A summary of developments since Alcock

Since the Alcock case, most of the litigation involving psychiatric injury has turned on two matters: (1) the nature of the illness suffered, that is, whether the symptoms amount to a serious psychiatric illness; and (2) causation. These developments are discussed in detail in the light of the new law.

• The nature of the psychiatric illness

It has always been the case that no one will succeed in a claim for nervous shock unless the trauma which is suffered leads to a serious illness (see 4.1).

Mere shock or temporary grief will not be enough. As Lord Bridge said in Alcock:

The first hurdle which a claimant must surmount is to establish that he is suffering not merely grief, distress or any other normal emotion but a positive psychiatric illness.

Thus, in Reilly v Merseyside RHA (1994), there was no liability on the part of the defendants when a husband and wife were trapped in a lift on a visit to a hospital to see their new grandson. Both suffered claustrophobia, and the husband, who had angina, thought he would choke, later had difficulty walking up to the ward and suffered chest pains and insomnia for a while afterwards. The wife, who already suffered from claustrophobia, was very distressed by the event and had difficulty breathing until they were released from the lift. She also had problems with insomnia afterwards. Although the defendants admitted that they had not maintained the lift properly, the Court of Appeal held that the unpleasant feelings which were suffered by the claimants amounted to no more than ordinary human emotions, and they had not established an identifiable psychiatric illness.

By contrast, in Tredget v Bexley HA (1995), a couple who had experienced great distress as a result of the frightening circumstances surrounding the death of their newly delivered baby, were able to prove serious psychiatric illness and were awarded damages.

There are some primary victims who develop symptoms of psychiatric injury over a long period of time. A claim may well fail for limitations reasons if the claimant does not begin proceedings until after a long period of time has elapsed (Crocker v British Coal Corpn (1995)), which involved a claim brought by a victim of the 1966 Aberfan disaster. Similar problems can also arise in the cases of individuals who have suffered physical or sexual abuse as children.

A distinction has been drawn between PTSD which is regarded as an actionable psychiatric condition, and pathological grief disorder, which is not always linked causally to a traumatic event. In Calscione v Dixon (1993), the claimant was the mother of a 20 year old who had died of injuries which he had sustained in an accident on his motorbike. The defendant admitted negligent driving, but denied liability for all the alleged psychiatric illness suffered by the claimant. The nature of the claimant’s psychiatric conditions was explored in an effort to decide what was recoverable, and the case turned ultimately on causation. Part of the claim failed because she could not prove a direct causal connection between her symptoms and the accident. The Court of Appeal held that she had suffered some PTSD, but her more serious symptoms were attributable to events which had occurred after her son’s death, including an inquest and a private prosecution which she had brought against the defendant. It was held that the trial judge had been correct to separate PTSD and pathological grief disorder.

In Vernon v Bosely (1996), however, the Court of Appeal was of the view that damages are recoverable for nervous shock which is partly attributable to pathological consequences of grief and bereavement. In this case, the claimant had witnessed his children drowning in a car negligently driven into a river by their nanny. The defendants accepted that he fell within the

categories of people entitled to claim according to the Alcock case. However, they contended that he did not suffer from PTSD as opposed to pathological grief disorder which he would have suffered even if he had not been present at the scene and witnessed the events in person. The claimant had a somewhat ‘egg-shell’ personality and had not made a success of his life. He had bought a failing business which was doomed to flounder for economic reasons, but after the accident his failure to cope with everyday matters meant that the business failed more quickly and his marriage broke up. The Court of Appeal found that damages were recoverable for nervous shock notwithstanding that the illness might also have been considered to be a pathological consequence of the grief and bereavement. It was not necessary therefore to research the various minute permutations of psychiatric medicine to discover which part of the damage was attributable to the traumatic event and which to bereavement.

• Causation and remoteness of damage

It may be difficult to prove causation if many years have elapsed since the event which caused the psychiatric trauma. Even if the limitation rules (see 20.10) are satisfied, the claimant has the task of proving on a balance of probabilities that the event caused the psychiatric illness which developed later. A study by the Institute of Psychiatry concludes that children who witness disasters are more likely to suffer from depression and to harbour suicidal thoughts as adults than their peers. Of course, anyone who is actually present and part of a disaster as it happens (a ‘primary victim’) would not have as much difficulty establishing causation as a person who despite falling within the Alcock limitations was not actually part of the event. It was reported in March 1996 that a seaman who had been assisting in the recovery of bodies after the Zeebrugge ferry disaster and who was suffering from PTSD, some nine years after the tragic event was seeking leave of the court to sue his employers because the claim was outside the limitation period. He had not brought the action before because he had not realised that he was suffering from a recognised medical condition and had not sought medical advice. In the intervening years, he had suffered many flashbacks of the traumatic events and taken to drink. His marriage had broken up and he was no longer able to work because of his illness.

If the claimant is a primary victim, and already has a pre-disposition towards psychiatric problems, this is no reason for a court to deny a remedy. In these ‘egg-shell personality’ cases, the claimant will succeed if it can be proved that some kind of psychiatric injury was foreseeable, but the exact form of illness suffered by the claimant need not be foreseen. In Page v Smith (1996), the claimant had a history of myalgic encephalomyelitis (ME) and had been unable to sustain satisfactory long term employment for many years, though he had been recovering quite well from a bout of the illness immediately before the accident. After a frightening, though

relatively minor, car accident, his medical condition deteriorated and the ME was exacerbated. The condition became chronic and he would never be able to work again. The House of Lords applied the thin skull rule. It was held that if a driver was negligent and caused an accident, he would be liable for nervous shock to a primary victim of the accident (that is, someone actually involved in the accident which he had caused) if personal injury, whether physical or psychiatric, of some kind was foreseeable. It was irrelevant that the defendant could not reasonably have foreseen that the claimant had an egg-shell personality (a pre-existing tendency towards psychiatric problems). Lord Browne-Wilkinson said:

Any driver of a car should reasonably foresee that if he drives carelessly he will be liable to cause injury. In the present case, the defendant could not foresee the exact type of psychiatric damage ... The claimant had an egg-shell personality, but that is of no significance ... Once a duty is established, the defendant must take the claimant as he finds him.

Lord Lloyd, while agreeing with this view, thought, on the basis of reasoning in the earlier cases such as Bourhill v Young (1943) (see 4.2.3 above), that there would only be liability to secondary victims (that is, people not actually involved in the accident) if psychiatric injury would have been foreseeable in a person of normal fortitude in the circumstances.

The principles of remoteness of damage and the ‘egg-shell’ concept are explained in Chapter 7. These matters are usually considered after it has been established that a duty of care exists and that there has been a breach of that duty. For the sake of completeness, they are being dealt with here in the main body of the discussion on nervous shock. Refresh your memory on these nervous shock cases when you read the chapter dealing with causation and remoteness of damage.

If the claimant suffers psychiatric illness as a result of some cause other than a sudden traumatic event (for example, work stress), there may also be liability at common law, providing damage of that type was foreseeable and the claimant is a primary victim.

There is still considerable interest in the way in which the law in this area is developing and the Law Commission produced an extensive review and report on the subject in 1998.