Chapter 5 Answers to end-of-chapter questions

1. Why does the law distinguish psychiatric from physical injury? To what extent, if at all, is this distinction justifiable?

Lord Steyn in White v Chief Constable of South Yorkshire Police [1998] suggests four reasons as to why a distinction is drawn between physical and psychiatric injury:

• Evidential problems: the difficulties in drawing the line between psychiatric illnesses and mere grief, anxiety etc.
• The view that allowing claimants suffering psychiatric injury to sue may act as unconscious disincentive to them recovering from their illnesses.
• ‘Floodgates’ concerns about a significant increase in the scope of tort liability if recovery for psychiatric injury was not limited.
• The potential unfairness to the defendant of imposing damages out of all proportion to the negligent conduct.

Do you agree with these reasons? Have a look back at the counterpoint box in section 5.3 to see what we think.

2. What is the distinction between primary and secondary victims and does it produce defensible consequences?

The modern day articulation of ‘primary’ and ‘secondary’ victims – that is a factual distinction between, on the one hand, someone who was physically endangered by the defendant's actions and who then suffers psychiatric injury as a result and, on the other, someone who suffers psychiatric injury through witnessing others being endangered, stems from Lord Oliver's opinion in Alcock v Chief Constable of South Yorkshire Police [1992].  

THE TRADITIONAL DISTINCTION BETWEEN PRIMARY AND SECONDARY VICTIMS
PRIMARY VICTIMS	SECONDARY VICTIMS
No policy considerations to limit the number of claimants.	Policy used to limit the number of claimants.
Physical injury must be foreseeable; however psychiatric injury itself need not be. No need for the claimant to be of ‘ordinary fortitude’.	Psychiatric harm must be foreseeable in a person of ‘ordinary fortitude’ in the same circumstances as the claimant.
Application of Page v Smith – is the claimant in the ‘zone of danger’?	Application of Alcock control mechanisms. the class of persons whose claim should be recognized; the proximity of the claimant to the accident; the means by which the shock is caused.

However, the distinction between primary and secondary victims is not as clear cut as this table suggests. Compare the different interpretations of 'primary victim' by Lord Oliver in Alcock and Lord Lloyd in Page v Smith [1996]. More recently the primary victim category has been extended to include the assumption of responsibility cases, including the ‘stress at work’ case law. The articles by Paula Case and Rachael Mulheron (listed in the further reading in Chapter 5) are good places to start if you want to look at this in more detail.

Does it produce defensible consequences?

The lack of precision as to who is a primary or (less often) a secondary victim is problematic. Though we may consider any such distinction unsatisfactory, if we are to continue to distinguish primary and secondary victims, it is important that we define these terms with a measure of certainty. It is unclear why secondary victims should be required to scale more, and higher, hurdles in order to be able to recover. See further Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015], which confirmed a strict approach to the control mechanisms for secondary victims, particularly in cases of clinical negligence.

There have been growing calls for legislative intervention. Such reforms have been introduced in other Commonwealth jurisdictions, most notably in New South Wales where a defendant who negligently kills, injures, or puts in peril another person is liable for any psychiatric harm suffered by any ‘member of the family’ who witnesses the incident in question, and by the parent or spouse of the person involved in the accident whether or not they were present at the scene.

In 1998 the Law Commission in its Report on Liability for Recovery for Psychiatric Illness suggested that reasonable foreseeability alone should not be sufficient to ground a claim and that liability to secondary victims should continue to be restricted. However, it also suggested that the decision in Alcock should be modified to restrict the impact of its 'control mechanisms' and that the differences between the primary and secondary victim categories should be reduced. In particular, the Law Commission recommended that a secondary victim should no longer have to show proximity in terms of time and space and perception: ‘how may hours after the accident the mother of an injured child manages to reach the hospital should not be the decisive factor in deciding whether the defendant may be liable for the mother's consequential psychiatric illness’ ([6.10]). Rather, it considered that claims could most effectively be limited through the requirement of a close tie of love and affection. To this end, the Law Commission recommended a fixed list of relationships where a close tie of love and affection is conclusively proved - including parents, children, spouses, cohabitees and siblings - to avoid intrusive evidence being gathered by defendants eager to avoid liability. Those not included on the list would still need to establish such a tie in the usual way. In addition, the Law Commission recommended the abolition of the requirement of a sudden shock so as to include negligently inflicted psychiatric injury that had developed over a number of years (for example, by a long-term carer looking after someone who had been injured by the defendant's negligence), and a change to the present law so that liability could arise where the defendant's actions in imperilling themselves caused the claimant's psychiatric injury.

3. Does the law relating to psychiatric damage apply coherent principles?

This essay question requires you to bring together the issues raised in the previous questions. As with all essay questions it is important that you establish your argument or thesis at the beginning of your answer.

It is widely agreed by both academic commentators and judges that the law in this area has developed in an unsatisfactory way. Lord Steyn has described this area of law is 'a patchwork quilt of distinctions which are difficult to justify' (White at 500). Similarly, Lord Hoffmann remarked in White that 'the search for principle' in this area of law has been 'called off'. Even the Law Commission recognised that the law in relation to recovery for negligently caused psychiatric injury has 'taken a wrong turn' ([4.2]). Too much appears to turn upon the 'primary'/'secondary' victim distinction, and the restrictive approach to actions by those deemed to be in the latter category has, arguably, led to unjust results.

A basic answer will then go through the additional hurdles necessary to establish liability and will discuss the reasons given as to why these are required. It should also examine the Law Commission recommendations and whether these would make the law more or less 'coherent' and ways in which the courts have attempted to address this in the subsequent (i.e. post-Hillsborough) case law.

Stronger answers will consider whether we can justify placing limitations on recovery for those who suffer psychiatric injury considering that we do not apply such or similar limitations in respect of physical injuries.  Even if we do consider that psychiatric injury does require a different approach (for example, for the reasons given by Lord Steyn in White), there is still a question of whether English law is correct in imposing the hurdles it does, where it does.