PSYCHIATRIC INJURY: COMPARISON BETWEEN UK AND USA

The issue of psychiatric injury is a crucial one. Generally in UK, there are two types of victim who can claim damage for psychiatric injury. One of them is primary victim and another one is secondary victim. In this assignment I endeavour to analyses the categorization of victim of psychiatric injury of both United Kingdome and United States of America. Further more, I will evaluate the law of UK about psychiatric injury and if it is necessary to reform the law then I will discuss about reform proposals.

In UK, the law of psychiatric injury is still developing one by case laws. It appears form the current case law that judges are much more restrictive in awarding damage in case of secondary victim. In the judgment some creative judges identified the rationality behind there judgments. On the other hand the jurists or commentator and writer of different books critically access there rationality and criticized in some situation and finally to overcome these problems proposed some reform proposals. I want to make a balance between these two by considering the law of psychiatric injury of USA.

Firstly, in all psychiatric injury cases it was necessary to satisfy the foreseeability requirement[1]. But in Page[2], the House of Lords held that foreseeability of psychiatric illness was not the correct test where the plaintiff was “directly involved in the accident” and “well within the range of foreseeable physical injury”. Here a difference has been made between primary and secondary victim and it is said that in case of primary victim the duty of care owed by the defendant to the plaintiff will be the same duty of care. But the law still remains same for the other type of victim.

Now question arise how we will draw a demarcation line between primary and secondary victim? According to Mark Lunney and Ken Oliphant[3] “primary victim” denote the person who is physically harmed or imperiled by the defendant’s negligence.

1.5

The law of primary victim is governed by decision McFarlane v EE Caledonia Ltd[4]. In this case Stuart-Smith LJ identified three situations in which a plaintiff may recover damages for psychiatric injury. The first is the case where the plaintiff is within the area of reasonably foreseeable psychiatric injury. The second situation is where the plaintiff is not actually in the area of danger but reasonably believing himself to be but actually he is not and finally rescuer. On the other hand to Lord Oliver[5] in secondary victims mean who are merely passive and unwilling witnesses or being informed about an accident, which involves another. Here House of Lords laid down proximity requirements[6] which must be satisfied in order to success where psychiatric injury results for witnessing the traumatic event[7].

Under the head of proximity relationship, it is necessary for the claimant to establish “a close tie of love and affection”. As there is no settle test, in many case it is found that there is a rebuttably presumption in case of some relationship like parent-child, husband-wife etc. As regarded other relationship it is found that Lord Oliver is willing to adopt a flexible approach and Lord Ackner and Lord Keith who were also prepared to accept a claim of bystander for witnessing a particularly horrific accident[8]. But problem arise because it was not clear how the “scale of horrors” could be devised. Finally the court of appeal rejected the idea of liability to mere bystanders[9]. So it is argued by Mark Lunney and Ken Oliphant[10] to whom I agree that the requirement seems to close the door on claims by mere bystanders.

To succeed in claim the claimant must also have to prove that he was also proximate in the time and space to the event that caused the sock[11]. This law is extended by House of Lords in Maclaughlin case to cover immediate aftermath. Now it is not necessary to present at the scene of the accident. Donal Nolan[12] argues that what qualifies as the “immediate aftermath” of an incident will cause some problems. This dissatisfaction is shared by members of the senior judiciary like Lord Steyn in White v. chief constable of west Yorkshire[13]

The third requirement which the claimant must satisfy is “proximity of perception”. It means that the injury must be caused as a result of directly witnessing the accident or its immediate aftermath. If the claimant is told about the accident by a third party then it is unlikely that he will successfully get compensation[14]. This law is further established by the court of appeal, where it was also affirmed that it is immaterial that the claimant’s fear subsequently confirmed by the accident[15].

There are other categories where the claimant can successfully recover damage for psychiatric injury. One of them is rescuer and this is the third categories which were laid down in McFarlane case. To Lord Oliver in Alcock case rescuers were “participant” for the purpose of the rules on psychiatric injury and hence were not subject to the limitation on recovery by secondary victim. But this principal was limited by the House of Lords[16].

Another category of involuntary participant was also recognised by Lord Oliver in

Alcock case. Here “the negligent act of the defendant has put the plaintiff in the position of being, or of thinking that he is about to be or has been, the involuntary cause of another’s death or injury and the illness complained of stems from the shock to the plaintiff of the consciousness of this supposed fact”[17]. He included in this category the case of Dooley v Cammell Laird[18] and Galt v British Railways Board[19],

It is found that in USA, the law of the most of the sates reflects the view that the policies of the law of negligence would be ill-served by allowing recovery for all emotional harms that foreseeably result from negligent conduct[20]. According to the statement of Markinsis & Dikens, most of the reported cases in which the plaintiff has been successful in recovering damage for psychiatric injury that is fall into four categories.

Firstly, it is established that claimant can recover damage in an accident in which the plaintiff sustained compensable physical harm[21].

Secondly, the plaintiff can also recover damages for psychiatric injury produced by the plaintiff’s fear for his or her own physical safety, provided the plaintiff suffered such fright while in a zone of physical danger created by the defendant’s negligent conduct[22].  Many of the states took a more restrictive approach by putting an additional requirement that the emotional harm for which recovery of damage is sought has manifested itself in physical injury[23].

Third criterion is to allow damages for emotional distress by witnessing a traumatic event, provided that he can satisfy the three requirements as stated above[24].  Previously the court used these criterions as mere guidelines to be used in deciding whether the emotional distress was foreseeable enough or not. But now the three criteria are becoming doctrinal requirement[25]. 

Finally, there are two exceptions to the normal rule denying recovery for negligently inflicted emotional distress have allowed such recovery to persons aggrieved by negligence in the transmission of a telegram or similar message regarding a serious illness or death in the family[26] or by being a witness to or otherwise directly affected by the defendant’s negligence handling of the corpse of a loved one[27]. Those cases falling outside the foregoing four categories, most of the sates deny recovery for negligently inflicted emotional suffering except when it is parasitic to a compensable physical injury. 

Some justifications identified by the Lord Wilberforce in McLoughlin case that- firstly, this will open the flood gate of claims. So many unmeritorious cases will come to court for hearing. But he also put a counter argument here that if the claim will increase dramatically it will show that it is the social need and unnecessary or fraud claims will face of evidentiary difficulties. Secondly, it would be unfair for the defendant, if the claimant’s who suffered psychiatric injury as a secondary victim, as imposing damages out of proportion to the negligent conduct complained of. But I think that, it will not be unfair for the defendant rather than for plaintiff if the damage is not awarded because he has suffered psychiatric injury as a result of the negligent conduct of the defendant. Thirdly, to extend the liability beyond the most direct and plain cases would greatly increase evidentiary difficulties and tend to lengthen litigation. Fourthly, it is the duty of the parliament to extend the scope the liability to include the secondary victim after careful research. My submission here is that, as parliament did not enact an Act on this point so to prevent injustice, the court should exercise its power. More over it is found there is a possibility of difference of opinion of experts as it this case and for this reason courts are unwilling to accept a claim to limit the number of unnecessary litigation[28]. On this point law commission put a counter argument that the same issue can arise in case physical injury  and as in this case there is no such restriction so why should court will be more restrictive in case of psychiatric injury.[29]

After discussing the law of both USA and UK, it is also found that the scope of claiming damage is more or less similar in both UK than USA. Both countries have some extra features. In UK the court accepts the claim of rescuer and involuntary participants where as the USA two exceptions identified by Markinsis in the forth category.  Further more, In USA only foreseeable psychiatric injury can only be compensated what ever category is it. But in UK it is not same in case of primary victim. We know there are fifty states of USA but the courts are not so creative like UK in developing the law. They normally use the case law of UK to compensate the victim. So, on what basis I want say that the law of UK is in better position.  

There are problems with the current state of affairs. For example- the same problem identified by Donal Nolan and the law commission report is that is the judiciaries are using arbitrary discretions[30] as found in the application of the immediate aftermath doctrine.  The examples of discretion of judges given by law commission are Taylor v Somerset Health Authority[31], McLoughlin v O’Brian[32] and Taylorson v Shieldness Produce Ltd[33]. In the first case court did not allow plaintiff’s claim for damages for the psychiatric illness which she consequently suffered was denied on the basis that she had not directly perceived the “immediate aftermath” of the event. Whereas in the second case plaintiff could recover successfully recover the damages though she saw her family member’s body immediate aftermath. On the other hand the Court of Appeal rejected plaintiffs’ claims in respect of their consequential psychiatric illness, on the basis that the immediate aftermath. More over, Donal Nolan[34] criticize the requirement of “close tie of love and affection” by saying that it is difficult to predict outcomes include the rules on the requirement of a close tie of love and affection. I agree with these arguments. Because, one of the main advantages of doctrine of binding precedent is “consistency of law” for which the lawyer can predict the out come of a case. However, if higher judiciary gave different ruling on same point of law or some judiciary are willing to wide the approach to give compensation to the victim and some take a reluctant approach then the how the lawyer will certainly identify the current law. More over the lower judiciary will be in trouble as to which one they will follow.

So that reform of the law of psychiatric injury is necessary. The reform proposals are found from some academics or law commissions etc. According to P.Handford the liability for psychiatric harm should be treated in the same way as physical injury and the proximity requirements used to limit liability in this area should be abandoned[35]. In most cases, the reasonable foreseeability of psychiatric illness should be enough to give rise to a duty of care; a position which the author’s contend would not lead to a flood of litigation because the requirement that the illness be reasonably foreseeable is “a considerable hurdle to surmount in itself”[36].

Donal Nolan identified three possible ways of reform. First is to equate psychiatric injury with physical injury, and abolish all special restrictions. The restrictions applied in physical injury case will also apply here if we treat psychiatric injury as physical injury. The second is to abolish all recovery for psychiatric injury, unless it is consequential upon physical harm to the claimant’s person[37]. Jane Stapleton emphasised two particular policy arguments against recovery for psychiatric illness: that litigation of this type causes so-called “compensation neurosis”; and the difficulty of drawing a clear line between ordinary emotions and recognised psychiatric illnesses. I do not agree with Stapleton because it will restrict the ambit to get damage of psychiatric injury. And for this reason in many meritorious cases the plaintiff will not get damage even though he suffers recognized psychiatric injury. Another way of reforming the existing law is by Act of parliament. Lord Scarman[38] expressed the view that legislation was appropriate to deal with the anomalies. 

The law commission has proposed legislation the law of psychiatric injury in 1998 by Law commission report no.299. Here the commissions proposed legislation intended to set out two new duties of care, one for the usual situation where the Defendant is not the immediate victim (secondary victim), and the second for the rarer situation where the defendant is the immediate victim (primary victim)[39]. Under the reform proposal it would no longer be necessary to show in case of secondary victim that claimant was close to the accident in time or space, nor that the perceived it or its aftermath by his own unaided senses[40]. The result would be that people in the position of the Alcock claimants would be able to recover, as would the spouse who succumbs to pathological grief after the death of this partner[41]. However it is still necessary that the claimant has the necessary close tie of love and affection with the person who is injured by the defendant. The list of relationships where the close tie of love and affection will be presumed is recommended by law commission[42].     

I think the law should be reformed by enacting laws and the guideline can be the law commission’s proposals. In the above discussion it is found that the scope of claiming damage will be much wider than common law. If so then the victim will get compensation with out facing any hurdles.  

 

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[1] Bourhill vs young [1943] AC92, 110

[2] [1996] 1 AC 155, per Lord Lloyd

[3] Lunney and Oliphant, Tort law, text and materials, third edition, 2008

[4] [1994] 2 All ER 1

[5] Alcock v chief constable of south Yorkshire [1998] 1 AC 310

[6] Proximity of relationship, proximity of time & space, proximity of perception

[7] Alcock v Chief constable of South Yourkshire [ 1992] 1 AC 310

[8] ibid

[9] McFarlane v E.E. Caledonia ltd [1994]

[10] Tort law, text and materials, third edition, 2008

[11] Alcock v Chief constable of South Yorkshire [ 1992] 1 AC 310

[12] Psychiatric injury at the crossroads, journal of personal injury law, 2004.

[13]“[T]he law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify … In my view the only sensible general strategy for the courts is to say thus far and no further. The only prudent course is to treat the pragmatic categories as reflected in [the case law] as settled for the time being, but by and large to leave any expansion or development in this corner of the law to Parliament. In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way which is coherent and morally defensible. It must be left to Parliament to undertake the task of radical law reform.” 

[14] Ravenscroft v Rederiaktiebolaget Transatlantic [1992] 2 All ER 470n

[15] Palmer v Tees Health Authority [2000] PIQR P1

[16] White v. Chief Constable of the South Yorkshire police.

[17] [1992] 1 AC 310,4.8

[18] [1951] 1 Lloyd’s Rep 271

[19] (1983) 133 NLJ 870

[20] p.302 of Markesinis & Deakin’s, Oxford university press, Sixth edition, 2008

[21] Porce v. City Philadelphia

[22] Niederman v. Brodsky treated

[23] Bass v Nooney co, 646 SW 2d 765, 771 (Mo. 1983)

[24] Markesinis & Deakin’s, Oxford university press, Sixth edition, 2008

[25] Grotts v Zahner, 115 Nev.339,989 P2d 415,416 (1999)

[26] Johnson v. State of New York, 37 NY 2d 378, 334 NE 2d 590 (1975)

[27] Chrustebseb v. Superior court, 54 Cal. 3d 868, 820 p 2d 181 (1991)

[28] Vernon v Bosley (No 2)

[29] 6.6 of Law commission report no 290

[30] 6.12 of Law commission report no. 299

[31] [1993] 4 Med LR 34.

[32] [1983] 1 AC 410.

[33] [1994] PIQR P329.

[34] Psychiatric injury at the crossroads, journal of personal injury law, 2004.

[35] Mullany & Handford’s tort liability for psychiatric damage, 2^nd edition.

[36] Mark Lunney and Ken Oliphant, oxford university press, Third edition, 2008

[37] “In Restraint of Tort” in Birks (ed), The Frontiers of liability (OUP, 1994), 95

[38] Mcloughlin v O’Brian [1983] 1 AC 410

[39] 6.23 of Law commission’s report no. 299

[40] 6.16 of ibid

[41] Winfield & Jolowicz, Sweet & Maxwell limited, Seventeenth edition, 2006

[42] 6.26 of Law commissions report 1998