The law relating to negligently inflicted psychiatric damage, or "nervous shock" as Courtspeak has dubbed it, is one of the most recent, evolving and controversial areas of the law of torts.

The Hillsborough litigation has, for the moment (but probably only for the moment, as the spectre of a private prosecution by police officers beckons) stumbled to its inconclusive halt. It is submitted that, in this area of the law, a legacy has been left of vagueness, illogicallity and injustice. The area is therefore ripe for a special study.

This paper will aim a trident of criticisms at the current law:

 

1. The current principles are so vague as to make predicting the outcome of cases very difficult. This has repercussions for practitioners, claimants, and the stature of the law alike.

 

2. The current position is illogical, non-sensical and above all arbitrary. Not only does this lead to injustice, but is indefensible as a rational legal structure.

 

3. The situation is too serious to be dealt with by the common law. Legislation is the minimum required, and it will further be submitted that it is possible that our traditional torts system is unsuitable for, and unable to cope with, the exigencies of this complicated and perpetually developing area of law.

Naturally, some areas will be outside the scope of this paper. For example, he treatment given to psychiatric damage cases in other Common Law jurisdictions will only be given a cursory inspection, for that is the subject of a paper in its own right.

Similarly, only an insight will be given to the potentially vast categories of potential claimants. It will be suggested that these could stretch into the horizon, and that care should therefore be used. However, this is also an area that would deserve a paper to itself.

The main controversies surround the people who have been called "secondary victims", I.e. those not directly involved in the accident that caused the injuries to the "primary" victims, but those who saw the effects of it but were nonetheless psychiatrically damaged. It is upon these people that this project will largely concentrate, as this is the area where most of the discussion lies.

In order to demonstrate these criticisms, this paper will navigate the following course. Firstly, a brief look at what constitutes psychiatric injury, secondly, an assessment of the Common Law development up to the Hillsborough litigation, highlighting the inconsistencies, failings and reasoning behind the decisions as well as the triumphs. An ongoing feature will be the increasing judicial acceptance of psychiatric injury throughout the last one hundred years until the current stalling point, in the last year of the twentieth century. The Hillsborough litigation will be considered as a block, for it is on these cases that the current principles rest, and around which the controversy hangs.

A detailed look at the Law Commission’s Report No.249 and a brief look at other jurisdictions and the problems with expansion will follow, before an assessment of torts’ ability to cope and a final drawing together into the above three-pronged conclusion.

However, before we enter the darkened jungle of contorted caselaw, it is necessary to explore, briefly, exactly what constitutes "nervous shock" or, as it is much better called: "psychiatric injury".

The preliminary point that needs to be made is that the mental condition we are dealing with here has been known under a variety of terminological guises. They are all, however, variants on the medical condition of post traumatic stress disorder (PTSD). Whilst the courts have preferred "nervous shock", other names include: "shell shock", "traumatic necrosis", " psychiatric damage", "combat fatigue", "transient situation disturbance", "stress breakdown", to name but a few. The important thing to remember, however, is that these are all populist names for the same mental condition; its relevance to our legal situation being when PTSD has been negligently caused by the actions of another.

It is submitted here that "nervous shock", as PTSD is known by the courts, is an inappropriate term. This is for two reasons. Firstly, it implies that those suffering are in some way of a more "nervous" disposition, and secondly, that psychiatric illness only occurs after a sudden, shocking event. Neither is true.

So, although the courts have a tendency to require a shocking event, which arguably justifies the use of the term, this is in itself a criticism of the law and so this paper will henceforward refer to "psychiatric injury", being more accurate and less prejudicial.

Psychiatric injury after shocking events, whilst only recently recognised with the improvement in medicine and psychiatry, is not a new phenomenon. Indeed, some would claim it has been recognised since the sixth century BC, in one form or another.

However, it is only since the Vietnam War that great strides have been made in the recognition and treatment of PTSD and psychiatric injury in general. Naturally, "shell shock" PTSD cases have been the catalyst but this has spilled over into a greater understanding in the civilian arena too.

The criteria for PTSD are defined in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM-IV). For our purpose, a detailed examination is not necessary, for the courts do not usually have to decide whether someone has been psychiatrically injured: that is properly a pre-trial issue. They just have to decide whether the defendant is, or should be, liable.

However, a brief description of the requirements would be useful.

DSM-IV has relaxed the requirements of DSM-III: it is now recognised that PTSD can result from many shocking experiences, rather than purely combat related.

The person must have experienced a traumatic event, with the symptoms of PTSD, which include distressing dreams, hallucinations, avoidance of stimuli associated with the event, hypervigilance, disturbance in social relations, and so on, which must last for more than a month.

So, it can be seen that the state of knowledge on psychiatric injury has reached a relatively advanced, though always expanding, stage.

Furthermore, it is now accepted as a principle of recovery (albeit in restricted circumstances,) by the courts. However, this was not always the case, and it is to this, the process of acceptance and an analysis of the past caselaw that we now turn.

This chapter will briefly trace the development of the law. Naturally, it is neither possible nor necessary to consider all the cases, but it is a good idea to set the scene for later analysis.

It is only fairly recently that psychiatric injury has been accepted as a cause for claim in law. Indeed, the view is still prevalent in some quarters (and regrettably, in some recent cases, as shall be shown shortly,) that psychiatric injury is in some way "not as serious" as physical, or that the sufferer should "pull himself together" and accept the stresses that life throws at him. This is not to confuse the courts’ justifiable and proper distinction between non-recovery for mere grief and sorrow, with recovery for psychiatric injury; merely to point out that in some instances this old-fashioned view still prevails.

In any case, one hundred years ago, this view was certainly prevalent. The classic example of this early attitude is Victoria Railway Commissioners v Coultas (1888), where psychiatric injury which was not the product of direct physical injury to the plaintiff was unrecoverable: not seen as something the law would normally provide cover for. This case would almost certainly be decided differently today (indeed it was questioned within a short space of time), but it shows the prevailing, sceptical attitude to mental injury. This view was current not only in judicial circles, but in society in general: it remained a popular way of thinking, until the twentieth century, including through the First World War, and arguably even today.

The first case in England to show a change of attitude was Dulieu v White and Sons (1901). Here, a pregnant barmaid suffered shock and a premature birth after a runaway cart crashed through the pub in which she was working. Although she suffered no physical harm, she did fear for her own safety and was allowed to recover on this basis. However, it was explained that recovery was limited to these cases: recovery would not be allowed for fear of the safety of another.

After the seismic change in societal attitudes brought about by World War One, all this was to change.

The realisation of the overly restrictive view taken came about in Hambrook v Stokes Bros. (1925), where a mother saw a lorry careering around a corner towards where she had just left her children. Not being in any danger herself, she was allowed to recover for her psychiatric damage after fearing for another’s safety: that of her children. However, a new requirement was imposed, and it is here that we start to see the relevance eof the past caselaw to the present law, and to this paper. The requirement was that the victim should perceive the incident with his or her own unaided senses. It is respectfully submitted that this was a misguided restriction: the plaintiff in Hambrook did not see anything except a lorry careering, out of control, down a road. It was her mind that jumped to, or even imagined, a catastrophic conclusion. In fact, nothing had happened.

The unwelcome effects of following this restriction were shown in Alcock v Chief Constable for South Yorkshire(1991). This will be examined properly in the next chapter, so only this point will be briefly considered here. It was held that plaintiffs observing events as they unfolded on television, had not perceived the events with their own unaided senses and so could not recover. The Court did not rule out television as sufficing in any case, but did on the facts. This is surely an artificial distinction: the court must have felt that it would be unrealistic to deny the suitability of television entirely, but still wished to set the standard so high that the likelihood of it being met would be very low. For example, equivalent to a child-carrying balloon bursting into flames, as was given. Exactly what experience the court thought that the relatives in Alcock went through is unclear. Again, it is respectfully submitted that this too was mistaken: although not perceiving the suffering of recognisable individuals, they were seeing something simultaneously, knowing that a loved one was involved somewhere. This is, after all, more than the plaintiff in Hambrook saw, and in any case, not knowing, but merely suspecting on good evidence (as in Alcock,) is often far worse than the certainty.

But this is to usurp the purpose of the next chapter.

The next stop along our tortious timeline finds us in the stern wartime atmosphere of Bourhill v Young (1943). This too marks a movement away from the Dulieu test and adopts one of reasonable foreseeability, a test that effectively still continues today. Here, the plaintiff only heard the accident and saw very little of the aftermath: she could not recover because she had been so far away from the accident that psychiatric injury was unforeseeable. It is crucial to recognise this: fear for her own safety was not necessary, just that her psychiatric injury should be foreseeable. She was, in modern terminology, a bystander. It has been suggested that this case was decided under wartime conditions: that everyone should show a greater mental toughness under those extreme situations. How could troops from the front and bombed-out families reconcile themselves with a woman who had recovered damages after merely hearing an accident? Although there may be some truth in these suggestions, it is submitted that this case was correctly decided. Whilst the courts’ obsession with "floodgates" will be criticised shortly, it is conceded that the line must be drawn somewhere, and the rather bizarre facts of this case, with the plaintiff seeing very little and having no personal tie with those involved, seems a sensible place to draw the line. This paper will argue that the existence of a psychiatric illness should be the principal and foremost consideration for the court, but realise that it is unfair to the defendant to expect him to foresee every off-the-wall situation.

The next case of note is that of Chadwick v British Railways Board (1967), which introduced the concept of rescuers as an exception to the bystander rule. This will be of great import in the next chapter, when we will consider the Hillsborough saga. For now, however, the following will suffice. Mr. Chadwick lived near to the site of a severe train crash: he attended the crash and helped with the rescue work. Due to the psychiatric damage he sustained doing so, he was able to recover damages. This welcome, and entirely justifiable exception was made on the grounds of public policy: that rescuers should be encouraged, not dissuaded, from helping. But the courts have not always followed this laudable objective.

The final case we shall inspect before moving on to the all-important 1990’s developments is the crucial case of McLoughlin v O’Brien (1983) which, in the true spirit of 1980’s torts, represented a great expansion of the modern law.

Before this case, proximity and the requirements for a duty of care could be said to be a sufficiently close relationship between the plaintiff and person in danger, and witnessing the accident with their own unaided senses. The outcome of this case left great uncertainty, which still has not been satisfactorily (that being the operative word,) resolved.

In this case, Mrs. McLoughlin was miles away from the accident in which her family were involved and was informed an hour later. She then went to the hospital where she saw her family in a somewhat untidy state. It was what she saw whilst there that caused her psychiatric injury. Whilst the House of Lords was unanimous that the claim should succeed, there was a difference of opinion as to the appropriate test for liability.

Lords Bridge and Scarman wanted a test based on foreseeability alone, "untrammelled by spatial, physical or temporal limits". They felt that although these should be considered they should not be legally binding, as they would, by their very nature, be largely arbitrary in their application. Crucially, they rejected policy as inappropriate and dismissed the old favourite "floodgates" as not being a factor worth considering.

Lords Wilberforce and Edmund-Davies saw policy as being highly relevant and formulated the now well known "aftermath" test. Indeed, the three requirements which were put forward were based upon policy. These were: the relationship between the plaintiff and the sufferer of the accident, to be scrutinised on the facts of each case. Secondly, proximity in terms of time (seeing it as it happened or coming across the immediate aftermath,), and space (being physically close to the scene.). Thirdly, the means by which the injury was caused should be observed by means of the person’s own unaided senses: third party communication would not suffice.

Whilst this decision has perforce created a great deal of uncertainty; indeed, one of the main issues in Alcock was the status of McLoughlin (was the test forseeability alone or was policy relevant?), it seems that the Wilberforce test has prevailed.

It is respectfully submitted that this is to be regretted. Whilst a full consideration of these issues will follow in the next chapter, once the changes wrought by Hillsborough have been narrated, the Wilberforce test has not been a happy event for the law, for it is still the basis of the law after Alcock and White.

The prevailing tests are, as Lords Bridge and Scarman pointed out, largely policy-driven and arbitrary. They are fuelled by fears of "floodgates". It is submitted, however, that these fears are greatly exaggerated, as the numbers of potential claimants are not as vast as they like to suppose, especially if a sensible foreseeability restriction is employed (a la Bourhill). Furthermore, with medical knowledge at its relatively advanced stage, fraudulent claims can surely be eradicated long before trial.

It is submitted, with respect, that the real motivation, as Jones suggests, is a hidden philosophy of psychiatric damage being in some way less worthy of compensation than physical, and that "policy" factors are merely a cover. This is clearly indefensible.

Surely, the only relevant questions should be: is there a recognisable psychiatric illness, and was the injury reasonably foreseeable?

However, once again this is to pre-empt the analysis of the next chapter; it is to the modern law, and its problems, with our background safely established, that we now move.

Now we come to the centre of the seething storm, for the 1990’s have not proved to be a post-McLoughlin settlement of the law, but a further convulsion leading to ever-tighter legal convulsions.

In this dusky legal valley we meet four giants, cases whose impact has been so great that they must be looked at individually. They are: Alcock v Chief Constable of South Yorkshire, Page v Smith, Frost v Chief Constable of South Yorkshire and White v Chief Constable of South Yorkshire. This decade has been dominated by these cases, which, apart from Page, take the umbrella term of the "Hillsborough litigation". There are also, smaller, satellite decisions, which will need to be looked at in the next chapter.

Our first port of call is Alcock v Chief Constable of South Yorkshire. It should perhaps be noted at this point that Alcock is still the leading case in this area. Subsequent cases have essentially followed, or at most, modified it, but it still is the formulation of the present law. For this reason it must be looked at in some detail. Alcock was an action by the relatives of some of the people killed in the Hillsborough football stadium disaster, claiming psychiatric injury as a result of the negligence of police officers in mismanaging overcrowded pens. The case was effectively a test case, for the police admitted their negligence and the case was taken on matters of law alone. There were sixteen relatives bringing the case (one of which was actually a fiancée, but none were spouse or parents, which are as near to an accepted category as this area of the law allows,). All were refused damages for negligently inflicted psychiatric injury.

It should be noted that it is here that we first come across the problematic primary/secondary victim distinction, where the former are personally involved, the latter where someone else is involved. Lord Oliver saw primary victims, probably rightly, as being fairly straightforward, and it is over secondary victims that the complexity lies. It is with these that this case, indeed most of those here, are concerned.

The House of Lords laid down three requirements in order for this class of claimant to succeed; these will be examined in turn now.

Firstly, a sufficiently close tie of love and affection, meaning that the injury was "reasonably foreseeable". What a sufficiently close tie of love and affection is very much a moot point, which has been left open. Husband and wife, parent and child relationships were presumed, but more remote relationships required careful scrutiny.

There are a number of criticisms to be made here. Firstly, the assumption that a husband and wife, for example, automatically have a close tie of love and affection is somewhat dubious. Many a long-married couple feel anything but love and affection for each other, whilst a "courting couple", still in the fresh bloom of their passionate affection, would be denied any remedy by the courts. Secondly, the House of Lords has been somewhat disingenuous in claiming that the categories have been left open: the standard of affection required has been rather high: a fiancée failed in this case.

Thirdly, the non-presumptive cases are rebuttable, and the plaintiff must produce evidence of his or her love and affection. This produces the rather sordid spectacle of a plaintiff coming bleary eyed and cap in hand to the bench, asserting their affection, only to return to the box to suffer the incisive cross-examination of steely-nerved counsel, as to the reality of that love and affection. Is this the sort of scene that should be enacted in our courtrooms? Brothers, lovers, sisters and others being questioned as the quality of their affection? This is especially worrying when one considers that all must first have passed the threshold test of a "recognised psychiatric illness". Indeed, one cannot help but agree with Teff, when he comments on the courts eagerness to "cling to categorical approaches of a distinctively restrictive kind", an artificial categorisation that will only lead to sterile debate upon what a "normal" familial relationship is.

One can also wonder at the sense of this odd categorisation when the page is turned to find that bystanders are not ruled out completely either, the example of a petrol tanker being seen careering into a school being given here. Again, however, the House of Lords has not acted with complete consistency, as we shall see.It is submitted that, as Nasir points out, the issue of the closeness of a relationship is a very arbitrary line. He gives the example of Mr. Harrison, who lost two brothers in the disaster: it was held that there was not enough evidence of a close relationship. Indeed, all the plaintiffs were relatives of the deceased, and all failed. If Mr. Harrison could not recover, it is very difficult to see how anyone outside a parent/spouse relationship could, despite the House of Lords' protestations to the contrary. Indeed, as Nasir claims, it would be better to have a closed list of relationship, than this uncertainty masking an extremely restrictive situation. This is hard to reconcile (especially for the reasonable man,) with a case like Attiah v British Gas, where recovery was allowed for seeing destruction of property. If for property, which is not disputed, why not people?

It is also worth considering Hedley's criticism of the precise foreseeability that the Chief Constable is supposed to consider if plaintiffs are to succeed. The House of Lords claimed that the plaintiff's injuries were unforeseeable due to the relationships between the deceased and the families being, effectively, too remote. This entails an assumption that, for any plaintiff to succeed, the Chief Constable must engage in "morbid musing" in which he considers in advance, not only what will happen if he were to fail in his task, but to whom and how. It is submitted that this rather complicated explanation of the courts' reasoning is correct: the precise foreseeability required is not only too strict, but paradoxically very vague as well. Indeed, as Hedley claims the approach taken is a vague, perversion of the "neighbour principle". Again, one suspects that the dark hand of policy had been at work here, in the guise of foreseeability. We shall come to this shortly.

A duty was ostensibly owed to rescuers too, a duty that it is submitted should be wholeheartedly applauded, but this alley too has had its twists and turns, to find a black end awaiting it. Again, for this we shall have to wait.

The second requirement the House of Lords laid down is that of proximity in terms of time and space. Sight and sound of the event will still suffice, as explained in the last chapter, as will coming across the immediate aftermath, as long as the plaintiff was there in person. Unhelpfully, the "immediate aftermath" was not defined (obviously leading to interminable problems,) although Lord Keith vaguely relied upon the Australian decision of Jaensch v Coffey, to the effect that it lasted for as long as the victim remained in the state produced by the accident. Identifying a corpse, eight hours later, was not held to be sufficient. Yet this was a close relative, suffering a legitimate mental disorder, due to negligent behaviour. Why should the difference of a few hours make the difference between the Alcock plaintiffs and the likes of Mrs. McLoughlin? Admittedly, what Mrs. McLoughlin saw was her family in a very messy state, so different from when she last saw them. Yet, the Alcock plaintiffs saw their loved ones dead and that is a sufficiently shocking experience for the most stout-hearted person, and different enough from when they last saw them to disturb all but the most morbid imaginations. Clearly the House of Lords did not think so.

There is also another example of arbitrary line drawing here. As Teff and Jones point out, "invidious distinctions are inevitable when the immediate aftermath is treated in isolation, as a crude notion of temporal proximity". Whether or not a plaintiff falls within the recoverable bracket depends upon a race between the plaintiff and the ambulance. Will the plaintiff be quick enough to see the pre-clean-up "aftermath"? Yet the psychiatric result is the same. Surely this "arbitrary circumstance" is not a sensible basis upon which to rest the law. Chance plays her hand in another area way in this area; as Nasir points out: the body of a deceased person ids not usually available to be seen immediately after an accident, whereas an injured person can be seen in a hospital (a la Mrs. McLoughlin) would be. But the distinction between these two arbitrary situations, entirely outside the plaintiff's control, decides whether or not a claim will be successful.

Proximity also lead son to the third requirement that was laid down: that the damage-causing event must be perceived with the plaintiff's own unaided senses. McLoughlin had left the question of television coverage open, but now the House of Lords in Alcock closed it. It is submitted that this was a fateful error. It was held that seeing, on a live television broadcast, a calamity in which your loved one is certainly somewhere involved, followed by the dawning certainty that they were seriously hurt or killed, was not equivalent to being within sight or sound of the event or its aftermath. Apparently, it was not a sufficiently "shocking" event. This is surely a non-sensical distinction. Admittedly the suffering of recognisable individuals was not shown, and so the plaintiffs were "only" affected by the uncertainty of wondering about their loved one, and then seeing them dead, some time later. But surely this is to gravely misunderstand the workings of the human mind? The uncertainty of not knowing is often far worse than knowing for certain, for then the mind can deal with grief, to move on, to turn away from the horrific event. An ongoing uncertainty, going on for hours, especially when encouraged by disturbing images prevents this from happening. The mind sinks into a rut, the morbid thoughts congeal and suck in the sufferer's consciousness. It is this that leads to mental illness, rather, in many cases, than the event itself. Once again, not only does law appear to be "marching with medicine, but in the rear and limping a little", but the courts appear to ignore even common sense, everyday facts that our own experience tells us. The courts would do well to study DSM-IV, or at least counsel to point out, the medicine behind this complicated area and so gain a good knowledge where they are currently so sorely lacking.

There is also the sneaking suspicion of a distrust of television as a "new-fangled" technological device that should be viewed with a wary eye. Yet this is not a sensible way of proceeding. A live, simultaneous broadcast is exactly the same as being there oneself, only with the added disadvantage of an increased sense of helplessness (a common cause of PTSD) due to being so close in sight and mind, but so far in body and ability to help. Indeed, there is the possibility that watching on television is worse, as cameras can scan around and show many distressing images: if you are there you can only see what is in front of you, and are in any case too worried about yourself to think of anyone else. It is submitted that television does not have the distancing effect that the House of Lords so clearly desired, when you know that your loved one is part of the seething mass of distressed humanity that you see writhing on your screen. Further the House of Lords held that watching an event on television was not "shocking" enough, as it was equivalent to being told of the event by a third person. As explained above, it is submitted that this is wrong. Not only was the event "shocking", but as Jones points out, it goes against medical evidence, something to which, as noted, the courts pay too little attention. He points to Sion v Hampstead Health Authority, a gradual deterioration followed by death was held sufficient to recover. It is submitted that this was quite correct. Furthermore, as Teff writes, the immediate and shocking event, which the courts insist on stressing, rarely results in psychiatric injury: primary responses are usually transitory. As both sudden shocks and cumulative causes can cause psychiatric injury, it is undesirable to draw a line between them. The existence of a recognisable psychiatric illness should be the test. As Teff quite rightly continues, it is the closeness of the relationship that counts: "it is … artificial to focus on precisely how the shock is experienced in isolation from the actual relationship" which is, as we have noted, the deciding factor.

However, the House of Lords did not entirely rule out television as sufficing. Once again, they gave the rather extreme, saccharine example of a balloon, packed full of (presumably adorable, smiling) children, watched by their (presumably adoring, proud) parents, being televised and suddenly bursting into flames and plummeting to the ground. True, this probably would, and should suffice to make television a "shocking" enough medium, but should it really take so extreme an event to do so? It is notable that both this example and the petrol tanker/school one involve children. Are we to assume that children must be involved for television coverage to suffice?. Surely not. However, it is submitted that there is no real difference between the House of Lords' example and that which occurred. The event was horrific. The sufferers were relatives. Psychiatric injury was sustained. What more can be asked?

The main issue in Alcock was the standing of McLoughlin v O'Brian. As related in the last chapter, Lords Bridge and Scarman wanted a test based on reasonable foreseeability alone, whilst Wilberforce and Edmund-Davies, embracing "policy" wholeheartedly, formulated the notorious and unreliable "aftermath" test: riddled through with vagueness. As has been shown above, in Alcock, the second, policy-driven view clearly prevailed. This is clearly apparent form the number of additional restrictions hedged around recovery in this case.

However, it is argued that the underlying "policy" considerations are the real driving force behind this judgement. There is nothing else that can explain the illogicallities criticised above.

At the very least, it would be helpful if the courts were to be more open about the fact that they are using policy to drive their limitations, instead admirable, but futile mental gymnastics in which the courts seem to delight. It is not expressly denied, but its tentacles stretch further than is admitted, grasping into the regions of foreseeability and floodgates.

It is submitted that the fear of "virtually limitless liability" is a misplaced one. There are great disincentives to litigation, such as the great cost, delay and stress involved, far greater than any complex, intellectual and artificial ones that the courts can invent.

Furthermore, with regard to television as being the key to the floodgates, the vast majority of television viewers will not have any kind of reaction at all, and of those who have a loved one involved, only those with a greater susceptibility to mental injury will succumb. It must be remembered that we have a threshold test of a recognisable psychiatric injury, which will debar vast swathes of the massed legions of litigants from which the courts recoil.

It is further submitted that this aspect of "policy" is really old-fashioned views as to mental illness masquerading under a respectable banner. That is that psychological injury is in some way less serious, or less worth compensating than the physical. Let us take the following example: a trainload of children (sure to touch their Lordship's hearts,) have been involved in a terrible accident. Hundreds are maimed physically, in a way that will ruin the rest of their lives. Would they be denied compensation on grounds of "floodgates"? Would their Lordships not baulk at such a suggestion? Would the nation not rise up in uproar? Surely. But this is precisely what has happened to the plaintiffs in Alcock. Lots of people have been denied redress for their horrific, life-altering experiences, ostensibly because, in a Hardian phrase, "they are too many". But is this the real reason, or does a distrust of psychiatric medicine lie beneath the surface?

In any case, it is respectfully submitted that Lord Oliver's claim that to extend the law to cover these plaintiffs is something for which there is "no pressing policy need and no logical stopping point" is both callous and incorrect. The requirements of a recognisable psychiatric illness, reasonable foreseeability and a tie of love and affection would, for example, provide a perfectly manageable stopping point. It is further pointed out that other Commonwealth jurisdictions have found perfectly adequate ways of dealing with these problems.

One should also remember that some judges, most notably Nolan LJ in Alcock (in the Court of Appeal; how ironic that this admission should be in this, of all cases,) have admitted that floodgates is an unfounded fear, something that was also shown by medical evidence in Hevican and Ravenscroft.

To conclude on this case, one cannot help but feel that for all the empty explanations of the House of Lords in Alcock, proximity, floodgates and all other names are just convenient labels which tend to "conceal and prevent discussion of the policy issues which are determinative". Clearly, this case, the foundation of the modern law of psychiatric injury, knocks hollow and is structurally condemned by the lack of principle upon which it is founded.

The next of the four giants to which we turn is Page v Smith. In this case, the plaintiff had suffered from ME (myalgic encephalomyelitis) for about twenty years, but was in remission at the time of his car accident with the defendant. The crash, caused by the defendant's negligence, caused a fresh onset of ME, which was likely to prevent him working again. He was not physically injured.

It was held, by a majority of three to two in the House of Lords, that the plaintiff could recover for his psychiatric injury. In applying the principle that the defendant has to take the victim as he finds him, the House of Lords held that it was only necessary for some kind of personal injury to be reasonably foreseeable as a result of the accident. Crucially, it was not necessary to prove that psychiatric injury was reasonably foreseeable.

There are two important points arising from this case. Firstly, the distinction between primary and secondary victims, in other words, between those who sustained psychiatric injury after fearing for their own safety, and those who suffered similarly after fearing for the safety of another. As Lord Lloyd pointed out, the court draws a distinct line between the two: secondary victims are the ones for whom, "to limit the number of potential claimants", there are "certain control mechanisms". For primary victims, "these control mechanisms have no place.) It should be noticed that this case was one of primary victims, as opposed to Alcock, which was one of secondary.

The second important point is the highly laudable direction that psychiatric and physical harm should not be regarded as different types of harm. Lord Lloyd said:

It is respectfully submitted that this is a very enlightened approach, and one that should be encountered more often in this area of the law. Psychiatric injury is as "real" and serious as physical; it is heartening to see such a modern approach to this difficult area. If this case were to leave just one aspect as a legacy, one would hope that it would be this progressive statement. However, the case needs to be more carefully examined: there are a number of criticisms that can be made.

Firstly, as Pickford points out, Page v Smith is a case for pure psychiatric injury, but this has unfortunately been interpreted by the courts as "merely nervous shock" or "mere psychiatric injury". Pickford concludes that Page v Smith is a case of "mere psychiatric injury" only where it means that it is that kind of injury alone. She concludes that we should drop the use of the word "mere" altogether as it is not only misleading but is unnecessary. It is submitted that this is correct to a certain point. It is unfortunate that the courts have adopted this terminology, and indeed it probably does reveal an underlying view of psychiatric injury as more minor. However, Page v Smith is, by enlarge, an encouraging case: far more clearly than this rather subtle, semantic point. It was stressed that psychiatric injury is to be seen as indistinct from physical: both are to be regarded as "personal injury". Pickford makes the point that "they are both examples of personal injury and this is what we must concentrate on". No argument is made with this point, for it is also suggested that Page v Smith, alone among the "four giants", has expressed as move towards this view.

On the other hand, it is slightly disconcerting that the House of Lords had difficulty with the lack of physical injury, but then this was an unprecedented issue that had to be dealt with in some way. In any case, it should be remembered that ME was recognised at first instance as a psychiatric condition. This is encouraging; bearing in mind that not all of the medical profession recognises it as such. One can at least find encouraging here that the younger judicial hierarchies are developing an open-minded and progressive view on this all-too-often-misrepresented issue. Hopefully, the case brings the law "into line with modern medical thinking".

It could also be argued that the case clarified the law, for Lord Lloyd set down five propositions. Included in this was his statement that primary victims should not be governed by the control mechanisms but that the secondary victims should. There are two criticisms to be made here. Firstly, this shows that psychiatric injury is not fully equated with physical, but that once again, "floodgates" is the phantom looming over the judge's shoulder: the idea being that there has to be some way of controlling the number of plaintiffs. Secondary victims, in the view of the courts, are the people to be the tool. It is once again submitted, as pointed out during our consideration of Alcock, that sheer numbers would not be a reason for restricting the number of plaintiffs with physical injuries.

The second criticism, as Trindade points out, is that this statement not only confuses the issue but paradoxically, may increase the number of claimants. This, it is claimed, is because it is not made clear who a "primary" victim is, and that consequently, those who would normally fit in the secondary bracket will now try to squeeze in the primary.

It therefore "widens the area of danger". For example, in a bus accident, could unhurt people at the back, perhaps in danger from flying debris, be seen as primary victims, because of the debris, or secondary, because of the injuries seen to the people at the front?

It is however, submitted that, not being a devotee of the "floodgates" argument, that this is missing the point. The existing control mechanisms should not be in place at all (although it is not suggested that there should not be any, just that the present ones are unjustifiable,). Therefore, surely the criticisms made by the likes of Trindade and Stapleton say more about the Alcock control mechanisms than they do about this case.

Teff too raises criticism of this case, calling it a "classic case of misplaced line-drawing, driven by the fear of proliferating claims". Secondly, and quite justifiably, he points to the "endorsement of the pejorative label 'secondary victim'". It is submitted that his point that the lines drawn will lead to more anomalies in rule-making, paradoxically increasing the number of claims, the same point as Trindade, is correct, but that as before, the increased status of psychiatric injury that this case confers ids to be welcomed. But again, he points up the paradox that whilst the case aims to treat psychiatric injury on a par with the physical, the "secondary" label "reinforces the belief that harm suffered through passively experienced injury inflicted on other is in some sense peripheral, and perhaps less deserving of compensation than 'primary' victims". Regrettably, this is probably true, but again it is submitted that that real fault lies further back, with Alcock. We shall see more of the problems caused by the primary/secondary divide shortly.

Such has been the impact of Page v Smith. It is now time to look at the final pair of giants, who confront us together , as different versions of the same case. Frost v Chief Constable of South Yorkshire was a claim by police officers to recover for their psychiatric injury caused by helping at the Hillsborough disaster. It should be noted at his point that a number of claims by police officers had been settled out of court, to much gnashing of teeth in the national newspapers. Their claims were under two heads: firstly, as rescuers, and secondly, as employees. At the Court of Appeal, they succeeded. At the House of Lords, under the name of White v Chief Constable, the decision was reversed, and they went the way of the Alcock plaintiffs. Although it could be argued that White makes Frost irrelevant, it should be looked at first because, for a short while, it represented a breakthrough in this area of the law. So, Frost shall be briefly looked at before we move on to White.

As mentioned, Frost was a claim by five police officers for psychiatric injury suffered after their involvement at Hillsborough. They put forward two claims: firstly, as rescuers, and secondly, as employees. Four of the five managed to succeed at the Court of Appeal, while one failed for lack of proximity.

It is submitted that, as Mullany and Handford state, this case "goes a long way to remedying this sorry saga" (i.e. the post-Alcock cases,). For its brief life span, this case represented an "enlightened appreciation" of the issues raised. Especially welcome was Henry LJ's discussion of PTSD, and the admission of the fact that the shock-induced requirement is totally inconsistent with medical knowledge. As has been noted, this has been a great failing of the House of Lord's attempts at this subject. One of the criticisms of Page v Smith was that for as long as doctors are unsure about the medicine behind these cases, so will the courts be. Hopefully, despite Frost's downfall, this willingness, at least of the Court of Appeal, to consider the medicine will help to solve this problem. It is, in any case, a much-needed breath of modernism into the law. One novel issue which this case raised was that of a US-style, "fireman's rule", to the effect that professional rescuers such as firemen or policemen are expected, because of the training , to be hardened to events that would cause an ordinary person distress. This idea was approved at first instance, but rejected at the Court of Appeal, something of which Mullany and Handford approve. This is in line with their views of interpreting the rescuer category broadly, and indeed of propounding a liberal, wide basis of recovery. Furthermore, the Court of Appeal put professional rescuers in the same class of people as voluntary rescuers, seeing no difference between them. Indeed, the Court of Appeal laid stress on the fact that the police had no option but to be there: it was part of their duty. As Jones points out, this amounts almost to a reversal of the fireman's rule: that police are almost in a better position than the public due to their job, and their obligation to be present. Conscious of this, Henry LJ was at pains to stress that police officers were not being treated more favourably than the public (i.e. Alcock,), saying that: "I do not imagine that police officers in the calm of the control room, watching TV monitors, would recover". This is clearly an attempt to reconcile Frost with Alcock. Mullany and Handford, however, would tale a more strident view. In noting the court's "uneasiness" because of Alcock, they claim that "the only satisfactory solution is to admit that the House of Lord's decision in Alcock brought about the wrong result". Obviously, to do this was not an option open to the Court of Appeal in Frost, but it is respectfully submitted that their view is, in essence, correct. It has been shown how greatly illogical and distasteful is the Alcock decision, so it would surely be better, in future, to "take a wide detour" around it. This would effectively be to hold up the case as a paragon of anti-virtue, but then, bearing in mind the points made the first part of this chapter, would this be such a bad thing?

Criticism of the case include that by Jones, that Henry LJ's judgement comes very close to allowing claims after witnessing gruesome scenes, without the requirement of a close of of love and affection. It is respectfully submitted that, bearing in mind the circumstances of the case, this is probably true, but that the enlightened approach and positive march of the case should be the main point to remember. A good, clear, logical House of Lords decision, abandoning Alcock (and now, regrettably, White as well,) but building on and altering Frost, could easily bring in such a requirement.

It is also worth mentioning Mullany and Handford's point that, under the Alcock "horrific" test, all the plaintiffs in Frost should have succeeded as bystanders: how horrific an event does the court want? It is however submitted that this was not the sort of thing the court had in mind (however flawed and floodgates-driven the mental processes might be,), and in any case, the employee as rescuer basis is a surer foundation for this claim and the law.

So, it is concluded that Frost was a cool morning breeze bringing a burst of freshness into the stuffy chambers of the House of Lords. For all its faults, it was a case that had its compass foxed securely in the right direction: of a modern, reasoned standard of law. Regrettably, however, the gloom closed in again, and White extinguished this small flame of hope. It is to this sad relapse that we now turn.

In White v Chief Constable of South Yorkshire, the police officer's claims were the same as in Frost, namely under the heads of employee and rescuer. It was held that they could not recover, Lord Goff dissenting on both points, with the addition of Lord Griffiths on the rescuers point. There are a number of criticisms to make about their Lordship's judgements and reasoning, which shall be looked at without delay.

The first point to be made, and one which seems to underpin all of the majority judgements, is that to afford the officer's redress would have sat uneasily with the rejection of claims in Alcock, effectively the criticism of Frost, made earlier. As Lord Hoffman said:

This is the crux of the point, and, it is submitted, the House of Lord's main reason for reversing Frost: they did not want to be seen to contradict themselves, give preferential treatment to policemen, or to depart from their favourite difficult child, Alcock. There are two points to be made here. Laudable though consistency in the law is, bearing in mind the strong criticisms made of that case in this paper; this can hardly be viewed as a justification. More plausibly, the House of Lords missed a perfect chance to reverse Alcock and set the law on a reasonable footing, as established by Frost. The second point is that deciding one case to fit in with another, especially a dubious one, is not a very sensible way of proceeding. It is rather like following the car in front for the comfort of knowing it is going somewhere, when the direction you really want to go is in the other direction. In other words, tying your reasoning to an old case, while medical opinion and societal needs evolve is surely taking the requirements for certainty too far.

Linked to this point is the question of the police's status as professional rescuers. It could be argued that "one would expect the police to be at a [litigious] disadvantage. The police are trained to deal with catastrophic incidents…" and by respect of this training should find it harder to recover. It is admitted this point has a superficial appeal, but one should remember that police are trained to deal with "normal" distressing sights (if there can be such a thing,) such as robberies, car accidents, murders, and so on. All the things, in short, which are to be expected in the onward grind of human existence, and which are no-one's fault. What happened at Hillsborough was not "normal" in any sense of the word; the police cannot be expected to be prepared for this kind of disaster. More over, it was caused by the negligence, by the fault of their employers. It could have been avoided. Murders, accidents, and the like cannot, they will happen, and the police will have to deal with them, for as long as the world turns, and man has a place on it. Furthermore, as Kelly points out, the court has effectively sidelined the police as bystanders. What would have happened if they had really acted as bystanders? They would certainly be in some dire straits with their employer the following day. So why, after helping in a disaster that was the fault of other policemen, is their employer not answerable to them?

It is also suggested that this case shows some of the blinkered old attitudes that one hoped had been banished for good in Page v Smith. For instance, the references to "emotional injury", with the pejorative connotation that go along with it. Furthermore, Lord Steyn stated that:

This begs the question, why not? Why should psychiatric injury be only an adjunct of physical? The court's stammering reply should be that, behind all the pseudo-modern statements contained in this judgement, psychiatric injury is not regarded to be as serious as physical. Steyn also makes the statement, laudable in its honesty (in itself an advance on previous cases,) that

It is submitted that this is correct to a point, but is also a rather defeatist and unnecessarily pessimistic view. There have been cases that have put forward a fairer and more logical viewpoint, and in any case, no one suggests that the law should be completely unrestricted, just that the line should fall in a fairer and more logical place.

Steyn also cites the example of the Criminal Compensation Scheme's mental injury provision. He mentions, approvingly, the fact that restrictions there were brought about because of a fear over "an intolerable burden on the public purse". He uses this as a justification for the restrictive tort law here. However, it must be remembered that these rules are meant to provide sensible guidelines for claims in all psychiatric injury cases. The public purse may be involved in a case with police, but by enlarge these cases are a battle between insurance companies, essentially trying to settle claims rules. So, although there is a point to be considered here, it is respectfully submitted that Lord Steyn has really missed the point.

Lord Steyn makes an analogy with other types of tortious claims. His point was that the law drew distinctions in other areas, for example between physical damage and economic loss, so why not here? There are two answers to this, which it is submitted, outweigh Steyn's point. Firstly the instant topic concerns people's health, a condition as debilitating as losing limbs, not loss of property. Secondly, allowance for pure economic loss would entail a massive rise in claims, for in a negligent situation, someone will have lost money. This is not the case here, for it is submitted, as has been mentioned with respect to Alcock, that the "floodgates" fear is exaggerated. Any plaintiff has to first pass the requirement of a recognisable mental condition, which will rule out the vast number of potential claimants, plus any justifiable limits (such as a close tie of love and affection,) that may be imposed. The arbitrary restrictions, which are imposed as in economic loss, are simply not necessary.

This argument also bears on the other main argument used in White (apart from incompatibility with Alcock,): that to allow claims would have substantially expanded the existing categories of claimants. It is submitted that this is partially true: more people would be able to claim, but their numbers would be restricted by the aforesaid methods, and in any case these are manifestly deserving claimants, a fact that often seems to slip by unnoticed.

Furthermore, it is submitted that Lord Hoffman's fear of "ghoulishly curious" spectators claiming being used as a justification to prevent an "unwarranted extension to police" is somewhat offensive to the police plaintiffs. They were not "ghoulishly curious" bystanders shocked by what they saw, but courageous men and women doing their duty in a horrific, negligently caused situation. They were helping, not morbidly watching, on the day in question. It is submitted that it is about time that the courts stop punishing, and recognise and reward bravery.

Hoffman continues, in what Kelly describes as a "Coultas-type ratio" to claim that the officers should not be allowed redress under the "rescuer" head, because they would only "encourage people to offer assistance". There are three points to make about this rather bizarre statement. Firstly, it misunderstands the nature of rescuers: there is no time to sit and think, just to rush in and act, or it will be too late. It is submitted that, it only does his Lordship misunderstand the nature of an emergency, but also gravely misunderstand what goes through people's minds mind in time of crisis, if he really does think that they will stop to consider legal niceties. Secondly, the police had no option but to assist: it was their duty. Thirdly, we should be encouraging people to help in emergencies, not punishing them.

Lord Goff made a resounding dissent in this case. One criticism of his that is worth repeating is that of the requirement of physical danger for rescuers. He took an analogy from Chadwick's case. What if there were two brothers helping in the confines of the train, and experienced identical sights, sounds and actions, except for Brother A there was physical danger, for Brother B there was not. They suffered identical psychiatric injuries. Brother A would be able to recover, Brother B would not. Is this fair? Clearly not, and this is especially worrying, bearing in mind the fact that such a situation is far from idle judicial speculation: it could easily crop up in the real world.

Of course, the real motivation for the majority judgements was the old buzzword "policy". Lord Steyn offered some reasons why recovery should not be allowed in this situation. Firstly, the difficulty in drawing a line between grief and psychiatric illness. It is agreed that this is a complex area, but it is not insoluble. Whilst the symptoms are often similar, medical knowledge continues its onward march, and it is possible to tell the difference between the two conditions in the vast majority of cases.

Secondly, he claimed that litigation is a disincentive to recovery. With the greatest respect, this suggestion is little short of ludicrous. Why would anyone choose to suffer, consciously or otherwise, because of a court case? If anything, this argument is in favour of recovery, and a quick one at that, for the money paid would help the sufferer to achieve closure, to put a full stop after their horrific experiences. It is pointed out that what most plaintiffs desire is not money, but recognition from the defendant of the stresses they have gone through. Thirdly, increasing the number of claimants, is a point that has already been dealt with.

The final criticism to be made is of Hoffman's assertion that it is "too late to go back on the control mechanisms as stated in Alcock's case. Until there is legislative change, the courts must live with them and any judicial developments must take them into account,". There are two points to be made here. Firstly, the House of Lords can overturn its own decisions, so this claim is somewhat disingenuous: the House has missed an excellent opportunity to alter its botched job in Alcock. Secondly, legislative change, Parliamentary intervention, may now be the only thing that can alter the entrenched judicial attitudes and the tangled mass of caselaw. This, along with other options for reform will be considered in due course.

The impression that one is left with after White, and indeed all the Hillsborough litigation, is one of a court deeply unsure of its ground. None of the judgements carry that ring of authority and informed self-assurance that should be seen when dealing with matters of this consequence. The reasons given were unconvincing, the thinking patchy. One could almost suggest that the court knew it was taking a wrong turning, but felt dragged on to follow previous, doomed decisions, and its own flawed logic. This does not inspire confidence.

There have been many cases, both in this country and elsewhere: some must be looked at now. Regrettably, we can only make a passing acquaintance with these cases, as space prevents any more. Some cases will provide indications of the path forward, others will show where the footing has slipped on this treacherous path; still others will silently beckon towards unseen chambers holding fresh new problems.

The first cases that should be looked at are those that have already been alluded to in the previous chapter, and "doubted" in Alcock.

Firstly, Hevican v Ruane, where, as a result of the defendant’s admitted negligence in driving a school minibus, the plaintiff’s "favourite" son was killed. The plaintiff was told about it shortly afterwards at a police station and he was then taken to the hospital to see the body. He suffered from "continuing reactive depression" as a result, and was unable to return to work.

It was held that the plaintiff could recover, despite not being present at the accident or its immediate aftermath. A pure "reasonable foreseeability" test was adopted, the judge holding that as nervous shock" was foreseeable, the particular injury need not be. Stress was laid on the fact that every link in the chain of causation was foreseeable, from the driver’s negligence to the communication of the news. Naturally, despite the disapproval here of the terminology used (see chapter one,); it can be seen that this was a very permissive judgement. The foreseeability of psychiatric injury was a fairly easy step, the only perceived problem being over causation, for which support was found in McLoughlin, per Lord Bridge:

Furthermore, the judge in Hevican was influenced by the famous American case of Dillon v Legg, where Tobriner J said that the defendant’s duty must depend upon reasonable foreseeability and "must necessarily only be adjudicated on a case-by-case basis".

So, by relying on authorities to the effect that " provided each link in the chain if causation…is itself foreseeable as likely to happen, a plaintiff will not be defeated simply because the harm he suffers is separated form the negligent act by time and distance.". Before we analyse this case, the facts of another must be related so that they can be considered in tandem. This case is Ravenscroft v Rederiaktiebolaget Transatlantic, at first instance. Here, the son of a "very close "family was crushed to death at work. His mother was called to the hospital by her husband, who then refused to let her see the body. Thus, she did not have direct perception of the accident or its immediate aftermath, but by her "imagination of the agonies of mind and body" in which he died, and of the state he must now be in, she suffered a prolonged depressive reaction. Once again, a pure reasonable foreseeability test was adopted; the chain of causation being held to be sufficient as a basis for recovery. Crucially, this argument was adopted in preference to the decision of Hidden J in Jones v Wright (the first instance decision of what was to become Alcock in the House of Lords,), where an argument of proximity in terms of time and space was used.

Before we consider the merits and defects of these cases, it should be remembered that both have been frowned upon on appeal: "doubted" in Alcock, whilst Ravenscroft was reversed in the Court of Appeal as inconsistent with that same, troublesome case. Once again, the sagacity of judging cases to fit in with Alcock is questioned (although the Court of Appeal obviously has to follow a House of Lords decision,), but we shall look at the first instance decisions, for it is here that the real value of these cases lies.

Firstly, it is admitted that the test used is a very broad one. However, it is submitted that it is essentially sound, and intrinsically just. If the defendant could reasonably have foreseen his causing psychiatric damage to the plaintiff, he should be liable.

Psychiatric damage is as serious as physical, and as worthy a case for which to recover. True, the test as laid down in these cases is very wide, but modifying this doctrine could justly restrict the numbers of plaintiffs. For example, if, in addition to a recognisable psychiatric illness, a requirement of a close tie of love and affection (outside an assumed list of relationships,) was imposed, the most unlikely plaintiffs would be excluded. It could not be seen to be reasonably foreseeable that someone with no attachment to the victim would be liable. However, this is to usurp the purpose of the options for reform chapter, which is clamouring at our gates for attention.

It is submitted that the use of Lord Bridge’s quotation of Donoghue v Stevenson was pertinent: the neighbour principle should be more often borne in mind. It is submitted that in both the above cases, it was reasonably foreseeable that, if you kill your neighbour’s son by your own negligence, you may well cause them to suffer psychiatric injury. It may not happen to all, but it is clearly foreseeable. Once again, the fact that the injury is in the mind does not make it any less serious, or any less foreseeable. Furthermore, the criticism made of Alcock, that imagining injuries can often be far worse than witnessing, is recalled here. In both cases a lot was left to the imagination, in Ravenscroft, everything, with disastrous consequences. If someone loses their son through the negligent action of another, and suffers a psychiatric injury as a result, this is patently a worthy cause of action. It does not matter how the injury is inflicted. Arguments that a psychiatric injury is not foreseeable are not sound, for this implies that the plaintiff is not of strong mind. Not only is this insensitive and insulting, it is also a grave misunderstanding of the way the human mind works. This point is closely linked to that of proximity: the fact that both plaintiffs were away from the accidents is neither here nor there: the action was negligent, a psychiatric injury was suffered, unless there are overriding reasons why not, a claim should succeed.

In answer to the predictable drone of "floodgates", it is once again submitted that the reasonable control mechanisms of recognisable psychiatric injury, reasonable foreseeability allied to a requirement for a tie of close love and affection would suffice. Those that can claim would be entitled to, and in any case, the increase in the numbers of plaintiffs would not be too large. Why should it be? Even the most ardent socialite has only a limited number of people with whom he or she has a close tie of love and affection, and of those, most will not suffer a recognisable psychiatric condition. Of those that do, other disincentives, such as such as the spectre of litigation, will act as a filter. Once again, however, this is to draw our conclusions too early.

The final comment to be made is an approval of the overall atmosphere of fairness and looking at each case on its merits. It is submitted that there should always be room for a favourable judgement based on the facts of a particular situation. It is far better to admit this, than to act on it but not do so. This would mean we still have the unpredictability of the current law, where, as Napier and Wheat point out "the more individually compelling a case can be, the more likely the plaintiff will be to succeed..

So, with a friendly nod to Ravenscroft and Hevican, we move on to a recent case with a less satisfactory result. In Terence Tranmore v TE Scudder Ltd, a father who arrived at the scene where his son had been killed two hours earlier was no entitled to recover as he was beyond the immediate aftermath of the event. This case is notable because it shows the problems with the aftermath test. No, real criticism of the Court of Appeal is necessary in this case; for once again the influence of Alcock was decisive. Interestingly, the judgements referred to the Law Commission’s Report No. 249 , which advocates the creation of a new statutory Duty of Care in cases where the plaintiff has a close tie of love and affection with the victim. It was held that, with implied acceptance, such a rule would abolish the "aftermath test", but under the existing law, the plaintiff could not bring himself within the existing line of aftermath cases. Indeed, this proposition is in itself somewhat dubious: the plaintiff arrived at the site only two hours later and the emergency services were still at work: a good case could be made out that he was indeed involved in the aftermath. However, this aside, the case is an excellent example of the faults of the McLoughlin/Alcock aftermath test: an arbitrary line was drawn, so preventing a man from recovering, having suffered psychiatric injury due to the negligent killing of his son. It is submitted, for reasons expounded throughout this paper, that people in this situation should be allowed to recover.

Our next subject is the controversial "rescuers" case of McFarlane v EE Caledonia, and its acolyte, Hegarty v EE Caledonia. In McFarlane, the plaintiff witnessed the Piper Alpha disaster from a support vessel on which his quarters were located. He was never very close to the fire, and only assisted in stacking blankets. He never moved any closer than one hundred metres, which was when his vessel attempted to fight the fire and render assistance. For an hour and three-quarters he watched the explosions, until his evacuation by helicopter. At no point was he in any personal danger. From this he suffered psychiatric illness. He claimed damages for the events he had suffered, which were refused at the Court of Appeal. He could not recover on three grounds: firstly, he was not in any personal danger, so could not claim under a Dulieu-style claim for fear of personal safety. Secondly, he could not claim for what he saw, being a mere bystander, for whom damages were not available. Thirdly, he could not be held as a rescuer because he was not actively involved in the rescue operation, beyond moving blankets.

Firstly, this case is in itself a criticism of Alcock, and the vagueness that this case has produced. In that notorious case, an example was given of when a bystander might recover; for example when witnessing a particularly horrific accident. What, then, is a particularly horrific incident, if an isolated oil rig, disintegrating through a fire which claimed the lives of 164 men, is not? Once again one is reminded of Jones’ point: are children required for sufficient "horror"?

However, it is submitted that this case was correctly decided. The plaintiff could not recover for fear for his own safety, for he was too far away and not in any danger. As it was pointed out in the similar case of Hegarty, the fear was genuine, but it was not reasonable, ant therefore he could not recover. This is in line with the nascent, flexible test of "reasonable foreseeability" being put forward here. It is submitted that when applying the this proposed test, one would have to consider fairness to the defendant too: could he really have foreseen that this man, in no personal danger, with no personal ties to those in trouble, and playing no part in the tragedy, would be psychiatrically injured? Surely not. It is furthermore pointed out that no quarrel is made in this paper, with most of the law on primary victims or bystanders, for this is largely felt to be correct. So, he should not be able to recover as a mere bystander, for it was not reasonably foreseeable that he would be injured.

As for rescuers, it is submitted that he should not be able to recover under this head because he did not do any rescuing. This is in sharp contrast with the policemen in White.

As an overview, it is submitted that McFarlane shows where the line should be drawn: it was not reasonably foreseeable that he would be injured, and so should not be able to recover for his psychiatric injury, tragic though it was.

There are a number of cases concerning the death of a colleague which need to be considered, as they have great relevance to the "secondary" victim debate.

In Dooley v Cammel Laird, a crane operator feared for the safety of his workmates after seeing a rope snap and the load fall into the hold of the ship. This case is problematical because there is no tie of close love and affection that would enable it to survive today. Indeed, it is in fact authority for the principle that there need not be a parental tie. Secondly, although he witnessed something, there was no injury, so how could he have been the witness of an accident. This second point can be easily dealt with by reference to Hambrook v Stokes: and quite rightly so: it was the anticipation of that accident that caused the psychiatric injury. As has been pointed out with reference to Alcock and Ravenscroft, the imagination is often what causes the damage.

It is respectfully submitted that this case was correctly decided, being as it is, authority for the fact that the mutual bond between the victim and the witness need not be parental (as in Hambrook). This is surely correct: the close tie of love and affection that has been subsequently imposed can arise in all sorts of situations, not just rigid categories. It is submitted that this kind of case should be examined on the facts of the situation. This kind of cross-examination is distasteful in a familial /relationship context, but in this kind of deeply uncertain situation there is no choice. Workmates may hate each other, or be like brothers. The court would have to find out which, to determine whether the injury was reasonably foreseeable. Furthermore, in this kind of situation, where and employee is expected to carry out a reasonably dangerous task, he should be provided with strong equipment. It is surely reasonably foreseeable that if he is not, the operator may suffer psychiatric injury from fear of what will happen to his fellows.

In a general comment on these cases, the courts frequent reference to someone of reasonable fortitude"/"ordinary phlegm" are somewhat patronising. Psychiatric injury can happen to anyone, especially after a traumatic event. As Fields says; PTSD is a normal reaction to a profoundly abnormal event. The implication that sufferers are somehow weaker than others is out-dated and unrealistic, belonging as it does to the "pull yourself together" school of psychiatry.

In the light of these points, the decision in the Scottish case of Robertson v Forth Bridge Joint Board is rather surprising. In this case, co-workers who witnessed a colleague being blown off a truck crossing a bridge were not entitled to recover. Naturally, the result of this case, following on form Alcock, is not surprising. Once again, that case and this are criticised on the grounds mentioned above and in the last chapter. These "bystanders" were assumed to be of sufficient fortitude to endure the shock. Again, this is surely not correct. Obviously, the motive is "floodgates" which, as has been shown, ids an exaggerated threat.

In Duncan v British Coal Corp., the plaintiff rushed to help as colleague trapped in a conveyor machine; he was 257m away and the victim was dead when he arrived. His and other’s frantic efforts were held not to constitute rescue. This case shows much of the same patronising attitude, when the judge ruled that a person of "ordinary phlegm" would not have been affected by the incident, so he could not claim as a rescuer. It is submitted that this case was incorrectly decided, for the same reasons as the same submission is made about White: the plaintiff had tried to help, and was mentally affected by the incident. As above, the comments as to his "phlegm" are insulting and rather patronising. In any case, Page shows that, despite criticism of this judgement, the "egg-shell skull" rule applies in these cases: the plaintiff should be taken as he is found: customary "phlegm" or not. It would have been marginally better if the court had decided that the injury was not reasonably foreseeable to this rescuer. At least there would then have been some kind of logical justification for the ruling.

Young v Charles Church provides a refreshing change. Here, a colleague’s electrocution was witnessed and was recoverable. This case, taking Page’s declaration that shock-induced psychiatric injury can found an action for damages at law, is a more modern and medically aware approach, which is approved.

In Hunter v British Coal Board the plaintiff left the place where his colleague was killed a few minutes later: his irrational feelings of guilt were held to be "too remote". The Court of Appeal was quite right when it stated that "survivor’s guilt" was a point new to English law. However, this is not a justifiable reason for refusing recovery. As Lord Bridge pointed out in McLoughlin, quoted above, this is not an area of the law where rigid rules should be created. Medical knowledge is constantly expanding, and new situation will constantly arise, to which the court must be willing and able, to adapt.

It was also claimed that the plaintiff could not be treated as a secondary victim because he did not witness the accident. Neither did Mrs Hambrook, and it has already been explained, with regard to Dooley, that a parental tie is not, and should not be necessary for claims of this sort. Thus, Hunter is out of line with precedent.

Naturally, Alcock has had its hand at work here, as it has in all popst-1992 cases. As this aspect has already been criticised, it will not be mentioned again here. Finally, on this case, due to the employer’s negligence and his own minor part in the accident, the plaintiff suffered from recurrent guilt. It is submitted that this is not too remote, and that he was in any case in physical danger: he had only left the scene for a few minutes; had he waited a little longer he too would have been killed.

It is submitted, whatever the reader may think of these criticisms, that the above cases amply show the uncertainty in the law that was referred to in the last chapter. The law is not in a desirable state, and something needs to be done. There are many cases which, in any ideal world, would be considered, but this is prevented by lack of space. Regretfully, therefore, we next turn to potential limits ion the law, to discuss whether floodgates is a justifiable threat, and consider potential fields of expansion for the future.

Having criticised the current rules of recovery for psychiatric injury, it is a good idea first to look at other groups of potential claimants, who may begin to emerge once the rules are loosened. As part of this, one should consider the merits of their claims, and how this system, or another, would deal with them. Naturally, much of this will be speculation, but it is necessary to consider the possible consequences of what is proposed, especially in what is perceived as our increasingly "litigation-happy" culture.

Firstly, having looked at policemen in White, it is apt here to look at firemen and paramedics, and also to consider, as a whole, whether the emergency services should be treated in the same way as the public. One case that is worth mentioning in this context is Hale v London Underground, where a fireman helping at the King’s Cross fire, and who returned six times to the blaze, retrieving a body each time, was allowed to recover for his PTSD as a rescuer.

In the same disaster, a ticket collector was awarded an (at the time) record amount for his part in helping passengers to escape, suffering great fear for his own safety and developing PTSD as a result. The latter case was a relatively straightforward one, as a member of the public acting as a rescuer, closely involved in the tragedy, clearly fall into that category. Hale, however, is more controversial. There is the issue, raised in Frost/White, of whether the emergency services should be able to recover, essentially for doing their job. In Frost, it could be claimed that police were acting outside their duty in dealing with an incident caused by the negligence of their own employer: it should not have happened. In Hale, however, it is a fireman’s job to deal with fires, negligently caused or otherwise. Indeed, most fires (apart from obvious examples like arson and natural) are negligently caused anyway: this would therefore take the line further, to recovery for doing what they knew was a dangerous job. It is however submitted that this view is rather a vengeful one. The Alcock plaintiffs made many comments of this nature in the aftermath of Frost. Understandably so, but it is submitted that their injury should be directed against the injustice of their own case, Alcock, not against the demised justice of Frost. It is further submitted that the rejection of a "fireman’s rule" for this country, whereby a higher standard of tolerance is required for "professional rescuers", was the correct move. Emergency service workers are human too, as infinitely fallible as the next man, as frail in mind and body, subject to the same stresses and horrors as we are. #Moreover, in their duty they are obliged to confront scenes that the public will never come across: should they not be allowed to recover for their continual bravery? It is pointed out that this money is not a reward for their appearance at the scene, for doing their job, as is often suggested. It is compensation for a life-shattering injury. Naturally the compensation schemes within the services should be taken into account, but only as to the amount of damages, not the issue of liability.

A similar storm arose recently with regard to the possibility of police officers claiming for PTSD after the Dunblane tragedy. There has been no case put in motion as yet, but it would promise to be even more controversial than Hillsborough. Relatives have made complaints about police handling of the tragedy, and even had plans to sue the police in negligence for allowing Hamilton to hold a gun license. The problem with this situation is that it is much closer to one the police must be expected to deal with. As Dame Jill Knight said: "I don’t see how police, in a situation like this, can do anything other than send police officers out. Police have more than a job of just directing traffic." True, but one must remember that, as mentioned above, police are still susceptible to injury: they are not expendable mentalities. There has been a lot of ill-informed talk on this issue: both Dunblane and Alcock families have caught the judicial bug of bleating about "floodgates"(which has been mentioned already and will be discussed again shortly,), and of effectively accusing the police of wanting "appearance money". However, it is submitted that the line should be drawn here: unlike their colleagues in Frost, and Mr Hale, they cannot be seen as rescuers: this trauma must, regrettably, be outside compensation.

A similar case is that of a paramedic suing his bosses for the trauma of his work. Prima facie, this case would fall into the same category as that above: the unavoidable part of the job. However, there is a nice distinction to be made here: he was not claiming for what he had seen, but for the fact that there was no counselling to deal with the psychiatric injury he received. This is contrary to popular belief. It is submitted that the former case should not be recoverable, the latter should, for again, it is not an unavoidable part of the job, it is someone’s fault: negligence id truly involved.

This case leads neatly on to the next area of contention: soldiers. Once again, it is not proposed that servicemen should be able to recover for the sights and sounds of battle: this would lead to a ludicrous result. However, it is a fact of life that PTSD will result, and it needs to be dealt with. If it is not, or is negligently approached, there should be redress available. If the state will not step in to help its emergency services and soldiers, when will it? Regrettably, it rarely does, for this country’s treatment of its ex-servicemen is little short of disgraceful. It is pointed out that men and women with physical injuries have care provided: not so those psychiatrically injured. Recently there have been some moves by veterans to claim on these grounds, which have provoked the predictable flurry of "pull yourself together" letters to the nationals, including the citing if fathers who went through WW1 and never complained. In response, the following quotation from the Welsh Guards medical officer from the Falklands, responsible for treating those wounded upon RFA Sir Galahad, and this serves as a rejoinder to the whole criticism of rescuers recovering in this area:

The failure to do so is amply demonstrated by the example of US Vietnam veterans: if care is not provided, the state should answer for it before the law. Those who protect their country should be able to ask why she did not do her best to protect them. There are four further points to make here. Firstly, just because this treatment was unavailable in WW1 does not mean that it should be denied now it is. Surely what they were fighting for was a better world? Secondly, the forces and emergency services today are employers just like any other: they freely admit this, and in fact use it as a recruiting point. The state should accept the responsibility that this entails. Thirdly the claims are not for the experiences themselves but for the lack of proper care. Lastly, the fact that not everyone suffers form psychiatric injury does not mean that that those that do so should be ignored: you would not deny compensation for broken limbs just because not everyone is affected. All these points apply across the board to the law of psychiatric injury.

In connection with this issue one should look at the Irish case of McHugh v Minister for Defence and Others, which arguably shows a parting of the ways with the House of Lords over employers liability for psychiatric injury. In this case, an Irish soldier was claiming damages for PTSD after his UN service in the Lebanon. Crucially, he was not claiming for what he saw, but for the negligence of his officers in not noticing his condition earlier: it would not have been so bad had he received care. He succeeded, on reasonable foreseeability and under an employer’s duty to employees. Pending appeal to the Irish Supreme Court, there is clearly a difference in approach between the House of Lords and Ireland here. Furthermore it is one that is warmly applauded: it submitted that the Irish have it right, both on the facts of the case and on the principles of law applied. Soldiers should be able to claim for negligence or non-existent psychiatric care, though obviously not for service itself, which would be ludicrous, and there is no entitlement anyway.

However, the fields in which people may suffer PTSD continue to open out before us. For example, a very recent case: W v Essex County Council, which was only a strikeout application, which although being refused, does not provide an authoritative judgement: for that we shall have to wait. It involved foster parents claiming for psychiatric injury due to the abuse of their children by a child placed in their care by the council, against whom they claim for damages in negligence. This very difficult case would succeed under the embryonic claims being put forward here, but will run into problems (as do most things,) with Alcock: the parents were not within sight or sound of the incident, fairly obviously, or they would have stopped it. Despite this, there was held to be an arguable case, so it proceeds to trial. It is submitted that, bizarre though the facts of this case are, it should succeed, as the way psychiatric injury was inflicted should not matter, as long as it is reasonably foreseeable. Furthermore, it was because of someone’s negligence: the council should have known about the child’s tendencies, whilst the close tie of love and affection was clearly satisfied. Naturally this will be one to watch.

The "categories of negligence are never closed", however, and there is also the issue of overwork and bullying to consider; novel charges both.

In Walker v Northumberland County Council a social worker successfully sued his employer for foreseeable mental injury caused through excessive, continuous, demanding and distressing work. Similarly, it has been claimed, quite plausibly, that PTSD can be caused through bullying. Naturally, one must take care not to confuse PTSD with "mere" distress, but in principle there is no reason why a claim could not successfully be brought for this. Even the House of Lords would have to acquiesce for these are "primary victims" for whom the control mechanisms "have no place", and Page shows that it does not matter if there is no physical injury: the two types are to be considered alike. Indeed, some bullying cases on PTSD have been settled out of court, whilst others, taken to an industrial tribunal, have succeeded on these grounds. This is an emerging area: if one can claim for PTSD (a la Walker) and bullying is a major cause of PTSD (which we are assured by these authors it is,), then it should, in theory, be recoverable. However, we await a major case.

Clearly, the categories of potential claimants, of which only a few are considered here, are very wide. This is in part offset by the fact that these claims are just: one should either abolish personal injury claims altogether, or allow psychiatric injury to take its rightful place in the line.

However, in deference to the courts’ fears it is right that we deal decisively with "floodgates". Certain points as to why the fear is exaggerated have been mentioned already: general disincentives to litigation, (delay, cost, stress,), adequate redress elsewhere, the fact that most people are not susceptible to psychiatric illness, and so on. However, there are other considerations. It should be noted that "floodgates" is not entirely rejected as a policy limitation: unrestricted claims rules would clearly bring a flood of claims. However, it is suggested that the fear has been exaggerated, and whilst some controls will be needed, the veritable armoury that the courts possess at the moment is unnecessary. As the Law Commission say on P.84 of their Consultation Paper No.249:

So, the Law Commission decided, as it has been here, that some controls are necessary. However, it seems that the floodgates risk has been substantially exaggerated and that with time and increases in medicine the risk will recede. The Law Commission’s conclusion was motivated more by a "be on the safe side" philosophy than a conviction of the danger of floodgates. In any case, if the Law Commission takes this view, we can at least assume that the danger has been substantially exaggerated.

One should also bear in mind the point made by Teff that "there has been little evidence of proliferating claims in those jurisdictions which have taken a more expansive view of recovery", a view echoed by Mullany and Handford.

So, it can be assumed that, whilst "floodgates" is a factor that must be taken into account, it is not the all-powerful Overlord that the courts fear. With this phantom’s rattling chains stilled, we can move on to options and recommendations for reform.

The time has now come for us to return to the preliminary submissions made in the first chapter, and to show how they have been proved true, and how it is proposed that they are alleviated.

The first submission was that the law is unacceptably vague. This has surely been shown by the tangled mass of caselaw through which we have navigated. From the expansion of McLoughlin, to the complex turgidity of Alcock, the hope of Frost and the reaction of White, the legacy is one of uncertainty and contradiction. Along the way we find islands like Hevican, and vortexes like Hunter, but none manage to lift the gloom of uncertainty. Clearly this has ramifications for practitioners in advising clients, judges in deciding cases and the public as to their responsibilities.

The second proposition was that the current position is illogical. This has been amply shown in the previous chapters, especially with regard to Alcock. Of especially strong criticism is the apparent treatment of psychiatric harm as less serious than physical, conscious or otherwise.

The third proposition, that the previous two lead to, was that the situation is not too far gone to be dealt with incrementally by the common law: in any case, the courts do not seem either capable or willing to install a fair and modern system. As was stated in White: any changes must be by Parliamentary intervention. Therefore, legislation is required to deal with the serious problems that arise in the law, especially with regard to secondary victims. It is agreed with the Law Commission that complete codification of the law is not suitable, partly because much of the law is satisfactory, and for example with regard to primary victims, where the House of Lords, correctly it is submitted, have held that control mechanisms have no place and partly because there needs to be flexibility in this complex and developing area: the common law should be allowed to adjust to new situations as they arise.

Now, we will briefly illumine three options for reform, namely that proposed by Stapleton, of no claims for pure psychiatric injury, that of Mullany and Handford of a much more liberal system, and the compromise solution of the Law Commission. Following this, the conclusions drawn by, and recommendations made in, this paper will be laid out.

Firstly we shall look at the hard line pursued by Stapleton. Briefly, her thesis is that artificial limitations on liability (proximity in time and space,) are no more than unprincipled line drawing, likely to bring the law into disrepute. With the first suggestion no quarrel is made. Stapleton continues that once a general duty has been recognised, many more individuals will present the symptoms to their GPs, and that judges will define "pathological grief much more loosely than the law would find tolerable". So, litigation will either be a disincentive to rehabilitation, or a magnet to fraudulent claims, whichever contradictory view you choose to take. Both are disagreed with, have been mentioned above and will not be repeated here. In sum, Stapleton feels that, as we cannot create perfect rules, the cause of action should be abolished altogether.

Two criticisms of this spring to mind. Firstly, the idea of "bringing the law into disrepute" is a rather unrealistic notion. In a rather Dickensian view, the law cannot be perfect, and will not please all the people all of the time, so that the question of disrepute is one of degree, not of totality. It is submitted that the law is always, by its very nature, in disrepute to a certain extent: it is our job to see that it leans towards justice. Secondly, the fact that we cannot reach Utopia does not mean that we should abandon all attempts to travel a little closer. We should help as many people as we can, even if some are, by necessity, excluded. Furthermore, one of the main themes of this paper has been the equality of seriousness between psychiatric and physical injury. For these reasons, Stapleton’s thesis is rejected.

At the other end of the scale we find Mullany and Handford. The general theme of their work is agreed with: that the law limps behind medical science, that the rules are illogical and unjust, and that psychiatric injury should be treated in the same way as other personal injury. Similarly, no argument is made with their trenchant criticisms of Alcock and the aftermath doctrine emanating from McLoughlin. However, the authors favour a pure reasonable forseeability test: it is here that two problems arise. Firstly, the authors feel that "any emotional or mental suffering which develops into damage of a psychiatric nature should be compensatable whether it stems from fear or horror, or worry, anxiety, anger, disappointment, distress, sorrow or grief.". Whilst the broad sweep of this statement is applauded, it is submitted that it comes perilously close to allowing recovery for grief: currently not recoverable. It is suggested that this should remain the position, in the interests of limiting the numbers of claims: if people could recover purely for grief, there truly would be a flood of claims. This is too far to go, especially as a first step, and so it is submitted that the requirement for a medically recognised psychiatric illness should remain. Secondly, and a point which exacerbates the first, Mullany and Hanford’s unrestricted reasonable foreseeability test would also lead to an increase in claims. It may not be great, but it should be considered. There should therefore be some limits, but fair ones, as will shortly be outlined.

So it is submitted that, whilst Mullany and Hanford’s theme is warmly applauded, they perhaps take too cavalier an attitude to be prudent.

Perhaps the Law Commission reaches a happy medium. As their professional paper, (No.249) necessarily covers a wider scope than this and in more detail, we cannot consider all of their recommendations here. However, in our main area of interest, "secondary" victims, they recommend that:

Furthermore, they would include a fixed list of "lose relationships" (spouse, parents, child, sibling, cohabitant for two years or more,) whilst allowing someone outside the list to prove their close relationship.

There is no serious criticism to make of this, which is regarded as a sensible and enlightened "middle-way" approach. However, the proposals made by this paper would modify these slightly, to add a few categories and clarify the result with respect to certain situations. This paper would recommend legislation incorporating the following "tests", which shall be explained as they are laid down. Firstly, it should be noted that much is owed to the "reasonable foreseeability" test of Hevican, Ravenscroft and Lord Bridge in McLoughlin, with alterations to cope with perceived dangers arising from that: they are primarily "floodgates" measures. The tests run as follows: