Psychiatric Injury in Tort Law and the Alcock Decision: Is It Time for a Change?

Alcock v Chief Constable of South Yorkshire Police (1991) (Alcock) concerned sixteen claims against thedefendant for psychiatric injury resulting from the Hillsborough disaster. Lord Oliver made one of the first attempts to distinguish between secondary and primary victims in tort law. A primary victim is a person who has been physically hurt by the defendant's actions and the secondary victim is one who has suffered mental injury because of the harm done to a primary victim. This article will look at the judgment and the test that was established in the Alcock decision to decide whether it is indeed fair, just and rational. It has sometimes been said that “law is marching with medicine, but in the rear and limping a little” (Mount Isa Mines Ltd v Pusey (1970) 125 C.L.R. 383, 395). That is why this article will be referring to academic sources from both law and medicine to fully comprehend the impact of Alcock.

Before Alcock, claims for psychiatric injury (nervous shock) were almost never accepted. For instance, in Victorian Railways Commissioner v Coultas (1888) 4 T.L.R. 286 the court “did not recognise injury caused by a shock sustained through the medium of eye or ear without direct contact”. This may be attributed to the lack of medical understanding, however, in the same decade, the Irish courts allowed claims for psychiatric injury in Byrne v. Southern & Western Railway Co (Unreported, C.A. Feb. 1884) and Bell v G.N.R. Co 26 L.R. 428 (Ex. Div., 1890). Therefore, the argument for the lack of medical evidence in Coultas can be rejected and this particular judgment might perhaps be linked to the lack of understanding on the judges part. The first development in English law was Dulieu v White [1901] 2 KB 669, which allowed a claim for nervous shock with the limitation that “the shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself”.

To have a successful claim for psychiatric injury a victim must meet three elements: the nature and cause of the injury (shock test), the class of person and the proximity:

Nature and Cause of the Injury

In Alcock, Lord Keith suggested that psychiatric injury meant “a sudden assault on the nervous system”, and Lord Ackner “the sudden appreciation by sight or sound of a horrifying event, which agitates the mind” (Alcock v Chief Constable of South Yorkshire Police (1991) 4 ALL ER 907 p.401). This mechanism was introduced in order to distinguish between mental illness resulting from grief or sorrow, which was held not to be a valid claim for psychiatric injury in Hinz v Berry [1970] 2 QB 40. While Alcock set out the mechanism requiring secondary victims to have suffered “sudden shock”, there is conflicting case law causing some uncertainty. In Walker v. Northumberland County Council [1995] 1 All ER 737, the psychiatric injury occurred over several years, nonetheless, Walker was still successful, despite the event clearly not being sudden. Furthermore, the case of Walters v North Glamorgan NHS Trust [2002] All ER added a caveat to the Alcock decision that a “sudden shock” could be a series of events. While both Walker and Walters were post-Alcock cases, they demonstrate that the courts have difficulties in establishing what sudden shock is and that the set mechanism is not clarifying the law. Therefore, it may perhaps be time for Parliament to legislate on the matter if common law cannot find a solution.

As psychiatric injury is primarily a medical area of expertise it would be irrational not to consult the medical literature. Adamou and Hale argue that “In the medical literature, there is no requirement that the assault on the patient’s nervous system be sudden, for PTSD to develop. The traumatic event can also be chronic” (M Adamou, A Hale, 'PTSD and the Law of Psychiatric Injury in England and Wales: Finally Coming Closer?' [2003] 31(3) The Journal of the American Academy of Psychiatry and the Law 327-323). In addition to this, the Law Commission has also recommended that “we recognise the force of the arguments for retaining the shock test, but we have come to the conclusion that it should be abandoned” (Law Commission Report no.249 ‘Liability for Psychiatric Illness’ 1998). Nasir also argues that “such a manifestly unjust rule [sudden shock] can only be explained by the fact that cases of nervous shock had their origin in situations where the plaintiff was threatened with physical injury… it appears that the courts are too blinkered to recognise such a possibility for mental injury” (KJ Nasir, 'Nervous Shock and Alcock: The Judicial Buck Stops Here' [1992] 55(5) Modern Law Review 705–713). Considering the overwhelming arguments from the Law Commission, medical literature and case law, the mechanism of sudden shock should be removed for the sake of fairness and greater clarity in the law.

Class of Person

Class of person simply means the state of the relationship between the primary victim and the secondary victim. Alcock actually relaxed the requirement for the class of relationship from the one established by Lord Wilberforce in McLoughlin v O’Brian [1983] 1 AC 410. LJ Wilberforce argued that with “relationships other than those between parent and child or husband and wife, the closeness would have to be ‘very carefully scrutinised”. The Alcock mechanism only requires there to be a close tie of love and affection between the victims. The class of person was left ambiguous so it did not restrict victims who have witnessed particularly horrific events, but did not know the victims. However, subsequent case law has excluded witnesses of horrific events. In McFarlane v EE Caledonia Ltd [1993] EWCA Civ 13, the claimant who witnessed a horrific event was unsuccessful in his claim. Lord Justice Stuart-Smith said, “in my judgment both as a matter of principle and policy the Court should not extend the duty to those who are mere bystanders or witnesses of horrific events”. The McFarlane judgment has therefore further restricted access for secondary victims to make a successful claim. While this may have been done because of policy implications, it does not seem rational or fair. There is medical evidence to support the restriction of certain relationships, “some of the known causes of P.T.S.D. include witnessing an incident that involves death, injury or the threat thereof to another person or hearing about such an incident involving a close family member or friend” (American Psychiatric Association, Diagnostic and Statistical Manual of Disorders (4th ed., 1994), para. 309.81, p. 424). While there is some evidence to support limiting claims to those with close ties of love and affection to the primary victim, it is difficult to know when their lordships will notice the medical evidence.

Corbett argues that the Alcock decision “scaled new heights of absurdity” with regards to relationships (Val Corbett, ‘Tort Liability for Psychiatric Damage - Nothing-to Fear?’ [1999] 7(78) Irish Law Review). Feldman also states that “presumption that a parent suffers more than other loved ones should be treated with caution” (T Feldman, ‘Indirect Victims, Direct Injury: Recognising Relatives as Victims Under the European Human Rights System’ [2009] 1(50) European Human Rights Law Review). In fact, Feldman raises an important issue regarding relationships and the severity of the psychiatric injury; considering the number of cultures and family structures that exist in the UK alone, it would be irrational to attempt to establish a mechanism of relationships that applies to all. Taking into account the medical perspective, a normal person is likely to presume that the closer the relationship to the victim, the more severe the secondary victim suffers. However, there is no study to suggest that proximity in a relationship with a victim can determine the likelihood of development or the severity of PTSD (M Adamou, A Hale, 'PTSD and the Law of Psychiatric Injury in England and Wales: Finally Coming Closer?' [2003] 31(3) The Journal of the American Academy of Psychiatry and the Law 327-323). This study directly contradicts the argument of the American Psychiatric Association, therefore the medical evidence is divided on the issue. The Law Commission has advised that there should be several relationships that the courts must allow for secondary victims to be included within “spouse; (b) parent; (c) child; (d) brother or sister; (e) cohabitant (for more than 2 years)” (Law Commission Report no.249 ‘Liability for Psychiatric Illness’ 1998). It can be seen that the Law Commission’s approach is far more just and logical than the decision taken in Alcock.

Proximity

The victim must have sufficient proximity in time, space and perception to the incident that injured the secondary victim (Alcock v Chief Constable of South Yorkshire Police (1991)). The reality of the proximity mechanism is that one must witness the event which harmed the primary victim with their own unaided senses (not through the TV, radio or third party). Lord Keith argued that witnessing an event on TV or radio "did not create the necessary degree of proximity” (Ibid). Lord Acker agreed that “it would not be reasonably foreseeable to the defendant that those watching on television would suffer psychiatric illness” (Ibid). While it does seem controversial to limit claims this much on the basis of proximity without the benefit of hindsight, one could see why the judges made this decision for policy reasons fearing of floodgates and fraudulent claims.

Interestingly, Corbett argues that “the reasoning (concerning proximity) offered by the judges in Alcock does not make much sense” (Val Corbett, 'Tort Liability for Psychiatric Damage - Nothing-to Fear?' [1999] 7(78) Irish Law Review 78-95). Furthermore, Corbett has raised some valid concerns with regards to fact that their lordships expressly excluded the witnessing of an event on television as a valid claim. However, one needs only to look at the surge of happiness that fans get from a game when a goal is scored, so it stands to reason that equally powerful emotions of trauma can be felt through indirect perception. Mullaney and Handford have also commented on proximity arguing that “to focus on hours and minutes in this situation is fallacious; it cannot be asserted that the trauma of viewing a dead child is any less horrific after eight hours or nine hours than two” (Mullaney and Handford, Tort liability for psychiatric damage (Sweet & Maxwell, 1993)). Assuming that a psychiatric illness that may occur from witnessing a dead child (or having to identify one within twenty-four hours at a makeshift morgue, such as in Alcock) would dissipate within hours is narrow-minded and shows a significant lack of understanding by the court. Notably, in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455, Lord Steyn said that the Alcock mechanisms are a “patchwork quilt of distinctions which are quite difficult to justify”. Considering that the courts in England and Wales have had trouble finding a middle ground between fairness and valid policy concerns, it is rational to look to other juristictions for inspiration. In Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35 similar issues were raised about proximity regarding psychiatric injury. As Gummow and Kirby JJ point out, “to treat those who directly perceive some distressing phenomenon or its aftermath as the only persons who may recover for negligently caused psychiatric harm is productive of anomalous and illogical consequences” (Ibid). Other jurisdictions, similar to the English and Welsh legal system, have found ways to both treat victims fairly and prevent fraudulent claims. Therefore, the English and Welsh systems ought to review the proximity mechanism of Alcock for the sake of efficiency and justice.

Crucially, Corbett has proposed changes to the established mechanisms, such as:

“(a) The plaintiff must prove that he is suffering from a psychiatric illness;

(b) The policy limitations placed on secondary plaintiffs must be abandoned;

(c) Proof that the defendant caused the damage must be established on the principle of reasonable foreseeability” (Val Corbett, 'Tort Liability for Psychiatric Damage - Nothing-to Fear?' [1999] 7(78) Irish Law Review).

These proposed changes are far more fair and rational when compared to the current mechanisms. However, it is debatable how, practically, the law can be changed to suit this new model. Lord Wilberforce has argued that such an extension of liability is for the legislature to debate and decide, and is not a function of the courts (McLoughlin v OBrian [1983] 1 AC 410). Lord Wilberforce’s argument has merit as it seems the courts have a fear of opening the floodgates. As Goodhart argues, "fear is an unsatisfactory foundation on which to build a legal doctrine" (A Goodhart, 'Shock cases and the areas of risk' (1953) 14 Modern Law Review 23). In conclusion, it is clear that the Alcock judgment did clarify the law - it would be illogical to say otherwise. However, Alcock’s clarification of the law has created a precedent were the judgments that follow this particular decision are arguably unjust and create the need for the law to be revised.