Law of Torts
Nervous Shock and Psychiatric Injury: From the Impact Rule to the Alcock Control Mechanisms
The law compensates a recognised psychiatric illness and not grief. The difficulty has always been the same: physical injury announces its own limits, while psychiatric harm may spread to an indeterminate class of relatives, bystanders and viewers. The history is a steady retreat of blanket exclusions before control mechanisms. The impact rule required a physical impact, and fell in Dulieu v. White. The zone of danger limitation to fear for oneself fell in Hambrook v. Stokes. McLoughlin v. O'Brian extended proximity to the immediate aftermath, and Alcock produced the three requirements that a secondary victim must now satisfy.
The historical rules, the two leading cases, and the modern primary and secondary victim framework
1. What Must Be Proved
- A recognisable psychiatric illness. Grief, sorrow, fright, anxiety and distress, however genuine, are not enough. The law does not compensate the ordinary emotions of bereavement.
- Medical evidence is required, identifying a condition known to psychiatry, such as post traumatic stress disorder, pathological grief disorder or clinical depression.
- The injury must be caused by the defendant's breach, on the ordinary principles of causation.
- And the claimant must fall into one of the two categories, primary or secondary victim, each of which has its own rules.
- The traditional approach also requires a sudden shock, a sudden appreciation of a horrifying event, rather than a gradual realisation over time.
2. The Impact Rule and Its Fall
- The original position was that no action lay for nervous shock unless the plaintiff had suffered a physical impact.
- The reasons given were two: the fear that claims would be easy to fabricate and hard to disprove, and the fear of limitless liability.
- The rule was harsh and arbitrary, since the presence or absence of impact bore no relation to the gravity of the harm.
📖 Dulieu v. White and Sons [1901] 2 KB 669 Facts The plaintiff was a pregnant woman serving behind the bar of a public house. The defendants' servant negligently drove a pair horse van into the building. She suffered severe shock from fear for her own safety, fell ill, and her child was born prematurely and, it was said, an idiot. Held She recovered. Physical impact was not necessary. Ratio Damages may be recovered for shock caused by the defendant's negligence without any physical impact on the plaintiff. But Kennedy J confined recovery to shock arising from a reasonable fear of immediate personal injury to oneself, which became the zone of danger limitation. |
📖 Hambrook v. Stokes Brothers [1925] 1 KB 141 Facts The defendants left a lorry at the top of a steep and narrow street with the engine running and unattended. It ran down the hill. The plaintiff's wife had just parted from her children, who had gone on round a bend towards the oncoming lorry. She saw the lorry, feared for the children, and was told by a bystander that a child answering the description of her daughter had been injured. She suffered severe shock and died. Held By a majority, the claim lay. Ratio Recovery is not confined to shock arising from fear for one's own safety. A plaintiff who suffers shock through fear for the safety of her children, caused by what she saw with her own eyes, may recover. The limitation in Dulieu v. White was rejected as arbitrary, the Court observing that it would be strange if a mother who feared for herself recovered and one who feared for her children did not. |
3. The Modern Framework: Primary and Secondary Victims
Primary victim | Secondary victim | |
Who he is | A person within the zone of physical danger, or who reasonably believed himself to be | A person who suffers through witnessing harm, or the risk of harm, to another |
What must be foreseeable | Physical injury. If that was foreseeable, psychiatric injury need not have been | Psychiatric injury to a person of ordinary fortitude |
Control mechanisms | None apply | All three Alcock requirements must be satisfied |
The leading case | Page v. Smith [1996] AC 155 | Alcock v. Chief Constable of South Yorkshire [1992] 1 AC 310 |
Susceptibility | The thin skull rule applies in full | The claimant must be of ordinary fortitude at the threshold, and the thin skull rule then applies to extent |
Rescuers | Treated as primary victims where they were exposed to danger themselves | Otherwise they must satisfy the ordinary requirements |
📖 Page v. Smith [1996] AC 155 Facts The plaintiff was involved in a minor road collision caused by the defendant's negligence. He suffered no physical injury at all, but the accident revived and made permanent a chronic fatigue syndrome from which he had suffered intermittently for twenty years, so that he was unable ever to work again. Held He recovered. Ratio Where the plaintiff is a primary victim, within the range of foreseeable physical injury, it is unnecessary to ask whether psychiatric injury was itself foreseeable. Once some personal injury was foreseeable, the defendant is liable for the psychiatric injury that in fact resulted, and it is no answer that a person of ordinary fortitude would not have suffered it. |
4. Proximity and the Immediate Aftermath
📖 McLoughlin v. O'Brian [1983] 1 AC 410 Facts The plaintiff's husband and three children were involved in a road accident caused by the defendants' negligence. She was at home two miles away. She was told of the accident about an hour later and taken to the hospital, arriving about two hours after it. There she was told that one child was dead, and saw the others in circumstances closely comparable to the aftermath of the accident, still covered in oil and mud and before they had been cleaned up. She suffered severe and persisting psychiatric illness. Held She recovered. Ratio Proximity is not confined to those present at the scene of the accident. A claimant who comes upon the immediate aftermath of the event, and perceives it with her own senses in substantially the condition in which the accident left it, is sufficiently proximate. |
5. The Alcock Control Mechanisms
📖 Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310 Facts The claims arose out of the Hillsborough stadium disaster, in which ninety five spectators were crushed to death as a result of the police's admitted negligence in controlling the crowd. The claimants were relatives and friends of the victims. Some were elsewhere in the ground, some saw the events on live television, and some learned of them later and went to identify bodies at the mortuary. Held All the claims failed. Ratio A secondary victim must establish three things: a close tie of love and affection with the primary victim; proximity in time and space to the event or its immediate aftermath; and perception of the event through his own unaided senses, and not by being told of it or through a simultaneous television broadcast which, by the broadcasting codes, would not show identifiable suffering. Psychiatric injury to a person of ordinary fortitude must also have been reasonably foreseeable. |
The mechanism | What it requires | Why it is imposed |
Close tie of love and affection | Presumed between spouses, and between parent and child; must be proved in other relationships | To exclude the merely curious and the bystander |
Proximity in time and space | Presence at the event or at its immediate aftermath | To exclude those who learned of it later |
Perception by one's own senses | Seeing or hearing the event, not being told of it or watching a broadcast | To exclude the indeterminate class of viewers and listeners |
6. Psychiatric Harm Against Grief and Sorrow
⚠ The line, and why it is drawn where it is The law refuses compensation for grief, however deep, and gives it for a recognised psychiatric illness, however caused. The distinction looks arbitrary and is not. Grief is the normal human response to loss: it is suffered by everyone who is bereaved, it follows death from natural causes exactly as it follows death by negligence, and it is not a consequence of the defendant's wrong in any sense the law can measure. A psychiatric illness is a medical condition, diagnosable and capable of being attributed to a cause. The difficulty is that the two shade into one another, and a pathological grief reaction lies on the far side of the line while ordinary intense mourning lies on the near side. That is why medical evidence is indispensable in these claims, and why the pleading must identify the condition rather than describe the distress. |
7. The Position Stated Shortly
1. The law compensates a recognised psychiatric illness and not grief, sorrow or distress.
2. The impact rule required a physical impact, and fell in Dulieu v. White and Sons (1901).
3. Dulieu confined recovery to shock from fear for one's own safety, and Hambrook v. Stokes Brothers (1925) rejected that limitation.
4. A primary victim is one within the zone of physical danger, or who reasonably believed himself to be.
5. Page v. Smith holds that where physical injury was foreseeable, a primary victim recovers for psychiatric injury even though that was not foreseeable.
6. A secondary victim suffers through witnessing harm to another, and must satisfy the Alcock control mechanisms.
7. Those are a close tie of love and affection, proximity in time and space to the event or its immediate aftermath, and perception by his own unaided senses.
8. Psychiatric injury to a person of ordinary fortitude must also have been reasonably foreseeable.
9. McLoughlin v. O'Brian extended proximity to the immediate aftermath, where the claimant arrived some two hours later and before the victims had been cleaned up.
10. The traditional approach also requires a sudden shock rather than a gradual realisation, and the control mechanisms are frankly policy based.