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Published online by Cambridge University Press: 09 November 2009
The devastating impact that psychiatric illness can have on people's lives is beyond dispute. It would be absurd to contend that such harm is somehow intrinsically less serious than physical injury; indeed, over many years, medical research has pointed to the artificiality of characterising it as lacking physical manifestations. Its destructive potential is brought into sharper focus as mental attributes become ever more integral to everyday functioning. Yet, to this day, neither popular nor judicial opinion is noticeably receptive to a cause of action based on proof of a “recognised psychiatric disorder”, which is still often trivialised by the label “nervous shock”. This negative attitude is most apparent when claimants are not, or are not regarded as, the direct victims of someone else's conduct. The very notion of compensating people whose suffering derives from their reaction to the injuring of others often evokes surprise, indignation and disdain.
1 See Mullany, N.J. and Handford, P.R.M., Tort Liability for Psychiatric Damage, (1993) at pp. 27–31.Google ScholarCf. “There is no justification for regarding physical and psychiatric injury as different ‘kinds’ of damage“: Page v. Smith [1996] A.C. 155 at p. 190, per Lord Lloyd of Berwick.
2 For most practical purposes, a condition so categorised in the World Health Organisation's International Classification of Diseases and Related Health Problems (Tenth Revision, Vol. 1, 1993) (I.C.D.-10) or the American Diagnostic and Statistical Manual of Mental Disorders (4th Edition, 1994)(D.S.M.-I). Prominent among these conditions are Post-Traumatic Stress Disorder (P.T.S.D.), depressive illness and a range of anxiety states. P.T.S.D. is distinctive in that the diagnosis depends on exposure to an external and severely traumatic event, outside the range of usual human experience. It is characterised, inter alia, by “re-experiencing” that event. See further, Mullany, and Handford, , op. cit., at pp. 224–242Google Scholar and Law Commission, Liability for Psychiatric Illness (Law Com. Consultation Paper No. 137, 1995), Part III.
3 Cf. “Two propositions are agreed between Counsel. The first is that the term ‘nervous shock’ is shorthand for psychiatric illness caused by shock”: Sion v. Hampstead Health Authority (1994) 5 Med.L.R. 170 at p. 173. The term was first used in connection with psychological injury by a professor of surgery: Erichsen, J.E., On Railway and Other Injuries of the Nervous System (1866).Google Scholar It is no longer employed in medicine.
4 29 November 1991.
5 Frost v. Chief Constable of South Yorkshire Poliee [1997] 3 W.L.R. 1194.
6 Appleyard, B., “Living Dangerously in our Dreams”, The Independent, 26 July 1995.Google Scholar
7 See e.g. Lawson, N., “The cult of compensation”, The Times, 5 June 1996.Google Scholar
8 See, e.g. Nolan, V.E. and Ursin, E., “Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos”, (1982) 33 Hastings L.J 583, at p. 604.Google Scholar
9 Earengey, W.G., “The Legal Consequences of Shock”, reprinted in (1992) 60 Medico-Legal Journal 83, at p. 85.CrossRefGoogle Scholar This article first appeared in Volume 1 of The Medico-Legal and Criminological Review (1933). Earengey also suggested that the rule of evidence which until the mid-nineteenth century precluded direct testimony by plaintiffs could help explain the denial of a remedy for purely emotional suffering, since other witnesses would not have been able to give convincing proof of the plaintiffs state of mind. Ibid, at p. 84.
10 See, e.g. Victorian Railways Commissioner v. Coultas (1888) 13 App.Cas. 222.
11 The unwillingness of several appellate judges to concede the foreseeability of injury through “nervous shock” when cars collide at 30 miles per hour (Page v. Smith [1996] A.C. 155; [1994] 4 All E.R. 522, C.A.) might be seen as a recent example of the “‘pull yourself together’ school of legal analysis”: Jones, M.A., “Liability for Psychiatric illness-More Principle, Less Subtlety?” Web Journal of Current Legal Issues Yearbook 1995 (1995) 258, at p. 259.Google Scholar See also, n. 164 below.
12 See Howarth, D., Textbook on Tort (1995) at pp. 254–259Google Scholar and pp. 114–115 below.
13 Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310 and Page v. Smith [1996] A.C. 155. Leave to appeal to the House of Lords has been granted in Frost, op. eit., n. 5 above.
14 Ibid.
15 [1983] 1 A.C. 410.
16 [1992] 1 A.C. 310, at p. 418.
17 See Frost, op. cit., n. 5 above.
18 ibid. See Mullany, N.J., “Psychiatric damage in the House of Lords—Fourth time unlucky: Page v. Smith”, (1995) 3 J.L.M. 112Google Scholar; Trindade, F.A., “Nervous Shock and Negligent Conduct” (1996) 112 L.Q.R. 22Google Scholar, and pp. 111–114 below.
19 E.g., Alcock, text at n. 16, above, per Lord Oliver; M (a Minor) v. Newham London Borough Council [1995] 2 A.C. 633 at p. 664 per Bingham M.R. (C.A.); McLoughlin v. O'Brian [1983] 1 A.C. 410 at p. 431, per Lord Bridge; Hevican v. Ruane [1991] 3 All E.R. 65. See also Campbelltown City Council v. Mackay (1989) 15 N.S.W.L.R. 501 at p. 503 per Kirby P. and Coates v Government Insurance Office (NSW) (1995) 36 N.S.W.L.R. 1 at pp. 9–11, per Kirby P.
20 E.g. Mullany, and Handford, , op. cit., n. 1Google Scholar above; Jones, , op. cit., n. 11Google Scholar above, and Teff, H., “Liability for Psychiatric Illness after Hillsborough”, (1992) O.J.L.S. 440.CrossRefGoogle Scholar
21 Law Commission, Liability for Psychiatric Illness (1995)Google Scholar, Consultation Paper No. 137. See Burrows, A., “Liability for Psychiatric Illness; Where Should the Line be Drawn?”, (1995) 3 Tort L. Rev. 220.Google Scholar
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23 Ibid, at p. 95.
24 Mullany, and Handford, , op. cil., n. 1 above, at p. 304.Google Scholar See also Mullany, “Fear for the Future: Liability for Infliction of Psychiatric Disorder”, in Mullany, (ed.), Torts in the Nineties (1997).Google Scholar
25 Stapleton, , op. cil., n. 22 above, at p. 95.Google Scholar
26 Ibid.
27 Ibid., at n. 78.
28 Sometimes called “litigation neurosis”, or “accident neurosis”.
29 By doctors as well as lawyers. See, e.g., Page, H.W., Injuries of the Spine and Spinal Cord and Nervous Shock (1883).Google Scholar One early American view of “railway spine” was that “… cities and corporations are robbed of vast sums of money yearly by malingerers, aided by unscrupulous legal talent, and by ignorant or dishonest surgeons”: Judd, H., “The medico-legal aspect of concussion of the spine”, Journal of the American Medical Association: 1889; 13: 188CrossRefGoogle Scholar, at p. 194. See also Smith, H.W. and Solomon, H.C., “Traumatic neuroses in court” (1943) 30 Vancouver Law Review 87CrossRefGoogle Scholar, arguing for more restrictive liability to discourage the emergence or prolongation of neurotic symptoms in predisposed persons.
30 Ison, T.G., “Therapeutic significance of compensation structures” (1986) 64 C.B.R. 605Google Scholar, at p. 612. Perhaps wisely, in view of its ambiguous nature, Stapleton avoids the expression.
31 Where he justified the retention of artificial restrictions in the case of “secondary victims” by concern not to “open the door too wide”: [1996] A.C. 155, at p. 189.
32 To which Lord Lloyd also alluded in Page v. Smith: ibid.
33 Victorian Railways Commissioner v. Coultas (1888) 13 App. Cas. 222.
34 “Accident Neurosis” Brit. Med. J. 1, 919–925, 992–998 (1961). See below, at pp. 98–99. See also Hon, Rt. Sir. Lawton, F., “A Judicial View of Traumatic Neurosis” (1979) 47 Medico-Legal Journal 6.Google Scholar
35 See Mendelson, G., ”‘Compensation Neurosis’ Revisited: Outcome Studies of the Effects of Litigation”, Journal of Psychosomatic Research 39(6) 695–706CrossRefGoogle Scholar (1995), and see below, at pp. 98–99.
36 Ison, op. Cit., n. 30 above, at p. 616, n. 32. It is true that at the Court of Appeal stage in McLoughlin v. O'Brian, Stephenson LJ did invoke “beneficence”: “I derive some comfort from reflecting that to encourage such claims … would also do a grave disservice to many sufferers from nervous shock and mental injury, which may be exacerbated and prolonged or even made incurable by the anxieties of litigation”. [1981] Q.B. 599, at p. 616. However, a Lexis search of June 1997 reveals only 17 cases in which the expression “compensation neurosis” appears at all, and only three cases refer to “litigation neurosis”.
37 [1969] 1 W.L.R. 903.
38 Ibid., at p. 908.
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47 Evans, R.W., “The Effects of Litigation on Treatment Outcome with Personal Injury Patients”, (1994) American Journal of Forensic Psychology 12; 4: 19Google Scholar, 20–23, 30.
48 Cf. “… some patients will consciously minimize a history or symptoms of emotional illness because of embarrassment, shame or the wish to deceive and hide the condition from others …”: Hoffman, B.F., et al. The Emotional Consequences of Personal Injury (1992), at p. 114.Google Scholar
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50 Mullany, and Handford, , op. cit., n. 1Google Scholar above, at p. 314; Cane, P., Atiyah's Accidents, Compensation and the Law (5th edn., 1993), at p. 75.Google Scholar
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53 See n. 1, above.
54 Darwin, C., Expression of the Emotions in Man and Animals (1872).Google Scholar
55 Mendelson, D., “The Defendants' Liability for Negligently Caused Nervous Shock in Australia—Quo Vadis?”, (1992) 18 Monash Univ.L.Rev.16, at p. 23.Google Scholar
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57 van der Kolk, B.A. (ed.), Post-Traumatic Stress Disorder: Psychological and Biological Sequelae (1984).Google Scholar
58 Cf. Mullany, and Handford, , op. cit., n. 1 above, at p. 27Google Scholar, n. 69 and accompanying text.
59 As early as 1890, Irish judges were prepared to allow actions for purely psychiatric harm. See Bell v. Great Northern Railway Co. of Ireland (1890) 26 L.R.Ir. 428, at p. 431, where Palles C.B. criticised Victorian Railways Commissioner v. Coultas in the following terms'. “Further the judgment assumes, as a matter of law, that nervous shock is something which affects merely the mental functions, and is not in itself a peculiar physical state of the body. This error pervades the entire judgment”. Cf. Dulieu v. White & Sons [1901] 2 K.B. 669, at pp. 675–677 per Kennedy J.
60 [1925] 1 K.B. 141, at p. 154.
61 (1989) 15 N.S.W.L.R. 501, at p. 503.
62 “In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded”. [1996] A.C. 155, at p. 188, per Lord Lloyd.
63 Reilly and Reilly v. Merseyside Regional Health Authority [1995] 6 Med.L.R. 246 at p. 249, per Mann L.J. Emotions such as anxiety and “mere grief and sorrow” do not sound in damages: Blake v. Midland Ry. Co. (1852) 21 LJ.Q.B. 233; Hinz v. Berry [1970] 2 Q.B. 40. Cf. Nicholls v. Rushton (1992), The Times, 19 June.
64 E.g. Whitmore v. Euroways Express Coaches Ltd., (1984) The Times, 4 May; Brown v. Mount Barker Soldiers’ Hospital [1934] S.A.S.R. 128; Swan v. Williams (Demolition) Pty. Ltd. (1987) 9 N.S.W.L.R. 172.
65 Cf “Perhaps the best reason for refusing recovery for mere emotional distress is that, if one looks at the priorities for compensation, emotional distress ranks lower down the list than physical harm caused by impact and the recognised psychiatric damage that is the subject of ‘nervous shock’ cases”: Mullany, and Handford, , op. cit, n. 1 above, at p. 44.Google Scholar
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68 Cf. “… the main attraction of the German approach may … lie in the fact that it makes the seriousness of the harm the determinative factor rather than basing recovery on such fortuitous elements as the plaintiffs proximity to the scene of the accident or his familial relationship with the primary victim”: Markesinis, B.S., The German Law of Torts (1994, 3rd edn.), at p. 39.Google Scholar
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70 Under the American Psychiatric Association's classification of mental diseases or disorders, op. cit., n. 2 above, it is a diagnostic criterion for P.T.S.D. that the disturbance lasts for more than one month: American Diagnostic and Statistical Manual of Mental Disorders (4th edition, 1994) para. 309.81, p. 424.
71 [1991] 2 All E.R. 293 (junior doctor's working hours). See also Petch v. Customs and Excise Commissioners [1993] I.C.R. 789.
72 [1995] 1 All E.R. 737 (overburdened social worker).
73 A. Sprince, “Page v. Smith-being ‘primary’ colours House of Lords’ Judgment”, (1995) 11 P.N. 124, at p. 126.
74 Mughal v. Reuters Ltd. [1993] I.R.L.R. 571.
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76 Race Relations Act 1976, s. 57(4); Sex Discrimination Act 1975, s. 66(4).
77 Most recently the Protection from Harassment Act 1997. Cf. Criminal Justice and Public Order Act 1994, s. 154; Telecommunications Act 1984, s. 43, and the Malicious Communications Act 1988, s. 1(1).
78 Khorasandjian v. Bush [1993] Q.B. 727-overruled in this respect by Hunter v. Canary Wharf Ltd. [1997] A.C. 655 (Lord Cooke of Thorndon dissenting). In Khorasandjian v. Bush, the telephone calls were deemed actionable as nuisance on grounds of inconvenience and annoyance, and would have been even in the absence of any potential threat to health by virtue of their content: Dillon L.J. [1993] Q.B. 727, 735. Cf. Burnett v. George [1992] 1 F.L.R. 525.
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82 Protection from Harassment Act 1997, s 3(2).
83 Lord Lloyd, Lord Hoffman and Lord Hope concurring.
84 Hunter v. Canary Wharf Ltd. [1997] A.C. 655, 693. Emphasis added.
85 Ibid., at 691–692.
86 Courts and Legal Services Act 1996, s. 8.
87 “In Restraint of Tort”, op. cit., n. 22 above, at p. 83.
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98 Just as—such is the fluidity of the jurisprudence—Page v. Smith almost casually discarded, for primary victims, the control mechanisms seemingly dictated by the “developed principles” in this particular pocket of negligence law. See Mullany, N.J., “Psychiatric damage in the House of Lords-Fourth time unlucky: Page v. Smith” (1995) 3 J.L.M. 112.Google Scholar
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102 (1984) 155 C.L.R. 549, at p. 584. See further, pp. 117–118 below.
103 Ibid, at p. 607.
104 (1995) 36 N.S.W.L.R. 1, per Gleeson C.J. and Clarke J.A.
105 Jaensch, n. 94 above, at pp. 608–609.
106 Coates. n. 19, at pp. 10–11.
107 Quayle v. State of New South Wales (1995) Aust. Tort Reps. 81–367.
108 “Recovery for Psychiatric Injury by Report: Another Small Step Forward”. (1996) 4 Tort L. Rev. 96, at p. 101. Mullany points out that among the causes of P.T.S.D., the American Psychiatric Association's classification (D.S.M.-IV) includes “learning of a traumatic event.
109 (1995) 36 N.S.W.L.R. 1, at p. 11.
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113 Cf. “… facts more subtle than the compelling ones alleged in the complaint” would require lines of demarcation “in the absence or reduced weight of some of the [indicative] factors.” Dillon v. Legg (1968) (Calif. S.C.) 441 P.2d 912, at p. 921, per Tobriner J.
114 [1996] A.C. 155, at p. 189, per Lord Lloyd.
115 Ibid., at p. 184.
116 Which Lord Lloyd saw as “of cardinal importance”: ibid.
117 For primary victims, see e.g. Brice v. Brown [1984] 1 All E.R. 997, at pp. 1006–1007, per Stuart-Smith J. Cf. Dooley v. Cammell Laird & Co. Ltd. [1951] 1 Lloyd's Rep. 271; Chadwick v. British Railways Board [1967] 1 W.L.R. 912 and Attia v. British Gas Pic. [1988] Q.B. 304. See also Bourhill v. Young [1943] A.C. 92; King v. Phillips [1953] 1 Q.B. 429, at p. 441, and Overseas Tankship (U.K.) Ltd. v. Marts Dock & Engineering Co. Ltd. (The Wagon Mound (No. 1)) [1961] A.C. 388, at p. 426.
118 See Law Com. Consultation Paper No. 137, op. cit., n. 2 above, at paras. 2.10 and 5.13.
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126 Ibid., at p. 1213.
127 Except for the appellant who was not on duty at the ground, but at the local hospital.
128 See especially Judge L.J. (dissenting).
129 Frost, at p. 1203.
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135 Ibid., at p. 163. Cf. “… the supposed rule that only relatives can be heard to complain is apparently a transposition of what was originally a humane and ameliorating exception to the general denial that damages could be had for nervous shock. Close relatives were put in an exceptional class”: Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383, at p. 404, per Windeyer J. See also, Howarth, , Textbook on Tort (1995), at pp. 254–259.Google Scholar
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152 Murphy v. Brentwood District Council [1991] 1 A.C. 398, at p. 486.
153 Alcock, at pp. 401–102.
154 Ibid., at pp. 419–20.
155 Ibid., at p. 416. Cf. Lord Keith, at pp. 396–397.
156 Canadian National Railway v. Norsk Pacific Steamship Co. (1992) 91 D.L.R. (4th) 289, at pp. 368–369.
157 Cf. “Proximity, which has a central meaning of closeness, also has penumbral and metaphorical connotations which refer to connectedness … the connotations of proximity can link up with community understandings of moral responsibility … the power of proximity lies in the possibility of a more relational and relationship-based understanding of the duty of care …” Vines, P., “Proximity as Principle or Category: Nervous Shock in Australia and England”, (1993) 16 U.N.S.W.L.J. 458Google Scholar, at pp. 479–180.
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161 See, Kidner, R., “Resiling from the Anns principle: the variable nature of proximity in negligence”, (1987) 7 Legal Studies 319.CrossRefGoogle Scholar
162 Coates (1995) 36 N.S.W.L.R. 1.
163 See, e.g. Brice v. Brown [1984] 1 All E.R. 997 and Jaensch v. Coffey (1984) 155 C.L.R. 549.
164 [1996] A.C. 155. Contrast Lord Keith, at pp. 169–170 and Lord Jauncey, at pp. 179–180, with Lord Ackner, at p. 170.
165 Above, at pp. 102–103.
166 Wigg v. British Railways Board (1986) 136 N.L.J. 446, per Tucker J.
167 See Lord Oliver's reference to Lord Bridge's speech in Caparo: Akock [1992] 1 A.C. 310, at p. 415.
168 Law Com. Consultation Paper No. 137, op. cit., n. 2 above, at paras. 5.21–5.27.
169 J.G. Fleming (1994) 2 Tort L.Rev. 202, at p. 204.
170 According to a member of the Hillsborough solicitors' steering committee, everyone who sought legal advice about a “nervous shock” claim following the disaster had a relative at the ground. Among the claimants were a fiancee and a “particular friend”, but no strangers to the primary victims, other than the police officers on duty: The Independent, 4 October, 1991.
171 Cf. Jones, , op. cit., n. 11 above, at p. 10.Google Scholar
172 Stapleton, , op. cit., n. 22 above, at p. 83.Google Scholar
