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This chapter is by Maggie Bloom, barrister, Hardwicke Chambers, and is based on a chapter on Psychiatric Negligence which we wrote for Clinical Negligence, 4th edition, ed. Powers, Harris and Barton, London: Tottel 2008.

The issue of when an award of damages will be made in respect of a psychiatric injury arising from a tort remains a developing field of law. This area of law was reviewed in 1998 by the Law Commission,¹ which recommended reform of the law by both statute and common law. However, no legislation has been forthcoming and the courts have developed the law piecemeal, case by case, providing restrictions but applying them flexibly, in the manner of the common law. Policy reasons have often been invoked in support of the limitations imposed.

1        Liability for Psychiatric Illness Law Com No 249.

It is long-established law that when a physical injury is suffered, a degree of associated distress is implied and no separate award is made unless that distress amounts to an identifiable psychological illness. In practice this requirement is met if the illness comes within either the DSM IV¹ or ICD 10² definitions. In Nicholls v Rushton,³ the Court of Appeal held that a claimant involved in a motor accident, who had no physical injury but who suffered a nervous reaction falling short of an identifiable psychiatric condition, could not recover damages. An exception to this principle is provided by s 1A of the Fatal Accidents Act 1976 which provides a fixed sum, presently £11,800.00 for bereavement to a surviving spouse or the parents of an unmarried child who was a minor at the time of death but not to children for the loss of a parent. This figure, effective from 1 January 2008, is due to be reviewed every three years and increased in line with inflation as determined by the retail prices index.

1        Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association.

2        International Classification of Mental and Behavioural Disorders, published by the World Health.

3        (1992) The Times, 19 June.

Damages may be recovered in respect of a psychiatric illness suffered not only as a consequence of a claimant’s own physical injury but the immediate fear of injury, even if a physical injury is not sustained. In certain circumstances damages can also be recovered for psychiatric injury resulting from a physical injury caused to another, or fear of injury caused to another. In cases where the psychiatric injury is suffered as a result of a physical injury to the claimant or the immediate fear of injury to the claimant himself the claimant is referred to as a ‘primary victim’ and will recover, provided a physical injury was reasonably foreseeable as a result of the defendant’s negligence. In cases where the psychiatric injury is sustained as a result of the injury or immediate fear of injury to another, the claimant is referred to as a ‘secondary victim’. Recovery by secondary victims is subject to a number of policy restrictions.

The modern concept of a secondary victim emerged back in the late 1970s and early 1980s. On 19 October 1973 there was a collision between a motor vehicle driven by George McLoughlin, who was 17 years of age, and a lorry, which had been in collision with another lorry. Travelling in the vehicle driven by George were his father Thomas McLoughlin and his two younger sisters. All those travelling were injured and one of George’s sisters was so badly injured that she died almost immediately. At the time of the collision Mrs McLoughlin was at home some two miles away and she was only informed that it had happened about one hour afterwards. Mrs McLoughlin was told that George was probably dying and the whereabouts and condition of her husband and daughters was unknown. She was taken to Addenbrookes hospital in Cambridge where she was told by her son Michael, who had been travelling in another vehicle not involved in the collision, that one of her daughters was dead. Mrs McLoughlin then saw her husband Thomas, George and her other daughter in various states of injury and distress. Mrs McLoughlin developed a condition which at first instance was described as severe shock, organic depression and a change of personality.

Mrs McLoughlin commenced an action against the two lorry drivers and the owners of the lorries. At first instance the court was asked to assume that Mrs McLoughlin’s condition had been caused or contributed to by shock as distinct from grief or sorrow and that she was a person of reasonable fortitude. It was held that the defendants owed no duty of care to Mrs McLoughlin because the possibility of her suffering injury by nervous shock in the circumstances was not foreseeable. On appeal the first instance decision was approved but their Lordships gave differing reasons. Stephenson LJ held that the injury by nervous shock was reasonably foreseeable and the respondents owed Mrs McLoughlin a duty of care, however reasons of policy prevented Mrs McLoughlin recovering. Griffiths LJ held that the injury was readily foreseeable but the respondents owed Mrs McLoughlin no duty of care, as this duty was limited to those on the road nearby. Cumming-Bruce LJ agreed with both judgments.

When the case came before the House of Lords in February 1982, (McLoughlin v O’Brian¹) Mrs McLoughlin was successful. Wilberforce LJ was impressed by the arguments employed by the Court of Appeal, which in his view rested on the common principle that,

‘the boundaries of a man’s responsibility for acts of negligence have to be fixed as a matter of policy.’

Wilberforce LJ provided five circumstances in which it was held that a claim for psychiatric injury could succeed:

‘1         While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for ‘nervous shock’ caused by negligence can be made without the necessity orshowing direct impact or fear of immediate personal injuries for oneself ….

2          A plaintiff may recover damages for ‘nervous shock’ brought on by injury not caused to him- or herself but to a near relative, or by the fear of such injury….

3          Subject to the next paragraph, there is no English case in which a plain­tiff has been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff ….

4          An exception from, or I would prefer to call it an extension of, the latter case, has been made where the plaintiff does not see or hear the incident but comes upon its immediate aftermath ….

5          A remedy on account of nervous shock has been given to a man who came upon a serious accident involving numerous people immediately thereafter and acted as a rescuer of those involved ….’

1        [1983] 1 AC 410.

178       Bridge LJ considered that it was readily foreseeable that a significant number of mothers who were exposed to such an experience might break down under the shock of the event and suffer illness. However, he limited the class of secondary victims by holding that they should have the following characteristics:

(1)        a close tie of love and affection with the victim;

(2)        be physically and temporally proximate to the acci­dent; and

(3)        perceive the accident directly.

Essentially the criteria define reasonable foreseeability. It is inevitable that the closer the tie of love and affection and the closer the perception of the accident, the more likely it is that a victim will sustain a psychiatric injury. The criteria must be applied to the facts and circumstances of each case. Nevertheless, Mrs McLoughlin succeeded, even though she was never at the scene of the accident, was told about it by a third party and only witnessed the aftermath in the hospital, albeit that what she witnessed was described by their Lordships as ‘an horrific event’.

The case of Alcock v The Chief Constable of South Yorkshire Police¹ arose out of the appeal to the House of Lords by victims of the Hillsborough Stadium disaster in 1989. Too many people were admitted to the West Stand which collapsed crushing those below. Ninety-five people were killed and over four hundred were physically injured. Scenes from the ground were broadcast live on television. The Chief Constable admitted liability in negligence in respect of the deaths and physical injuries, as the police were responsible for crowd control. However, 16 actions were brought against him by claimants who suffered psychiatric injury alone. None of the claimants was present in the area where the disaster occurred, although four were elsewhere at the ground. All the claimants had family ties other than one who was a fiancé and in all but one case, in which the relative was in fact uninjured, all the people with whom the claimants had connections at the ground were killed or physically injured.

1        [1992] 1 AC 310.

At first instance in 1990 the judgment of Hidden J was concerned only with the question of whether the defendant owed a duty of care in relation to nervous shock to any of the claimants, assuming that causation was established or leaving it if necessary to be dealt with in further proceedings. Hidden J found for ten of the claimants and against the other six. The defendant appealed nine out of the ten successful claimants and the six unsuccessful claimants cross appealed. The Court of Appeal gave judgment for the defendant in all its appeals and rejected all the claimants’ appeals. Only ten claimants appealed to the House of Lords, who considered the matter in 1991.

Lord Oliver held that the concept of a primary victim should apply to those cases ‘in which the claimant was involved, either mediately or immediately, as a participant’. He described a secondary victim as one who ‘was no more than the passive and unwilling witness of injury caused to others.’ In the case of such victims, the starting point was whether psychiatric illness to the claimant was a reasonably foreseeable consequence of the defendant’s negligence. Alcock established that to succeed in proving reasonable foreseeability a secondary victim must show:

(1)        a close tie of love and affection with the person killed, injured or imperilled;

(2)        that he was close to the incident in time and space;

(3)        that he directly perceived the incident rather than, for example, hearing about it from a third person; and

(4)        the illness was induced by a shock.

The House of Lords interpreted the criteria required by secondary victims in a more restrictive way. With regard to the issue of close ties of affection, Lord Keith said,

‘I think it sufficient that reasonable foreseeability be the guide. ... The kinds of relationships which may involve close ties of love and affection are numerous.’

Lord Ackner suggested that in the case of a parent or spouse there was a rebuttable presumption that the tie was such that,

‘the defendant ought reasonably to contemplate that they may be so closely and directly affected by his conduct as to suffer shock resulting in psychiatric illness.’

However in the case of more remote relatives and friends,

‘it could reasonably be expected that they would not suffer illness from the shock and hence they would have to prove that their relationship was so close as to be comparable to that of a parental or spousal relationship.’

This could be construed as a more flexible approach. However, their Lordships denied recovery to a claimant who had witnessed the accident in which his two brothers were killed, on the ground that he had not produced evidence of a close tie of love and affection with his brothers and in the case of siblings no presumption was to be made. The Law Commission recommended legislation to extend the category of relationships covered by the presumption to include siblings and cohabitants but this has not occurred.

Lord Ackner and Lord Oliver s