With a Law Commission report on nervous shock, Andrew Hunn, partner in Merricks solicitors reviews, the findings and asks if the courts are being over-cautious in their criteria for psychiatric injury claimsNULL

While the cause, consequences and pain of a physical injury are obvious, the same cannot always be said of psychiatric injury.

A new strand of English Law now acknowledges the "right to recover" for psychiatric illness independent of physical injury and the Courts have been cautious when creating a new class of liability for this for fear of opening a floodgate of claims. This fear has led to different criteria applying to recovery for psychiatric damage from that for physical injury. The arbitrary nature of the differing criteria applied has led to injustice. The absurdity of some of the distinctions has been highlighted by the Law Commission report.

The current law
The current confusion and concern with the law starts with the distinction between the primary and secondary victim, a distinction created at law which has been referred to by the courts as "unhelpful".

A primary victim is someone within the ambit of foreseeable physical injury, even if they are not, in fact, injured. If you are a primary victim - at risk of physical harm - then psychiatric injury is also foreseeable. The victim, having established a duty of care in relation to foreseeable physical harm, has no more hurdles to jump to recover for psychiatric injury, save to show his damage is a recognisable psychiatric injury.

A secondary victim however has additional hurdles. A secondary victim suffers psychiatric injury, not because of a fear of personal injury to himself, but because of the distress caused by witnessing something happening to a loved one. In order to recover for psychiatric injury the secondary victim must show, not only that he suffered a recognisable psychiatric injury caused by the event, but also:

1 that he was present at the event or its immediate aftermath (and that he saw the event through his own unaided senses)

2 that the event had a "shock value" and

3 that he had a relationship of "close love and affection" to the victim. Only when these criteria have been established will the psychiatric injury be "reasonably foreseeable" and damages recoverable. The question must be asked, do these additional criteria create injustice, or are they a reasonable buffer against the rash of claims that might result (thus increasing insurance premiums) were controls not appliedNULL

There is a rebuttal presumption of "close love and affection" in certain relationships, such as the parent-child relationship, the marital bond and possibly the bond of an affianced couple. In the case of other relationships the secondary victim must prove the tie.

Whilst the requirement to show this tie reduces claimants and prevents those with only distant connections claiming damage, it has led to the unedifying spectacle of psychiatrically damaged people having to prove their affection before they can recover damages.

An example of this is Alcock, a case arising out of the Hillsborough disaster, where a man present at the football match who witnessed his two brothers die, failed to recover for his psychiatric injury on the grounds that, in the case of siblings there was no presumption in favour of a tie of "close love and affection" and he failed to satisfy the court that it existed.

Also, in the case of the secondary victim of psychiatric injury he, even if he can show a tie of close love and affection, will not be able to recover unless the circumstances in which he suffered the shock fall within defined criteria. The limiting effects of this additional hurdle can be seen in two ways. Firstly, claims are limited to events that are "proximate" in terms of time and space and, secondly, the event must be witnessed through the secondary victims unaided senses. The first of these criteria can be accused of providing arbitrary injustice, it could, however, be argued that the second criterion is merely a function of the normal rule of law limiting a perpetrator's liability for events outside of his actions.

Looking first at the requirements for a "proximate" event. A woman who arrives at a hospital to see her surviving children in distress and receiving treatment is entitled to compensation. The cause of her psychiatric injury is proximate to the actual accident, her having viewed its immediate effect. If the same woman viewed her family after treatment, no matter how horrifying the long-term injuries she would not be able to recover. Whilst this can be viewed as arbitrary it is only standard application of judicial public policy putting a cap on the types of claims allowable to prevent floodgates.

The other part of the proximity test arises from the Hillsborough cases which decided that the medium through which the secondary victim received the shock was important.

For a secondary victim to recover, the shocking event must be viewed through the victim's own senses. The outcome of this was that to have been present at Hillsborough and viewed the death or injury of a loved one would enable the secondary victim to recover, but to have witnessed the same event via the medium of television would preclude a claim.

Whilst the injuries suffered were the same and this may be seen as unjust, two things must be considered. Firstly the number of cases that could be brought were this restriction not to exist and, secondly, that the perpetrator cannot control how widely the event is relayed.

Controlling a potential floodgate
There is, throughout the case law in this area, the spectre that any loosening of the restrictions on the circumstances in which claims can be brought will open the floodgates of claims. It should however always be remembered that to claim at all, a victim must suffer a "recognisable psychiatric injury".

It is, of course, foreseeable that a relative witnessing the death, threat to life or injury of a loved one will suffer distress. Distress, however foreseeable, is not recoverable. It is said "the sound policy of the law is that the excitement of a normal human emotion together with its normal physical consequence is not compensatable". To be recoverable the result must be more than grief or distress, it must be a "recognisable illness". Given this constraint there may be less threat of a flood of claims, if there is less danger of this then there is some merit in reviewing the necessity of the checks that limit the ability of claimants to recover.

The effects of the additional criteria in preventing secondary victims from recovering were laid bare by the Hillsborough cases. Here the relatives of the victims in the crowds failed in their claims (most not satisfying the proximity requirements) whilst all but one of the police officers present at the disaster who witnessed it first hand succeeded. The immediate effect of this is, given that the police were condemned for their crowd control, is to consider that an injustice occurred. However, it should be remembered that the claiming policemen were not those who effected the policies that contributed to the tragedy but ordinary officers who viewed shocking events. Furthermore, the police officers were able to establish a breach of duty by their employers and did not have to satisfy the criteria referred to earlier. It may, therefore, be fairer to phrase the question posed by the restrictions on psychiatric injury not as whether the police should have recovered and not the relatives of the victims, but whether those psychiatrically damaged, but distant from the event, should be able to recover.

Law Commission report
It is in the light of the seeming injustices to victims caused by the additional criteria required for psychiatrically injured victims to recover, that the Law Commission has made recommendations for change.

It is not proposed that the existing common law of negligence in this area be abandoned, rather it is proposed that a complementary statutory system dealing with the circumstances in which there would be recovery be established. Again, at the heart of the Law Commissions recommendations is the fear that increasing the classes of those entitled to claim for psychiatric injury will lead to floods of claims. To many it seems unjust to restrict the ability of the injured to claim because of its financial consequences. It is, however, part of the integral public policy function of the court to look at the wider implications on the rest of society (here in terms of increased insurance etc) when making its judgments.

The Law Commission has recommended that the distinction for when recovery can be made should be retained for primary and secondary victims. The recommendation was made, not on the basis that secondary victims were less worthy of compensation, but because of the risk of increased claims. Those psychiatrically injured in circumstances where they were not physical damaged or harmed themselves will still have additional hurdles to overcome. The Law Commission therefore concentrates on what the additional criteria should be.

The Law Commission proposed to remove the requirement that psychiatric injury should be caused by an event close in time and distance to the secondary victim. The proposal is that a new statutory duty of care for psychiatric injury would instead contain the requirement that the psychiatric injury is "reasonably foreseeable". This change should remove some of the more arbitrary injustices against those who are psychiatrically injured, whilst preventing a rush of claims and its effect on the insurance industry.

The Law Commission proposed to abandon the requirement that the psychiatric injury must be caused by a single shock. An example would be that a relative who watches while someone close dies slowly in hospital would not previously be able to claim - however it is proposed that now that restriction would not apply.

To prevent victims having to prove their affections the Law Commission recommended that a fixed list of relationships should give rise to an irrebuttable presumption that the relationship is close enough to result in psychiatric injury. These would include spouse, parent, child, sibling, couples cohabiting for more than two years (including homosexual couples). Others would still have to prove the closeness of their tie.

At first sight it can appear unfair that those who suffer a psychiatric injury must satisfy more criteria in order to recover damages than those who suffer a physical injury.

English law is, however, a balancing act between the rights of the individual and the rights of the wider community. In pursuing this public policy function the courts will have regard to the effect on commerce of increasing the ability of people to bring actions. Given this, it is not the restriction on people to claim that should be viewed to analyse whether it is unfair but whether the criteria limiting claims (and not just their existence) produce unfairness. There is little doubt that the criteria currently adopted can produce unjust results because of their strict and arbitrary nature. There is hope, however, that the Law Commission's recommendations would produce greater justice without opening the floodgates of claims.