The UK Courts Attitude towards Relational Loss Claims - Case Study Example

“The case of relational loss (secondary victims) appears to provoke a defensive stance by the judiciary and the primary/secondary divide, with the more favourable rules for primary victims, illustrates this.” Discuss in the light of claims for psychiatric injury in tort. Introduction In the realm of tort based on the ground of psychiatric injury due to negligence, also called nervous shock in earlier cases, claimants are either designated as primary or secondary. A primary victim is one who suffers psychiatric injury as a direct participant in an activity for which the defendant is found to have acted negligently. Primary victims usually suffer physical injury alongside symptoms of psychiatric injury. In the English courts, primary victims’ claims are often successful unless the psychiatric injuries are unaccompanied by physical injuries, in which case the action becomes contentious. On the other hand, secondary victims are those who suffer nervous shock after witnessing the death, injury or endangerment of another. With the exception of claimants whose families are the direct victims of the defendants’ negligence, there are many obstacles at present, in the form of restriction policies, which impede secondary victims from obtaining compensatory redress from English courts. 1 English courts have adopted a skeptical attitude towards relational loss illustrated by Lord Bridge in the McLoughlin v O’Brian 2 when he remarked that “’no less real and frequently no less painful and disabling’ than physical injuries should be denied the possibility of claiming compensation when their illness results from another person’s negligence.” 3 This characteristic defensive stance of English courts towards claims for tort based on psychiatric injury by secondary victims is underpinned by their fear that such claims if granted would open the floodgate to a host of imaginary claims. History of Physical Injuries Cases As early as 1888, the Privy Council had already signified its reservations regarding claims, initially from all kinds of victims, when the same were grounded on psychiatric injuries, fearing that they would become a potential floodgate to imaginary claims. The courts’ fear was grounded by the idea that such kinds of claims are too difficult to prove and therefore, just about anyone can feign similar conditions and go to court. In the case of Victorian Railways Commissioner v Coultas, 4 the Court refused to award a woman who was almost hit by an approaching train as she crossed a railway line at the insistence of the defendant’s gatekeeper. The Court maintained that such psychiatric injury was too remote from the gatekeeper’s negligent act and was too difficult to prove. Several years later, the Court changed with Dulieu v White & Sons, 5 where it allowed award of damages to a pregnant woman who suffered nervous shock after the defendant drove in his horse-driven carriage immediately close to the interior of her husband’s inn where she was stationed. She consequently became ill and gave birth to a premature child. It was in this case that the notion of fear of personal injury must underpin the shock was suggested in an obiter dictum. The Dulieu case was one of the earliest successful cases of tort based on psychiatric injury but it should be noted that it that physical symptom accompanied the claim of psychiatric shock. The above two cases involved primary victims and even then the courts were divided. In the subsequent case of Hambrook v Stokes Bros, 6 the Court was forced to deal with a victim who was merely a bystander to a horrifying incident, but only horrifying because of its personal implication to her. In this case, a woman terrifyingly watched as a lorry without a driver was careening down the hill towards an area where her children, a spot she did not have a complete view of, were standing. As a consequence, she suffered severe psychiatric shock for fear that the careening lorry was about to hit her children. The woman, who was then pregnant, suffered miscarriage as a consequence and died. The Court, rejecting the obiter dictum in the Dulieu case regarding fear of personal injury as a necessary underpinning to the claim, awarded the woman damages and rationalised the decision wittingly: “It would result in a state of the law in which a mother, shocked by fright for herself, would recover, while a mother shocked by her child killed before her eyes, could not, and in which a mother traversing the highway with a child in her arms could recover if shocked by fright for herself, while if she could cross-examined into an admission that the fright was really for her child, she could not.” Caselaw history would show that although the courts are not, as a rule, excited about relational claims based on psychiatric injuries, they are willing to accommodate a claimant when she is a mothers suffering psychiatric shock and her child is the object of her anxiety. In this case, proximity was taken into consideration although the secondary victim need not necessarily witness the actual incident herself but must have been within the area of foreseeable impact. This was supported in the cases of Chadwick v British Railways Board,7 a case of a man who suffered nervous shock after assisting victims of a railways crash and Benson v Lee, 8 where a mother suffered nervous shock after she was informed that her child was involved in an accident 100 yards away. In both aforecited cases, the claimants were not involved in the accidents, but in the Chadwick case the claimant was considered a primary victim whilst in the Benson case, the Court gave importance to the distinction between primary victim and secondary victim. The implication in the last observation was that a person who is not a relative and a total stranger to the actual victim, but has witnessed the accident and suffered psychiatric shock cannot claim on that ground. This dictum was clearly illustrated in the case of Bourhill v Young, 9 where a pregnant witnessed a road accident between a young man recklessly driving a motorcycle and the driver of a car. She subsequently gave birth to a stillborn child, for which she blamed the shock she suffered after witnessing the accident. The Court, however, denied her claim on the ground of impossibility of foreseeability. As she was standing on the roadside away from the defendant’s way, the latter could not have reasonably foreseen any damage to her by his recklessness. Contemporary Cases: At present, the caselaw on relational loss arising from tort in psychiatric injury cases has become more ambivalent and unstable, with the courts themselves seemingly unable to come to a unified position taking the same defensive stance most of the time. At most, this issue in tort is considered a grey area because of the judicial ambivalence and the incessant generation of new judicial formula in the form of tests and restriction policies. The state of caselaw in this particular area made Lord Oliver remarked in one case “I cannot for my part regard the present state of the law as either satisfactory or logically defensible.” 10 In the last years of the previous century, four important cases came up relative to psychiatric injury in tort caught the attention of the public anew. These were White & ORS v Chief Constable of the South Yorkshire Police, 11 Page v Smith, 12 McLoughlin v O’Brian 13 and Alcock v Chief Constable of South Yorkshire of Police. 14 These cases are deemed to enunciate the dicta of the modern approach towards torts based on psychiatric injuries. 15 1. Page v Smith In the Page case, the Court had to rule on the argument of the defendant that he could not be made liable of the psychiatric condition of the plaintiff that arose out of the minor car accident involving him and the plaintiff because of its unforeseeability. Although the plaintiff did not suffer any physical injury as a result of accident, he acquired a recurring psychiatric condition called myalgic encephalomyelitis. The defendant’s argument was actually based on the dictum held in the Bourhill case. In finding for the plaintiff, the Court stepped over the issue of psychiatric injury and deemed it a personal injury on the ground that the plaintiff was a direct victim and foreseeability is not an issue where primary victims are concerned. The significance of the Page case was that it finally clarified that in cases involving primary victims there is no need to determine whether the claim is grounded on physical or psychiatric injuries to apply the foreseeability test. It was also in this case that bystanders who suffered psychiatric injuries because of what they witnessed were given a name – secondary victims. 16 In the Page case, the plaintiff was a primary victim so the Court had no difficulty awarding him damages, but in cases where the victims are just mere witnesses or secondary victims, it was observed that the courts are not as willing. Some exceptions to this observation are immediate close relatives of direct victims, and persons protected by statutory tort. Such was the case of Young v Charles Church (Southern) Ltd, 17 where a worker saw his co-worker burned to death after the scaffold pole he was holding touched a live wire above him. The Court awarded him damages on the ground of psychiatric shock he suffered as a result of the experience. The case, however, was based on statutory tort. 2. White & ORS v Chief Constable of the South Yorkshire Police The White case involved claims by rescuers, members of the South Yorkshire Police, in the Hillsborough Stadium stampede who suffered psychiatric injuries after they assisted in the rescue of the victims who died or were injured during the stampede. The Court dismissed their claims on the ground that a determination of their standing vis-à-vis the incident, revealed that they were mere secondary victims. Rescuers, as a class, according to Lord Hoffmann cannot be given “special treatment as primary victims when they were not within the range of foreseeable physical injury and their psychiatric injury was caused by witnessing or participating in the aftermath of accidents which caused death or injuries to others.”18 Moreover, as secondary victims, the claimants did not satisfy the control mechanisms established in the case of Alcock. 3. McLoughlin v O’Brian The McLoughlin case is similar to the 1925 Hambrook case in that the claimants involved were both mothers and the cause of their psychiatric injury was fear of the life of their child. Both of them were not actually primary victims to the accident. In McLoughlin, however, the claimant was not in the area of proximity to the accident and was apprised only of the accident by a third party, although she proceeded to the hospital where she saw members of her family covered in mud and injured, unlike the mother in Hambrook who was in the vicinity at the time the accident happened although she did have not a clear vision of the exact spot. Despite the lack of proximity and the fact that she was not a primary victim, the Court granted the plaintiff’s claim, although the lower court rejected previously rejected it on the ground of foreseeability. Notwithstanding the award of damages in this case, which involved a secondary victim, the Court revealed its apprehension in granting claims in relational cases. The members of the Court, in an obiter dictum, were contemplating adding more tests to determine liability in psychiatric injury-related torts aside from the foreseeability to guarantee that the case would not lead to the opening of floodgate to more cases. 19 Although there was consensus that additional tests should be imposed, the Lords were not in agreement as to exactly the kind of tests that should be added. 4. Alcock v Chief Constable of South Yorkshire of Police The Alcock case is a memorable case because it is tied to a national event that turned into a tragedy that was witnessed by people in their houses via their television sets. The case was an appeal by ten persons who lost relatives in the incident and claimed to have suffered psychiatric injuries as a result. Only two of these persons were present at the stadium at the time the tragic incident happened whilst the rest were at home watching the tragic event unfold in their television sets. Nonetheless, their proximity to the area did not give them the advantage that it did to Hambrook because the Court, in this case, made an evidentiary requirement that would establish their close bonds to their respective relatives who died in the crowd crush as “the mere fact of the particular relationship was insufficient to place the plaintiff within the class of persons to whom a duty of care could be owed by the defendant as being foreseeably at risk of psychiatric illness by reason of injury or peril to the individuals concerned.” 20 As for the other appellants, neither was the close bond proved. Moreover, the Court ruled that watching the tragedy from a television set cannot give rise to a foreseeable shock considering that they footages did not depict suffering of recognisable individuals. Conclusion The four cases previously cited indicate the courts defensive attitude towards relational loss claims, which is evident from the disparity of their treatment of primary and secondary victims. In the Page case, for example, the Court removed the foreseeability test in cases of primary victims even when the latter’s claim is based on psychiatric injury, making it easier for the plaintiff in this case to succeed in his claim. The re-characterising of psychiatric injury in primary victims’ cases as part of personal injury has removed one obstacle to claims by this class of victims. Except for the McLoughlin case, this same generosity did not appear in any of the other cases involving secondary victims. On the contrary, in the latter cases, the Court imposed additional obstacles, in the form of ‘controls’ that would make it doubly difficult for secondary victims to claim on the ground of psychiatric injury, some of which amounted to a narrowing of earlier restrictions. In Alcock, for example, the Court suddenly imposed evidentiary proof of close bonds between claimant and the direct victim, a requirement not indicated in earlier cases. Moreover, one of the claimants here whose claim was granted in the lower court was not sustained by the appellate courts and was reversed. In all of these cases, the courts never failed to express their apprehension of the floodgate theory, giving rise to the suspicion that the courts have become defensive in the way they approach claims of secondary victims. Lord Steyn, for example, remarked in the Frost case that any move to either eliminate or even relax certain principles that govern the disposition of claims arising from psychiatric injury. 21 Lord Oliver observed in this case, “If there exists a sufficient degree of proximity to sustain a claim of damages for nervous shock, why it may justifiably be asked, does not proximity also support that perhaps more easily foreseeable loss which the plaintiff may suffer as a direct result of death or injury from which the shock arises. That it does not, I think, is clear from Hinz v Bery […] But the reason why ot does not has, I think, to be found in logic but in policy.” 22 As it is, the principles underpinning claims for tort, especially by secondary victims, are governed and limited by policies rather than a case-to-case determination of the claims. References: Benson v Lee [1972] VR 879. Bourhill v Young [1943] AC 92. Chadwick v British Railways Board [1967] 1 WLR 912. Dulieu v White & Sons [1901] 2 KB 669. Hambrook v Stokes Bros [1925] 1 KB 141. Harpwood, V. Modern Tort Law, 7th Edn. Taylor & Francis, 2008. Lunney, M. & Oliphant, K. (2008) Tort Law: Text and Materials, 3rd Edn. Oxford University Press. McLoughlin v O’Brian [1983] 1 AC 410, 433. Page v Smith [1996] AC 155. The Law Commission. (1998) Liability for Psychiatric Illness. Law Commission. Victorian Railways Commissioner v Coultas [1888] 13 App Cas 222. McLoughlin v O’Brian [1983] 1 AC 410. Alcock v Chief Constable of South Yorkshire of Police [1992] 1 AC 310. White & ORS v Chief Constable of the South Yorkshire Police [1999] 2 AC 455. Young v Charles Church (Southern) Ltd [1997] The Times LR May 1, CA Read More