Compensation For Psychiatric

Injury- Requirements,
Restrictions and
Recommendations
Psychiatric harm is a condition where an individual suffers
psychiatric illness as a consequence of anothers negligent actions
or omissions. Claimants must prove that their symptoms reflect a
recognized psychological disorder1 and that the defendant owed
them a duty of care by: establishing the existence and breach of a
duty, demonstrating causation between the breach and illness, and
proving that the illness was not a remote consequence of the
breach.2
Restrictive measures in this area of tort are due to the fear of the
floodgates opening, resulting in an overabundance of claims. Other
reasons include fear of excess litigation, fraudulent claims3,
insurance burdens, and concern that compensation will prove as a
disincentive for people to enter rehabilitation. These policy concerns
may be overstated, and the laws message appears to be that
mental and emotional well-being is less significant than physical
well-being.4 This essay is concerned with modern psychiatric injury
cases commencing with McLoughlin v OBrian5, and explores the
issues and developments in this area of tort.
1 M Lunney and K Oliphant, Tort Law: Text and Materials (4th edn,
OUP 2010)p.337
2 Harvey Teff, Liability for psychiatric illness after Hillsborough,
[1992] 12 OJLS
3 Harvey Teff, Liability for psychiatric illness after Hillsborough,
[1992] 12 OJLS
4 Harvey Teff, Liability for Psychiatric Illness: Advancing Cautiously,
[1998] 61 MLR
5 McLoughlin v OBrian [1983] 1 AC 410 (HL)
1

[TORT LAW- PSYCHIATRIC INJURY ESSAY]

Classifying plaintiffs
The distinction of claimants came about in Alcock v Chief Constable
of South Yorkshire6, where Lord Oliver categorized psychiatric
illnesses into two categories: primary victims were those involved as
a participant in the event from which the claim arose. Secondary
victims witnessed the injury caused to others and were not
personally threatened or directly involved. A primary victim is able
to claim upon proving that the risk of suffering injury was reasonably
foreseeable, a secondary victim is subjected to a number of
restrictive controls in addition to the foreseeability test:7 proving a
close tie of love and affection to the primary victim, perception of
the event by his own unaided senses, proximity to the event or its
immediate aftermath (temporally and physically) and that he is a
person of reasonable fortitude8. The proximity requirements are
defined vaguely, making it difficult for the judges to interpret the
meaning of these requirements, therefore introducing an element of
subjectivity in their interpretations. The imposition of additional
proximity requirements for secondary victims is excessive as the law
attempts to limit claims as a policy requirement, evident in Page v
Smith9 where Lord Lloyd suggested the necessity of a distinction
between victims in all psychiatric injury cases.
A further issue of classification was the differences in definitions: in
Alcock10, Lord Oliver considered rescuers and involuntary
participants as primary victims, whereas in Page11 Lord Lloyd
confined the category to those directly involved in the accident
6 Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 (HL)
7 FA Trindade, Nervous shock and negligent conduct, [1996] 112
LQR
8 Danuta Mendelson, The History of Damages for Psychiatric Injury,
[1997] 4:2 Psychiatry, Psychology and Law
9 Page v Smith [1996] AC 155 (HL)
10 Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 (HL)
11 Page v Smith [1996] AC 155 (HL)
2

who were within the range of foreseeable physical injury. This

inconsistency complicated judgments in subsequent cases such as
Frost v Chief Constable of South Yorkshire12 and Hegarty v EE
Caledonia13. In Hegarty, the claim failed because Lord Lloyds
definition of a primary victim was applied, and although the
claimants fear of injury was genuine, he was not actually in danger
and therefore was denied damages. However, if Lord Olivers
definition was applied the claimant may have been regarded as an
involuntary participant in the zone of danger and therefore would be
able to claim successfully. In Young v Charles Church14, the plaintiff
was in the zone of foreseeable physical injury and developed
psychiatric illness upon witnessing the death of his colleague15. This
case created a disagreement as to whether he was a primary or
secondary victim: Evans LJ declared him a primary victim following
the definition in Page, but Hobhouse LJ claimed he was a secondary
victim as he witnessed the injury on another.
This restrictive distinction appears to undermine mental illnesses 16,
and the law also ignores the fact that psychiatric injury does not
have to stem from being exposed to physical injury, therefore
primary victims may not necessarily have to be in the zone of
danger of physical injury in order to develop a psychiatric condition.
The classification of victims has drawn severe criticisms from the
Law Commission (LC) and academics alike. The LC recommended
attaching no practical significance as to whether the plaintiff is a
primary or secondary victim, as they believe that the distinction is
more of a hindrance than help.17 Although the law attempts to
12 Frost v Chief Constable of South Yorkshire [1999] 2 AC 455
13 Hegarty v EE Caledonia Ltd [1997] 2 Lloyds Rep. 259 (CA)
14 Young v Charles Church (Southern) Ltd [1998] 39 BMLR 146 (CA)
15 Harvey Teff, Liability for Psychiatric Illness: Advancing
Cautiously, [1998] 61 MLR
16 Law Commission, Liability for Psychiatric Illness (Law Com No
249, 1998)
17 Law Commission, Liability for Psychiatric Illness (Law Com No
249, 1998)
3

[TORT LAW- PSYCHIATRIC INJURY ESSAY]

distinguish between victims, it does not provide a clear distinction

between them especially when concerning third parties. If this is not
remedied, the persisting uncertainty may potentially lead to a flood
of claims from claimants unsure of their eligibility to recover.
Retaining the categories may prove useful to understand the degree
of involvement of the plaintiffs in relation to the accident, but the
classification should not be the basis on which damages are
awarded. The court should evaluate the plaintiffs situation and
severity of their illness, and this can be done with an increased
understanding of the medical perspective of psychiatric injury.
Degree of Relationship
Since Alcock, claimants were required to prove a close tie of love
and affection with the primary victim. This included spouses,
children or parents, and others would have to prove not only a close
tie but also that the injury suffered was grave enough to be
compensated.
The LC18 proposed a fixed list of relationships, where a close tie
would be presumed and claimants outside the list would have to
prove the existence of a close tie. This reform recognizes siblings
and cohabitants, and although this increases the amount of
prospective claimants, the argument of the floodgates of
prospective claims increasing may increase. It is difficult for people
other than parents or spouse to recover currently19, but the
implementation of the LCs recommendation can encourage others
to claim.
Although the proposed fixed list recognizes a range of relationships
and allows those outside the list to prove a close tie to the victim, a
18 Law Commission, Liability for Psychiatric Illness (Law Com No
249, 1998)
19 KJ Nasir, Nervous shock and Alcock: The Judicial Buck Stops
Here, [1992] 55 MLR
4

fixed list assumes that a close tie exists in all the relationships
stated, which may not be true. This may lead to a flood of claims
where several relatives claim under the same case due to the fixed
list identifying their relationship. The judges should base their
decisions on a case-by-case basis rather than adhering to a fixed
list, as it may be possible that a friend may be affected more than a
parent in some cases, but the friend would have to prove the
strength of their relationship whereas the parent would not. The
degree of care should be viewed in the context of the surrounding
circumstances, nature of the accident, and the seriousness of the
injury to the primary victim.20
In Alcock, the brother of a primary victim could not prove the
closeness of their relationship, and failed to claim. This led to the
question of how horrific an event needed to be to elicit a claim,
considering that relatives of primary victims of Hillsborough failed to
recover damages even though they watched the events unfold21.
The LC

22

suggested that where a close tie is established, the

additional requirements should be eliminated. It can be said that

this recommendation is valid because if a plaintiff has proved a
strong tie with the victim, it may be unethical to question the nature
of their relationship at a time when the plaintiff is emotionally
vulnerable. Long-time carers are not eligible for compensation as
they suffer psychiatric injury as a gradual process. If the LCs
recommendation were implemented, the demonstration of a close
tie at the onset of the psychiatric illness would suffice.23
20 Paula Giliker, A New Head of Damages for Mental Distress in
the English Law of Torts, [2000] 20 Leg. Stud.
21 Michael A Jones, Liability for Psychiatric Illness More Principle,
Less Subtlety? , [1995] 4 Web Journal of Current Legal Issues
22 Law Commission, Liability for Psychiatric Illness (Law Com No
249, 1998)
23 Law Commission, Liability for Psychiatric Illness (Law Com No
249, 1998)
5

[TORT LAW- PSYCHIATRIC INJURY ESSAY]

They recommended24 no legislative reform with regards to rescuers,

bystanders, employees or involuntary participants, and it is
submitted that such cases would not benefit from the application of
a standard rule.
In Attia v British Gas25, the plaintiff claimed for psychiatric illness by
witnessing a fire that caused damage to her house. Her successful
claim demonstrates the law valuing property rights over personal
relationships. A person claimed despite facing no personal risk, but
one cannot claim if their relative is seriously injured on grounds of
proximity proving a close tie. This highlights an incongruity in the
law, and reiterates the notion of physical damage being more
valued.

Proximity Requirements
Additional to proving a close tie to the primary victim, secondary
victims have to satisfy certain proximity requirements:
Temporal proximity requires the claimant to be present at the scene
during the accident or its immediate aftermath. In Alcock26,
plaintiffs who were not on the ground at the time of the disaster did
not satisfy this requirement, and identification of the bodies at the
mortuary nine hours later was considered outside the scope.
However, in Jaensch v Coffey27, Deane J said that the aftermath
persisted so long as he remained in the state produced by the
accident up to and including immediate post-accident treatment.
The distinction between aftermath and immediate aftermath is
arbitrary and without definition, which then leads it to become
subjective and left to the judges discretion. Even if the victim was
24 Law Commission, Liability for Psychiatric Illness (Law Com No
249, 1998)
25 Attia v British Gas [1987] 3 All ER 455
26 Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 (HL)
27 Jaensch v Coffey (1984) 33 SASR 255 (SC Australia)
6

tended to by the time the plaintiff saw him, it should not undermine
the fact that the plaintiff may still suffer from psychiatric injury.
Physical proximity requires the claimant to be present at the scene
of the event or its immediate aftermath. This is closely related to
temporal proximity. An inconsistency in the law is highlighted in
Hevican v Ruane28, where Mantell J held that a plaintiff who
identified his sons body at the mortuary was entitled to claim for
psychiatric illness although he was not present at the scene of the
accident or its aftermath.
Direct perception requires the claimant to perceive the event or its
aftermath by their own sight or hearing. Although simultaneous
broadcasts have not been ruled out, watching the event on
television such as in Alcock, was not equivalent to being within sight
and hearing of the event or its immediate aftermath.29 However, in
Ravenscroft v Rederiaktiebolaget Transatlantic30, a mother who
discovered that her son was dead upon arriving at the hospital was
entitled to claim, even though she hadnt seen her sons body. Lord
Wilberforce said in McLoughlin31 that these elements are inherent in
any claim, and are necessary limitations whereas Lord Bridge32
expressed concern about this approach freezing the law in a rigid
position and stressed the need for incrementalism.
Above all, the proximity requirements highlight inconsistencies and
double standards in the law, and are not a necessity, as the law
would gain clarity in their absence. Their purpose is to act as
effective constraints, but it can be argued that they are redundant
as it is possible for someone to suffer psychiatric illness without
28 Hevican v Ruane [1991] 3 All ER 65 (QB)
29 Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 (HL)
30 Ravenscroft v Rederiaktiebolaget AB Transatlantic [1992] 2 All ER
470 (CA)
31 McLoughlin v OBrian [1983] 1 AC 410 (HL)
32 McLoughlin v OBrian [1983] 1 AC 410 (HL)
7

[TORT LAW- PSYCHIATRIC INJURY ESSAY]

being present at the scene of the accident, and the medical

community endorses this view.33

Shock requirement
Under the current law, psychiatric injury must be a result of sudden
shock; Lord Ackners definition of shock was the sudden
appreciation by sight or sound of a horrifying event, which violently
agitates the mind34 It is submitted that this is a narrow definition of
what constitutes shock, hence, utilizing this definition of shock
should be discontinued and replaced with a medically compatible
definition.
The LC proposed abandoning the shock requirement for a
recognizable psychiatric illness after presenting arguments for and
against retaining it35. In Sion v Hampstead Health Authority36, the
plaintiff was unable to claim for psychiatric illness caused by siting
at his sons bedside for two weeks watching his condition
deteriorate leading to death, because as the judges held, the death
was expected rather than surprising. The law should be evenhanded
and remove the shock requirement, and instead evaluate the
severity of the illness suffered in cases. This enables those suffering
as a result of gradual exposure to claim, and eradicates one of the
several double standards. Courts appear to have stuck with the
shock requirement solely as a policy requirement; there is no such
restriction in the case of physical injury and therefore this this
superfluous requirement should be abandoned.

33 Nigel Eastman, Assessing for psychiatric injury and nervous

shock, [1995] Advances in Psychiatric Treatment (APT)
34 Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 (HL)
35 Law Commission, Liability for Psychiatric Illness (Law Com No
249, 1998)
36 Sion v Hampstead Health Authority [1994] EWCA Civ 26

Medical perspective
In Dickie v Flexthorne Glenrothes37, the difficulty of diagnosis was
recognized as each doctor had a different opinion, demonstrating
subjectivity in this area of the law from a medical perspective. In
Hevican38 and Ravenscroft39, judgments considered the medical
aspect by using diagnostic criteria including the DSM-IV-TR and ICD10, and although they are more scientifically consistent than before,
such manuals have been criticized for being vague and leading to
conflicting diagnoses. They are criticized as being culturally biased,
as some illnesses (Neurasthenia) exist in the ICD-10 but not in the
DSM-IV40. However, it is impossible to widen the scope of psychiatric
illness to the extent where each and every illness is accounted for
so the DSM-IV-TR and ICD-10, as the most internationally recognized
manuals will suffice momentarily to establish psychiatric causation.
It can be argued that considering cultural illnesses will open the
floodgates as plaintiffs can claim for less-known illnesses, as they
have to prove that they are suffering from a recognized illness.
Seeing as the law is so policy driven, this is unlikely to happen to
maintain restrictions. 41 The laws restrictive nature is demonstrated
in White, where Lord Steyn said that the law couldnt compensate
for all emotional suffering even if it is acute and truly debilitating4243.
Establishing a psycho-legal relationship44 is important, and in order
for this area of the law to develop it is crucial for judges and
37 Dickie v Flexthorne Glenrothes [2009] Scot (D) 3/11 (Sheriff
Court, Kircaldy, 4 Sep 2009) [129]
38 Hevican v Ruane [1991] 3 All ER 65 (QB)
39 Ravenscroft v Rederi AB Transatlantic [1992] 2 All ER 470 (CA)
40 B. Evengard, R.S. Schacterle, and A.L. Komaroff, Chronic fatigue
syndrome: new insights and old ignorance, [1999] 246 Journal of
Internal Medicine
41 Ravenscroft v Rederi AB Transatlantic [1992] 2 All ER 470 (CA)
42 White v Chief Constable of South Yorkshire [1992] 2 AC 455 (HL)
43 Rachael Mulheron, Rewriting the requirement for a recognized
psychiatric injury in negligence claims, [2012] 32 OJLS

1
0

[TORT LAW- PSYCHIATRIC INJURY ESSAY]

psychiatrists to appreciate each others expert opinions. A judge

should trust a psychiatrists diagnosis, and a psychiatrist should
have sufficient knowledge of how the law functions.
Conclusion
In Bourhill v Young45, Lord Macmillan acknowledged a mental shock
may have consequences more serious than those resulting from
physical impact. The notion that psychiatric injury is worth
protecting has been widely endorsed, and although the law has
recognized psychiatric illness as a personal injury worth
compensating, the lack of development leads to the assumption
that the law does not perceive psychiatric illness to be as grave as
physical injury. Although the laws concerns are justified to an
extent, it can be said that in some instances their concerns are
exaggerated.
Jones suggested four reform options46, and the LCs report is most
consistent with the option of amending the most arbitrary rules, as
they proposed to amend certain aspects of psychiatric illness law,
but to leave the rest to develop by common law. Jones believes that
liability for psychiatric and physical illness should be treated the
same way to dissolve any inconsistencies between them47. Such a
drastic option is not ideal, therefore the law should take the third
option and improve its main problem areas. In considering the
administrative perspective with respect to how such claims are to be
paid for, concerns have been raised about a possible rise of the cost
of insurance premiums. Compensation should not be denied due to
44 Nigel Eastman, Assessing for psychiatric injury and nervous
shock, [1995] Advances in Psychiatric Treatment (APT)
45 Bourhill v Young [1943] AC 92
46 Michael A Jones, Liability for Psychiatric Illness More Principle,
Less Subtlety?, [1995] 4 Web Journal of Current Legal Issues
47 Michael A Jones, Liability for Psychiatric Illness More Principle,
Less Subtlety? , [1995] 4 Web Journal of Current Legal Issues

10

the fear of costs, as this suggests the system is more concerned

about costs than compensating victims. The arbitrary nature of the
current law encourages litigation, as claimants are uninformed
about precise conditions of a successful claim. To remedy this, a
strong psycho-legal relationship that states clear conditions of a
successful psychiatric claim should be established.

Bibliography
Primary Sources
Cases
McLoughlin v OBrian [1983] 1 AC 410 (HL)
Page v Smith [1996] AC 155 (HL)
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310
(HL)
Hevican v Ruane [1991] 3 All ER 65 (QB)
Ravenscroft v Rederi AB Transatlantic [1992] 2 All ER 470 (CA)
White v Chief Constable of South Yorkshire [1992] 2 AC 455
(HL)
McCarthy v Highland Council [2011] CSIH 51
Hegarty v EE Caledonia Ltd [1997] 2 Lloyds Rep. 259 (CA)
Frost v Chief Constable of South Yorkshire [1999] 2 AC 455
Young v Charles Church (Southern) Ltd [1998] 39 BMLR 146
(CA)
Jaensch v Coffey (1984) 33 SASR 255 (SC Australia)
W v Essex CC [2001] 2 AC 592 (HL)
Palmer v Tees HA [2000] 2 LGLR 69 (CA)
Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792
(CA)
Greatorex v Greatorex [2001] 1 WLR 1970
Sion v Hampstead Health Authority [1994] EWCA Civ 26
Bourhill v Young [1943] AC 92
Hunter v British Coal Corporation [1998] 2 All ER 97
Dickie v Flexthorne Glenrothes [2009] Scot (D) 3/11 (Sheriff
Court, Kircaldy, 4 Sep 2009) [129]
Secondary Sources
Books
M Lunney and K Oliphant, Tort Law: Text and Materials (4th
edn, OUP 2010)

11

1
2

[TORT LAW- PSYCHIATRIC INJURY ESSAY]

Journals
Rachael Mulheron, Rewriting the requirement for a
recognized psychiatric injury in negligence claims, [2012]
32 OJLS
Harvey Teff, Liability for Psychiatric Illness: Advancing
Cautiously, [1998] 61 MLR
B. Evengard, R.S. Schacterle, and A.L. Komaroff, Chronic
fatigue syndrome: new insights and old ignorance, [1999] 246
Journal of Internal Medicine
Stephen Todd, Psychiatric injury and rescuers, [1999] 115
LQR
FA Trindade, Nervous shock and negligent conduct, [1996]
112 LQR
KJ Nasir, Nervous shock and Alcock: The Judicial Buck Stops
Here, [1992] 55 MLR
Harvey Teff, Liability for psychiatric illness after Hillsborough,
[1992] 12 OJLS
Paula Giliker, A New Head of Damages for Mental Distress in
the English Law of Torts, [2000] 20 Leg. Stud.
Harvey Teff, Liability for negligently inflicted psychiatric harm:
justifications and boundaries, [1998] 57 CLJ
Steve Hedley, Nervous shock: Wider still and wider, [1997]
56 CLJ
David Oughton and John Lowry, Liability to Bystanders for
Negligently Inflicted Psychiatric Harm, [1995] 46 NILQ
Basil Markesinis, Foreign Law Inspiring National Law, [2002]
61 CLJ
Nigel Eastman, Assessing for psychiatric injury and nervous
shock, [1995] Advances in Psychiatric Treatment (APT)
Michael A Jones, Liability for Psychiatric Illness More
Principle, Less Subtlety? , [1995] 4 Web Journal of Current
Legal Issues
Danuta Mendelson, The History of Damages for Psychiatric
Injury, [1997] 4:2 Psychiatry, Psychology and Law
Law Commission Reports
Law Commission, Liability for Psychiatric Illness (Law Com No
249, 1998)
Scottish Law Commission, Report on Damages for Psychiatric
Injury (Scot Law Com No 196, 2004)

12