#3547 - Nervous Shock - Tort Law

Nervous Shock

• Generally: recoverable in exceptional circumstances only, though courts are slow to accept it as head of damage for which tort of negligence could compensate scope of recovery severely restricted

• Psychiatric Injury

1. Excluded: grief or sorrow (except for claim for bereavement in damages)

2. Included:post traumatic stress disorder symptoms: preoccupation w/event, intrusive memories, increased arousal, sleeping difficulties, irritability, outburst of anger, over-reaction to reminders of event, personality change etc.

• Victims

1. Primary – suffers psychiatric injury after being directly involved in accident or being within the zone of danger and is either:

1. Persons to whom physical injury is a foreseeable consequence of D’s negligence

• Page v Smith–collision b/w cars, no physical injury to C but within hours of coming home felt obviously exhausted, claimed accident caused the return of Chronic Fatigue Syndrome from which he suffered in mild form for past 20 years. Unlikely he’d beable to ever work again. Lord Lloyd for majority in HL held that:

1. where physical injury to C was a foreseeable consequence of D’s negligence, C is also a primary V for purposes for the law on psychiatric injury

2. b/c in cases of physical injury to primary Vs, D is under duty not to cause him foreseeable physical injury, same applies to psychiatric injury - to be treated as one type of damage for purposes of foreseeability so in psychiatric injury cases primary V placed in foreseeable physical danger won’t have to prove psychiatric injury was also foreseeable + decision to conflate 2 types of injury potentially reduced impact of Wagon Mound foreseeability in PI cases.

• Bailey & Nolan: both principles should be discarded & replaced w/clearer, more rational ones. In the mean time courts should continue to distinguish Page where circs are sufficiently different & its application would cause injustice.

1. C’s presence in area of foreseeable physical risk shouldn’t ensure her classification as primary V for purposes of liability for psychiatric injury. Instead primary Vs should be defined as all those who suffer psychiatric injury as a result of death, injury, imperilment of another. Would ensure criteria for secondary Vs laid down in Alcock would apply in all cases where rationale for those criteria is satisfied so that attempts to limit primary V category to those in the area of foreseeable physical risk would be doomed to fail.

2. Psychiatric & physical injury should be regarded as different types of damage so that in all primary Vs cases it would be required for psychiatric injury to be foreseeable in a person of ordinary fortitude, unless D knew or should have known of C’s particular suspectibility (apparently correct app of thin skull rule!)

NB: there are many signs in both judiciary & Law Commission that Page v Smith won’t last, though Lords in Rothwell preferred to “leave it for another day”.

2. put in fear

• Rothwell v Chemical and Insulating(no)-primary Vs don’t include employees exposed to asbestos through negligence of employer who suffered depression as a result of fear of contracting mesothelioma, but didn’t actually contract it.

3. a rescuer/group of rescuers who fear for own safety at the event

• White v CC of South Yorkshire Police - police officers suffered psychiatric illness after Hillsborough disaster, unsuccessful claim for psychiatric harm; rescuers as a group can’t claim unless they fear for own safety while at the scene of the event

• Difficulty in deciding who’s a rescuer and who’s a mere bystander + police shouldn’t be given compensation out of public funds.

4. Regards himself as involuntary cause of V’s death/accident etc.

• W v Essex Court-LA assigned to parents a foster child who sexually abused their children; didn’t tell them about it; claim successful = Cs felt guilt at having through no fault of their own exposed their children to risk of sexual assault were primary Vs.

2. Secondary – someone neither physically injured nor threatened with injury(Page v Smith). Foreseeability of psychiatric injury is necessary but not sufficient.

• Criteria

1. C wasn’t usually suspectible to psychiatric harm of the kind in question

• an unduly sensitive person won’t recover unless a person of normal fortitude would have suffered shock under same circumstances, in which case can recover for the full loss

• thin skull rule doesn’t apply

2. psychiatric harm occurred through ‘shock’

• Lord Ackner:a sudden appreciation by sight or sound of a horrifying event which violently agitates the mind

• shock doesn’t have to be induced by a single catastrophic event

3. C was in physical proximity to the accident or its aftermath: either present at the scene or arrived in the immediate aftermath of death or injury occurring

• McLouglin v O’Brian- C learned her husband & kids had motor accident, told at hospitaldaughterdied, saw husband in distressed condition; claim successful b/c came within immediate aftermath. Speeches involved real divergence on the role of policy & its relationship to foreseeability.

Lord Wilberforce: foreseeability must be accompanied & limited by judgment as to persons who ought, acc to standards of value/ justice, to have been in D’s contemplation. B/c shock is capable of affecting such wide range of people, need to place some limitation upon extent of admissible claims. Consider 3 elements in any claim:

1. Class of persons whose claims should be recognised

2. Proximity of such persons to accident – close in time & space

3. Means by which shock is caused

Lord Bridge – shouldn’t draw hard & fast lines of policy. E.g. mother who thinks husband & child are @ hotel where there was fire, learns about it from newspaper &sees pics of unidentifiable Vs, is told her family have perished, suffers acute psychiatric injury. It’s undeniable such injury is foreseeable & it would be unjust if the fact she didn’t physically see the accident/immediate aftermath would stop her from recovering.

• Alcock v CC of South Yorkshire- relatives & friends of spectators crushed to death at football stadium brought claims; some witnessed it on the ground, others through TV, others suffered from fear of loved ones being killed, others from body ID-ing at morgue; all suffered more than one condition, incl. depression. Only Cs on the ground successful.

• Teff: should focus much more on relationship b/w C & primary accident victim and much less on factors like physical proximity & the way in which they’ve become aware of it.

1. Spectre of unrestricted liability would be better safeguarded by paying closer regard to causes of psychiatric injury&threshold recovery period.

2. No need for categorical classificatory approach (mother, relative, rescuer) –key consideration: whether C ought to have been in contemplation of D as someone who could suffer psychiatric illness. As long as distinction b/w nervous shock & grief, sorrow is maintained, this approach would be viable.

3. From med perspective, crucial determinant is the nature of C’s relationship w/V. Traumatic stimulus causes 2 types of mental reaction: primary (fear, anger, grief, shock) & secondary (longer lasting). In med usage, nervous shock is confined to primary one. Consensus of med opinion - lasting damage doesn’t occur in normal individuals as a result of emotional shock, however severe. Equally, some evidence that imagination of accident can be more gruesome & have worse effect than witnessing it. The law doesn’t accord w/this.

4. Closeness of relationship shouldn’t be understood as confined to particular family relations but be taken to imply any relationship where degree of intimacy in fact is such as to provoke a recognisable psychiatric injury.

5. Even if proximity to the accident + its direct perception were disregarded, floodgates wouldn’t open b/c:

1. the strain of reliving it through adversarial process is intimidating & med advice may well be not to pursue it

2. ...