasonable foreseeability ought to be based on ‘informed judicial opinion’ by courts, not expert psychiatrists; over-reliance on medical categories can be as misleading as fixed legal principles.
A more principled approach can also be adopted by removing the artificial barriers to recovery applied to secondary victims (this will expand the range of potential claimants), as well as by requiring primary victims and claimants who suffered physical injury to show that psychiatric harm was foreseeable in the circumstances (this will narrow the range of potential claimants).
Finally, our response to claims for psychiatric harm should be more intuitive. Rather than focusing on categorisation of victims, we must put more emphasis on notions like fault and culpability on the defendant’s part. This would take us back to the theory of foreseeabilty.
Hence, the evolution in the matter has been remarkable but there are some issues which have to be addressed so as to have a consolidated and concrete law on the claims of psychiatric damage. For that, more research should be carried out in this area of law.
# Victorian Railways Comrs v Coultas (1888) 13 App Case 222
# John Murphy, Street on Torts, Oxford University Press, 11th Edn. pp. 219
# Alcock v Chief Constable of South Yorkshire Police (1992) 1 AC 310, HL
#  AC 155, HL
#  2 All E.R. 1
#  1 A.C. 410
#  2 A.C. 455
# Law Com. No 249
# supra 6 pp 433 (Lord Bridge)
# Michael A. Jones, Liability for Psychiatric Damage: Searching for a Path between Pragmatism and Principle.
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