NERVOUS SHOCK / PSYCHIATRIC INJURY The law has no hesitation in awarding damages for physical injuries resulting from

negligence, nor for the psychiatric injury associated with physical injury, but psychiatric injury in isolation (formerly known as "nervous shock", and sometimes called "psychic injury" or "post-traumatic stress disorder") is more problematic. The possibility of liability for causing psychiatric injury has been recognised for over a hundred years, but psychiatric injury and physical injury are still subject to slightly different rules.

Basic rules There must be some recognisable psychiatric injury, supported (almost invariably) by medical evidence. rdinary human emotions such as grief and distress are not enough. !in" v #erry $%&'() % *ll +, %('-, .* * mother / suffered psychiatric shock on seeing her husband and children seriously injured in a road accident, just across the road from where she was. *ffirming the trial judge0s award of damages for this inter alia, 1ord 2enning 3, said obiter that a line must be drawn between sorrow and grief (for which damages are not recoverable) and psychiatric illness (for which they are). 4ralj v 3c5rath $%&67) % *ll +, 8-, 9oolf : / had been subjected to e;traordinary treatment during childbirth, and the child died shortly afterwards. *lthough she was not entitled to compensation for grief per se, she was entitled to damages for psychiatric injury as the result of hearing and later seeing what had happened to the baby, and those damages would be increased if because of her grief it would be more difficult for her to recover. ,eilly v 3erseyside !* (%&&8) 7 3ed 1, <-7, .* +lderly visitors // suffering from angina and claustrophobia respectively were stuck for over an hour in a hospital lift that jammed because of negligent maintenance. *llowing 220s appeal, the .ourt of *ppeal said //0s worry about one another, and even panic, were normal human emotions in the face of a most unpleasant e;perience. They were not recognisable psychiatric injuries, so the claim must fail. =ernon v #osley $%&&') % *ll +, 8'', .* /0s small children were being driven by their nanny 2> through 20s negligence the car went into a river and the children were trapped, and / was present while firemen tried unsuccessfully to save the children. / subse?uently suffered mental illness, brought on by the grief and bereavement. 2ismissing 20s appeal from the decision of @edley :, the .ourt of *ppeal said it was not necessary to discount /0s damages by a "grief and distress" factor. nce it was established that / had suffered an injury recognised by the law, caused by 20s breach of a duty of care she owed him, / should recover damages for the injury he sustained. Araser v @tate !ospitals (<((() Times %<B&B((, 1ord .arloway (@cotland) * former psychiatric nurse sought damages for the effects of various incidents in the course of his work in secure hospitals. ,ejecting his claim, the judge said there is no duty to protect an employee from unpleasant emotions such as grief, anger and resentment or normal human conditions such as an;iety or stress. :ohnston v C+D> 5rieves v +verard $<((') E4!1 F& Dn several conjoined appeals, the !ouse of 1ords (affirming the .ourt of *ppeal) rejected claims against their employers by workers who had developed pleural pla?ues as a result of their e;posure to asbestos dust. These pla?ues show the presence of asbestos in the lungs, and that asbestos may lead to serious lung diseasesG the diagnosis of pleural pla?ues thus causes

understandable an;iety. #ut neither pleural pla?ues (which are themselves harmless), nor the risk of contracting some future disease, nor an;iety falling short of psychological illness, constitutes damage of a kind recognised by the law of negligence. ne claimant 5 had suffered depressive illness arising from his an;iety, but the right to protection against psychiatric illness is limited and does not e;tend to an illness suffered only by an unusually vulnerable person because of apprehension that he may suffer a tortious injury. The risk of future disease is not actionable and neither is a psychiatric illness caused by contemplation of that risk. /hysical injuries resulting from shock, rather than from direct contact, are generally treated as if they were psychiatric injuries. 2ulieu v 9hite $%&(%) < 4# 77&, 4#2 * horse-drawn van owned by 22 was allowed by their employee0s negligence to run into a pub run by /0s husband. /, who was serving behind the bar, suffered shock and gave birth to a premature child, who was found to be severely retarded. Dn interlocutory proceedings, the 2ivisional .ourt said the damage was not too remote and the claim should be tried. #ut obiter, the shock must be a shock which arises from a reasonable fear of immediate personal injury to oneself. 5alt v #ritish ,ail $%&6F) C1: 6'(, Tudor +vans : * train driver / with a pre-e;isting but hitherto unsuspected heart condition was awarded damages for a heart attack resulting from nervous shock suffered after thinking he had hit and killed maintenance workers une;pectedly on the line> he was not at fault, and the incident was caused by the negligence of other workers. The claimant must meet the ordinary re?uirements for a claim in negligenceG she must establish that the defendant owed her a duty of care, that he was in breach of this duty, and that his breach of duty was the cause of her injuries. #ourhill v Houng $%&-<) < *ll +, F&7, !1 * careless motor-cyclist collided with a car and was killed. /, getting off a tram <( yards away, heard the collision and later saw the blood on the road> she suffered psychiatric injury and her baby was stillborn. n the facts of the case this damage was not foreseeable, and the motorcyclist had no duty of care to such a bystander. !owever, the !ouse conceded that there was a "shock area" (greater than the area of foreseeable physical damage) in which it might be foreseeable that psychiatric injury would be suffered by a reasonably strong-nerved person witnessing the event. *# v Tameside !ealth *uthority (%&&') 6 3ed 1, &%, .* 9hen 22 discovered that a health care worker was !D=-positive, they wrote to all the patients who had been treated by this worker, advising them of the fact and offering blood tests and counselling. * number of patients // sued for various psychiatric injuries suffered as a result, but their claim failedG 22 had taken reasonable care in the way they broke the news and the support they offered, and had thus not been negligent. !atton v @utherland $<((<) < *ll +, %, .* Dn four conjoined cases concerning employees who had suffered stress-related illnesses at work, the .ourt of *ppeal said the ordinary principles of employers0 liability apply to such cases. The special controls applied to psychiatric injury claims in tort do not apply to claims based on a contractual relationshipG the threshold ?uestion is whether injury to that particular employee0s health was foreseeable, and that depends both on the nature of his work and on any indication he may have given that his health was at risk. 9here injury is foreseeable, an employer is in breach of his duty if and only if he fails to take reasonable steps likely to do some good, bearing in mind the need to treat other employees fairly> it is for the claimant to identify the reasonable steps that the employer could have taken and did not. The claimant has also to show that the

employer0s breach of duty caused the harm he sufferedG ocupational stress simpliciter is not enough. The ordinary rules of causation apply, including the "eggshell skull" ruleG if it was foreseeable that the claimant would suffer some injury, the negligent defendant is liable for all injury of that kind, even if it was worse than could have been e;pected. #rice v #rown $%&6-) % *ll +, &&', @tuart-@mith : / was a woman of -< and had had a hysterical personality disorder for many years. / and her daughter were passengers in a ta;i involved in a collision> the daughter was ?uite badly cut, but recovered. / was not physically injured, but became very unstable mentally. The judge said it was foreseeable that a person of normal disposition and phlegm might have suffered some psychological injury in the circumstances, so / was entitled to claim for the full e;tent of her injuries. /age v @mith $%&&8) < *ll +, 'F7, !1 / was physically uninjured in a minor road accident caused by 20s negligence, but a pree;isting mild psychiatric condition (3+) had been aggravated by the accident. nce the relevant duty of care is established, said 1ord 1loyd, and the shock results in some recognised psychiatric illness, 2 is liable even if the illness takes a rare form or is of unusual severity. @immons v #ritish @teel $<((-) D., 868, !1 * workman . suffered a severe blow to the head, causing headaches and blurred vision lasting several weeks. !e had previously warned his employers about the dangers of the system of work, and he became very angry that his accident had happened because those earlier warnings had been ignored. This anger aggravated a pre-e;isting skin condition (psoriasis) and 220s doctor refused to allow . to return to work until this had cleared up. !is inability to return to work aggravated his condition still further, and this led to severe depressive illness. *pplying Page v Smith and upholding an award of almost IJm in damages, 1ord ,odger said the basic principles can be summarised as followsG $%) * defendant is not liable for conse?uences of a kind that were not reasonably foreseeable. $<) * defendant may not be liable for damage (even foreseeable damage) caused by the claimant0s novus actus interveniens. $F) @ubject to $<), if the claimant0s injury is of a foreseeable kind, the defendant is liable for that injury even if it is more serious than could have been foreseen, or caused in an unforeseeable way. $-) The defendant must take his victim as he finds him. $8) @ubject again to $<), where personal injury to the claimant is reasonably foreseeable, the defendant is liable for all the personal injury (whether physical or psychiatric) resulting from his wrongdoing. .orr v D#. =ehicles $<((7) +9.* .iv FF% * man was badly injured in a factory accident for which his employers admitted liability> he became very depressed and si; years later he committed suicide. !is widow sued the employers in respect of his death, and the .ourt of *ppeal allowed her claim. The 1ordsK decision in Page v Smith had established that the foreseeability of physical injury was enough to establish liability for psychiatric injury to the same victim, and it was not unforeseeable that such psychiatric injury might lead to suicide.

Primary victims The law draws a distinction between primary victims, who can claim for their psychiatric injury under the ordinary rules of negligence, and secondary victims who must satisfy additional tests imposed for reasons of public policy. /rimary victims include those directly affected by the negligent act or omission, those who believe themselves to be in physical danger, and some rescuers. 4een v Tayside .ontracts $<((F) @1T 8((, 1ady /aton (@cotland) * road worker / was instructed to attend at the scene of a road accident> he became aware that there were four dead bodies in a car, and later suffered post-traumatic stress disorder. 2ismissing his claim against his employer, the judge said the concept of primary victim has been e;tended by the courts to cover persons who were involved in the traumatic incident and feared for their own safety but who were not in fact physically hurt, rescuers who were or reasonably believed they were at risk, and persons who participated in some way and believed they were the involuntary cause of another0s death or injury. The pursuer in the present case did not fall into any of these categories. * person to whom the defendant owes a direct duty of care (such as an employee, a passenger in the defendant0s vehicle, or a person with whom the defendant is dealing face-to-face) is a primary victim if she is foreseeably at risk of psychiatric injury. 9ilkinson v 2ownton $%6&') < L# 8', 9right : ,eturning from a day at the races, 2 told / (apparently as a joke) that /0s husband had been seriously injured. / became seriously ill, and sued for damages. The judge said a person who without lawful justification does an act likely to cause mental harm is liable for the harm that results, and awarded / damages of I%(( (e?uivalent to about I%( ((( at today0s values) as well as her actual e;penses. :anvier v @weeney $%&%&) < 4# F%7, .* * private detective 2 wanting to see certain letters in /0s possession told / that he was a police inspector and that /0s correspondent was a 5erman spy. / suffered "nervous shock" (psychiatric injury) as a result, and sued. The court approved the principle in Wilkinson v Downton and said /0s injuries were not too remote> they were a foreseeable conse?uence of 20s unjustified action. *l-4andari v #rown $%&66) % *ll +, 6FF, .* Aollowing a marital dispute, the court ordered a man to give up his passport and his solicitors (as officers of the court) voluntarily took control of it. Dn due course they handed it over to his embassy for amendment, and the man having retrieved it from the embassy proceeded to kidnap his wife and children in order to take them out of the country. The .ourt of *ppeal said that since the defendant solicitors were negligent in failing to notify the embassy of the court order, and since the kidnap was a foreseeable conse?uence of the man0s recovery of his passport, they were liable to the wife for general damages (for physical and mental injuries) of I<( (((. 9alker v Corthumberland .. $%&&8) % *ll +, 'F', .olman : / was a senior social worker who suffered a nervous breakdown, apparently from overwork. !e returned to work but suffered another more serious breakdown within a year, the workload being no less. !is claim for damages against his employer succeededG the duty to provide a safe system of work, said the judge, e;tended just as much to psychiatric damage as to physical injury. The first breakdown may not have been foreseeable, but the second certainly was, and 22 had taken manifestly inade?uate measures to protect /0s health. !ome ffice v #utchart $<((7) +9.* .iv <F& * prisoner # suffered psychiatric injury following the suicide (which he claimed had been foreseeable) of his cell-mate, and sued the prison authorities. Epholding the judge0s refusal to

strike out the claim before trial, 1atham 1: said the Hillsborough control mechanisms below (including "close ties of love and affection") are not meant to apply in all cases of psychiatric injury. # was a prisoner in custody, and the prison authorities owed him a duty to take reasonable steps to minimise the risk of foreseeable psychiatric harm to him. * person who was (or believed herself to be) at risk of physical injury is also regarded as a primary victim and can claim for her psychiatric injury even if she does not actually suffer physical harm. 2ulieu v 9hite $%&(%) < 4# 77&, 4#2 * horse-drawn van owned by 22 was allowed by their employee0s negligence to run into a pub run by /0s husband. /, who was serving behind the bar, suffered shock and gave birth to a premature child, who was found to be severely retarded. Dn interlocutory proceedings, the 2ivisional .ourt said the damage was not too remote and the claim should be tried. #ut obiter, the shock must be a shock which arises from a reasonable fear of immediate personal injury to oneself. /age v @mith $%&&8) < *ll +, 'F7, !1 / was physically uninjured in a minor road accident caused by 20s negligence, but a pree;isting mild psychiatric condition (3+) had been aggravated by the accident. ,eversing the .ourt of *ppeal, and referring the case back for consideration of other matters, the !ouse of 1ords held by a majority that foreseeability of physical injury was sufficient to give rise to liability for psychiatric injury, even though a person of reasonably strong nerve would have suffered no injury at all. Df it was foreseeable to 2 that / would suffer physical or psychiatric injury from 20s careless driving, said 1ord 1loyd, 2 was liable for any such injury whether physical or psychiatric or both. *n active rescuer who gives assistance to those in danger is also treated as a primary victim if he puts himself at risk (or believes he does). This is a policy rule designed to encourage acts of altrusistic heroism (whether by volunteers or by professional rescuers), and does not normally apply to mere bystanders. !ow far it applies to rescuers who come onto the scene after the danger is past is unclear. .hadwick v #ritish ,ailways #oard $%&7') < *ll +, &-8, .* * rescuer who voluntarily spent some si; hours helping to bring the dead and injured out of the wreckage at a particularly harrowing train crash suffered foreseeable psychiatric injury, and was awarded damages against #ritish ,ailways, whose negligence had led to the crash. *lcock v .hief .onstable of @outh Horkshire $%&&%) - *ll +, &(', !1 Dn a comprehensive judgment following the !illsbrough football ground disaster, the !ouse of 1ords said rescuers should continue to ?ualify on policy grounds, even though they were not in a close relationship with the victim. 1ords *ckner, 4eith and liver said obiter that they would not rule out a bystander if the accident was particularly horrific (e.g. a petrol tanker catching fire in a school playground) so that any reasonably strong-nerved person would have been similarly affected. 3cAarlane v ++ .aledonia $%&&-) < *ll +, %, .* * man who had been present on one of the rescue vessels during the disastrous fire at the /iper *lpha oil platform claimed damages for the psychiatric injury he suffered as a result. @tuart@mith 1: doubted the dicta in Alcock and said that as a matter of both principle and policy, the court should not e;tend the duty of care to those who were mere bystanders or witnesses of horrific events unless they satisfied the re?uirements for secondary victims. !ale v 1ondon Enderground $%&&F) /DL, LF(, tton : * firefighter went into the 4ing0s .ross tube station several times to rescue victims from the fire, and was decorated for his bravery. !e subse?uently suffered severe psychiatric injury and

was forced to take early retirment. !e was awarded damages against 22, whose negligence had led to the fire, including a substantial sum for psychiatric injury. 9hite v .hief .onstable of @outh Horkshire $%&&&) % *ll +, %, !1 @i; police officers // claimed damages for post-traumatic stress disorder sustained while dealing with casualties at the !illsborough disaster. The !ouse of 1ords, reversing the .ourt of *ppeal and restoring the order of 9aller :, said they were not entitled to recover damages for psychiatric injury either as rescuers or as employees. Dt is settled law, said 1ord @teyn, that bystanders at horrific events are not entitled to compensation for foreseeable psychiatric injury, and the e;ceptions are narrowly drawn. The law favours those who altruistically e;pose themselves to danger to save others in an emergency, but there is a threshhold re?uirement that the rescuer objectively e;poses himself to danger or reasonably believes that he does so. *s for the employment argument, the employer0s implied contractual duty not to cause harm is no greater than that imposed by the ordinary law of tort, and while the police are entitled to our sympathy their claims are no greater than those of others (such as doctors and other hospital workers, and in this case particularly bereaved relatives) to whom the law denies redress. .ullin v 1ondon Aire *uthority $%&&&) /DL, /F%-, .* * firefighter on duty at a fire at which two colleagues died saw their bodies being brought out and other colleagues0 unsuccessful attempts to resuscitate them. The .ourt of *ppeal refused to strike out his claim for psychiatric injuries and allowed it to go to trialG the effect of the decision in White, they said, is that at least some rescuers should ?ualify as primary victims.

Sec !"ary victims Df the claimant is a secondary victim in no personal danger, she may still be able to claim for psychiatric injuries suffered as a result of witnessing some horrific event. @he must still show that the defendant was in breach of his duty of care towards her, and that his negligence caused her recognised psychiatric injuries. !ambrook v @tokes #ros $%&<8) % 4# %-%, .* * mother was awarded damages for (fatal) shock suffered as a result of seeing a serious road accident in which one of her children was involved. There was no fear for her own safety, but she had seen the runaway lorry "with her own unaided senses" and the shock was a direct result. $Dn Alcock the !ouse of 1ords indicated that it would have made no difference if the child had actually been uninjured, so long as / thought he had been.) 4ing v /hillips $%&8F) % *ll +, 7%', .* * ta;i-driver 2 negligently reversed over a child0s tricycle. The child was unhurt, but his mother / in her house some '8 yards away heard a scream and looked out to see the ta;i running over the tricycle. / suffered psychiatric injury and claimed damages. *ffirming the decision of 3cCair : and dismissing her claim, the .ourt of *ppeal said no hypothetical reasonable observer could have foreseen that any injury to / could result from 20s negligent driving in that situation. #oardman v @anderson $%&7-) % 91, %F%', .* * driver 2 negligently backed out of his garage and injured an eight-year-old boy. The boy0s father / heard a scream and ran to the boy0s help, then suffered psychiatric injury. *ffirming the judge0s decision in the father0s favour, rmerod 1: said /0s injury was foreseeable, since 2 knew / was within earshot and would almost certainly come to aid his son. King v Phillips could be distinguished because in that case the driver did not know that the child0s mother was close at hand.

!in" v #erry $%&'() % *ll +, %('-, .* * mother / suffered psychiatric shock on seeing her husband and children seriously injured in a road accident, just across the road from where she was. *ffirming the trial judge0s award of damages for this inter alia, 1ord 2enning 3, said obiter that a line must be drawn between sorrow and grief (for which damages are not recoverable) and psychiatric illness (for which they are). 5reatore; v 5reatore; $<((() - *ll +, '7&, .a"alet : * man . sued for psychiatric illness resulting from his seeing his son 2 involved in a road accident, the accident having allegedly been caused by 20s negligent driving. Dn preliminary proceedings, the judge held that such a claim is e;cluded by the policy considerations that limit liability for psychiatrict injury. To impose a duty of care to secondary parties who might suffer psychiatric injury as a result of a person0s self-inflicted injuries would curtail that person0s right of self-determination and freedom of action, it it would be particularly undesirable for such liability to arise within a family setting. * secondary victim0s psychiatric injury is usually the result of seeing someone killed or badly injured, or fearing that they may have been killed or injured, but this is not legally essential. ther events may also give rise to liability if they are shocking enough that "a person of customary phlegm" in the claimant0s position might foreseeably have suffered psychiatric injury. =ernon v #osley $%&&') % *ll +, 8'', .* /0s small children were being driven by their nanny 2> through 20s negligence the car went into a river and the children were trapped, and / was present while firemen tried unsuccessfully to save the children. / subse?uently suffered mental illness, brought on by the grief and bereavement. 2ismissing 20s appeal from the decision of @edley :, the .ourt of *ppeal said it was not necessary to discount /0s damages by a "grief and distress" factor. nce it was established that / had suffered an injury recognised by the law, caused by 20s breach of a duty of care she owed him, / should recover damages for the injury he sustained. wens v 1iverpool .orporation $%&F6) - *ll +, '<', .* * coffin was overturned when the hearse was struck by a negligently driven tram. ,elatives who had seen the incident or its immediate results claimed damages for psychiatric injuries suffered as a result, but the judge dismissed their case because there had been no injury or apprehension of injury to any human being. *llowing their appeal, the .ourt of *ppeal said the right to recover damages e;tends to every case where injury by reason of mental shock results from the negligent act of the defendant. $This decision was doubted by the !ouse of 1ords in Bourhill v Young, but not directly overruled.) *ttia v #ritish 5as $%&6') F *ll +, -88, .* * woman left gas fitters working in her house, and returned to see smoke pouring from the loft. The fire burned for four hours, causing e;tensive damage, and / claimed for psychiatric injury. Dn interlocutory proceedings, the .ourt of *ppeal agreed in principle that psychiatric injury could be as reasonably foreseeable from seeing ones home destroyed as from seeing injury to a relative, and said / could claim so long as she had suffered psychiatric injury and not just grief, sorrow and distress. #ingham 1: approved the decision in wens above, and said obiter that a scholar who saw his life0s work negligently destroyed might similarly be able to claim. @ion v !ampstead !ealth *uthority (%&&-) 8 3ed 1, %'(, .* * <F-year-old man was badly injured in a road accident, and his father / was at his hospital bedside until he died two weeks later, allegedly because of negligent treatment by the hospital. / claimed damages for his own psychiatric injuries, but the judge struck out his claim and his appeal failedG there was no "sudden awareness" of a horrific event foreseeably giving rise to /0s shock.

Tredget v #e;ley !* (%&&-) 8 3ed 1, %'6, :udge 9hite .. were the parents of a child who was born asphy;iated and died -6 hours later as a result of the hospital0s negligence. They each suffered a pathological grief reaction, and the judge allowed their claim for damages against the hospital even though the death had been gradual rather than sudden. 9alters v Corth 5lamorgan C!@T $<((<) +9.* .iv %'&< * %(-month-old baby was taken to hospital suffering from jaundice, and the hospital negligently under-estimated the seriousness of his condition. =ery early ne;t morning the baby0s mother (who was sleeping in the same room at the hospital) woke to find the baby having a fit. 2octors assured her the child would recover, and he was sent to 1ondon by ambulance, but on arrival he was found to have suffered irreversible brain damage. The following day, the baby0s parents agreed that life support should be withdrawn, and the baby died in its mother0s arms. The mother suffered a "pathological grief reaction", and the judge awarded damages on the basis of a F7-hour-long "shocking event". The .ourt of *ppeal affirmed this decision.

P licy restricti !s The scope of liability for psychiatric injury has been significantly limited by the imposition of various restrictions based on public policy. The courts are an;ious not to open the floodgates too widely, for fear of encouraging a large number of technically valid but unmeritorious claims. * claimant who is not a primary victim must therefore satisfy three criteriaG

@he must have close ties of love and affection with the primary victim. @he must be present at the shocking event itself, or the immediate aftermath. @he must learn of the event by her own unaided senses.

Airst, there must be a sufficiently close relationship of love and affection between the secondary victim . and the person killed or injured to make it reasonably foreseeable that . would suffer psychiatric injury in the circumstances. There was a presumption of such a relationship between spouses, and between parent and child, but others such as siblings, engaged couples or cohabitants might also ?ualify if they could bring evidence to show that it e;isted between them too. @imilarly, it would be open to 2 to bring evidence that the relationship between spouses, say, was not as close as might be e;pected. 3c1oughlin v 0#rien $%&6<) < *ll +, <&6, !1 * mother saw members of her family in hospital shortly after a fatal road accident> one daughter was dead and her husband and two other children were seriously injured. @he suffered psychiatric illness and succeeded in a claim against the negligent driverG her relationship with the primary victims was as close as it could be. *lcock v .hief .onstable of @outh Horkshire $%&&%) - *ll +, &(', !1 .laims were brought by relatives and friends of some of the people killed in a crush at the !illsborough football stadium in @heffield after the police had negligently allowed a crowd to build up too rapidly in one of the stands. !idden : found in favour of a father whose son was killed ( ones v White $%&&%) % *ll +, F8F) and this decision was not appealed. Three other claimants lost respectively a son, a husband and a fiancM> they passed the first test, said the !ouse of 1ords, though they failed on the second andBor the third. Those who lost a brother, a brother-in-law, a nephew and a "particular friend" failed the first test because there was no evidence of an unusually close relationship. Their 1ordships recognised that "close ties of love and affection" might sometimes go beyond husband-wife and parent-child relationships, and 1ords 4eith, *ckner and liver went further. psychiatric injury to a bystander unconnected with the victims would not ordinarily be within

the range of reasonable foreseeability, said 1ord 4eith, but it could not be entirely e;cluded from it if the circumstances of a catastrophe occurring very close to him were sufficiently horrific. 1ord *ckner agreed, and said that if a loaded petrol tanker were to run out of control into a crowded school and burst into flames, he would not rule out a claim by a passer-by so shocked as to suffer psychiatric illness. This re?uirement may be rela;ed if the claimant through no fault of her own was innocently involved in causing the death of (or serious injury to) a third person such as a workmate. 2ooley v .ammell 1aird $%&8%) % 1loyds ,ep <'%, 2onovan : * crane operator was awarded damages for shock after a load fell from his crane (though no fault of his) into a hold where his colleagues were working. 5alt v #ritish ,ail $%&6F) C1: 6'(, Tudor +vans : * train driver / with a pre-e;isting but hitherto unsuspected heart condition was awarded damages for a heart attack resulting from nervous shock suffered after thinking he had hit and killed maintenance workers une;pectedly on the line> he was not at fault, and the incident was caused by the negligence of other workers. ,obertson v Aorth #ridge $%&&8) D,1, <8%, .ourt of @ession (@cotland) 9orkmen // claimed unsuccessfully for psychiatric injury suffered as a result of seeing a colleague blown off the Aorth #ridge to his death. 2ismissing //0s appeal, the 1ord /resident said the relationship between // and the deceased had not been sufficiently close to bring them within the Alcock test, and an employee as such was in no different position from any other bystander. There must be pro;imity in time and spaceG the claimant must be present one the scene of the shocking event. Df / is physically present at the time of the accident and sees or hears it happen that certainly suffices, but so it may do if she comes upon the "immediate aftermath". 3c1oughlin v 0#rien $%&6<) < *ll +, <&6, !1 * mother saw members of her family in hospital about an hour after a fatal road accident, still covered in oil, dirt and blood> one daughter was dead and her husband and two other children were seriously injured. The !ouse said that a person who sees the "immediate aftermath" of the incident is within the scope of compensation for nervous shock (psychiatric illness), and awarded damages accordingly. *lcock v .hief .onstable of @outh Horkshire $%&&%) - *ll +, &(', !1 .laims were brought by relatives and friends of some of the people killed in a crush at the !illsborough football stadium in @heffield. The !ouse of 1ords said identifying a corpse in the mortuary some eight hours after death was too far removed from the shocking events to be within the "immediate aftermath". They declined to define that phrase any more precisely, though 1ord 4eith approved an *ustralian case in which it was said to cover the period during which the victim remained in the state produced by the accident and 1ord *ckner suggested that !c"oughlin was close to the limit of what was acceptable. *ll were agreed, however, that identifying the corpse in the mortuary some eight hours after death was too far removed to be within the "immediate aftermath". The emphasis is on the "sudden impact on the senses" which produces the psychiatric injury. Taylorson v @hieldness /roduce $%&&-) /DL, F<&, .* // were the parents of a %--year-old boy crushed in a road accident. They were informed of the accident shortly after it happened, and caught a glimpse of their son as he was being transferred between hospitals, but were not allowed to see him during treatment. The father saw his son in hospital that evening> the mother saw him ne;t day, and they were with him for the ne;t two days until his life support machine was switched off. The .ourt of *ppeal said // fell outside

the "immediate aftermath" test> they had suffered from grief at their son0s death rather than shock at the traumatic events causing his injuries. *tkinson v @eghal $<((F) +9.* .iv 7&' * woman . searching for her %7-year-old daughter came upon a road accident scene cordoned off by the police. * police officer told . that her daughter had been killed> . then went (with her husband) to the mortuary and hugged her daughter0s battered body, all the time showing signs of an abnormally strong grief reaction. The .ourt of *ppeal agreed that .0s subse?uent illness was caused by the accident, and said the "immediate aftermath" should run to the end of .0s visit to the mortuary. The claimant must have seen or heard the accident or its immediate aftermath at first hand, "by her own unaided senses". * person who saw a news report of the accident or who was told about it by a third party would have no claim> even seeing a live T= broadcast is not enough. !evican v ,uane $%&&%) F *ll +, 78, 3antell : /0s son was killed in a road accident. / was told that he had been in a serious accident, then went to the police station where she was told he had been killed, then went to the mortuary where she identified the body. The judge awarded damages for her psychiatric injury, against the estate of the driver whose negligence had caused the accident. $This decision was seriously doubted, but not directly overruled, in Alcock below.) *lcock v .hief .onstable of @outh Horkshire $%&&%) - *ll +, &(', !1 .laims were brought by various relatives and friends of those killed or injured (or feared killed or injured) at the !illsborough football ground. The .ourt of *ppeal and !ouse of 1ords rejected all the claims brought by those who saw news reports of the accident or who were told about it by a third party> even those who had been watching the live broadcast were not eligible, since the T= pictures did not show the suffering of recognisable individuals. #ut obiter, 1ords *ckner and liver (agreeing with Colan 1: in the court below) thought there might be an e;ception where a small number of identifiable victims were involved. @imultaneous broadcasts of a disaster, said 1ord *ckner, cannot in all cases be ruled out as providing the e?uivalent of the actual sight or hearing of the event or its immediate aftermath. he gave the e;ample of a party of children on a balloon trip shown on live television, where the balloon suddenly burst into flames. Taylor v @omerset !* $%&&F) /DL, <7<, *uld : * man died in hospital as a result of negligent treatment> his wife / was called to the hospital and identified his body within about an hour of his death. !er claim for damages for psychiatric injury failed. Airst, the fact of death had been communicated to her by a third party> second, identifying the body in the hospital mortuary fell outside the "immediate aftermath"> and third, death from a heart attack was not an e;ternal traumatic event of the sort that could foreseeably give rise to psychiatric injury. !unter v #ritish .oal $%&&6) < *ll +, &', .* * truck driver / struck a hydrant on 220s property and caused it to leak> while he was looking for a hose to divert the water the hydrant e;ploded and killed a workmate =. n being told of this, 2 suffered shock and subse?uently a depressive illness. The judge found 22 negligent in failing to ensure ade?uate clearance for the hydrant, but dismissed /0s claim because he was not sufficiently pro;imate to the death. The .ourt of *ppeal (by a majority) upheld this decisionG although a person who innocently causes the death of another has the necessary pro;imity of relationship, / was not close enough in time and space and learned of =0s death at second hand.

#oylan v 4eegan (<((%) unreported

*n 6-year-old girl was badly injured in a road accident> her mother was at the scene and used a mobile phone to contact the father, who thus heard the screams and the ambulance sirens as they occurred. The girl died in her father0s arms two days later, the driver was imprisoned for dangerous driving, and the father claimed inter alia for his own psychiatric injury. :udge Tim 4ing said his claim must failG he was not present in the immediate aftermath, and he had not seen or heard the accident with his own unaided senses. !owever, in Covember <((% the .riminal Dnjuries .ompensation *uthority announced that it would pay compensation up to I<( ((( to close relatives of those killed in the terrorist attack on the 9orld Trade .entre, who suffered psychiatric injury through watching the events of %%@eptember on live television. +vidence of a specific psychiatric illness would still be re?uired, as would "close ties of love and affection", and those who merely saw news footage later would not be eligible, but presence through the medium of live television would be sufficient. #$ gratia payments of this sort cannot establish a binding precedent, of course, but may point the way to a development of the current rules. This is consistent with a recommendation of the 1aw .ommission, who proposed in Aebruary %&&6 (1aw .ommission ,eport Co.<-&) an e;tension to the e;isting law. They recommended keeping the re?uirement for "close ties of love and affection", but e;tending the list of relationships in which such ties are presumed to include siblings and long-term cohabitants. They also proposed abolishing the re?uirement of pro;imity of time and space, and the "own unaided senses" rule, where those close ties can be shown, and removing any re?uirement for a single shocking event to allow (for e;ample) claims by those who suffer psychiatric injury from watching a negligently injured loved one die slowly. Dt remains to be seen whether this report will ever be incorporated in legislation.

Critical evaluati ! Dn an * 1evel e;amination, candidates may be asked to comment on the law governing psychiatric injury (perhaps comparing it with that governing physical injury) and the reforms that might be desirable. This clearly gives room for the e;pression of personal views - lawyers and others disagree as to the problems and the solutions - but the following are among the points that might reasonably be made.
*re the special rules meant to compensate victims or to prote;ct defendantsN 9hat would be the conse?uences if the ordinary rules of negligence were applied to psychiatric injuryN The claimant must prove a recognised psychatric injuryG ordinary grief and distress are not enough. @ome psychatric injuries can be faked (as can some physical injuries), but why should a person who suffers serious an;iety, grief and distress through another0s negligence not be eligible for compensationN @hould the law insist on a sudden shocking event, or should other causes of psychiatric injury be acceptableN The law distinguishes between primary and secondary victims. Ds this distinction necessary, or should all foreseeable victims be treated similarlyN Df the primaryBsecondary distinction is to be maintained, does the law deal properly with professional and volunteer rescuersN Ds the re?uirement of "close ties of love and affection" a reasonable oneN Df so, are the current presumptions reasonable, or should they be drawn more or less widelyN @hould "innocent participants" be e;empt from the need to prove close tiesN Ds the contemporaneity re?uirement appropriateN Df so, should the "immediate aftermath" be more clearly definedN

 @hould the law continue to demand that the claimant witnessed the shocking event at the time through his "own unaided senses"N @hould awareness through live T= (or cameraphone) be acceptableN @tudents might usefully refer to the 1aw .ommission report on 1iability for /sychiatric Dllness (1aw .om <-&, %&&6).