Question 5 2009 Zone A

In your view what are the principal criticisms that can be made of the present law concerning liability in tort for psychiatric damage? If there were to be a statutory reform of the law in this area, what would be your principal recommendations?

  According to Stapleton, English law of liability for psychiatric illness is the area of law of tort where the “silliest” rule now prevail. Todd thinks the law is in a “dreadful mess.” Jones regarded it as a long list of anomalies.

  The problem in this area of law is that it lacks coherency and consistency. There are many conflicting principles. Psychiatric illness is not as identifiable as physical injury, and the fact that an alarming amount of potential claimants can arise from a single incident explains why it would be ridiculous to apply egg-shell skull rule to cases concerning psychiatric illness. Indeed there ought to be a different rule governing this area of law in order to avoid floodgates of litigation, but isn’t the rule of primary victim and secondary victim as ridiculous s applying egg-shell skull rule in this context?

  There are three questions regarding primary victim and secondary victim that are difficult to answer: who is primary victim, who is secondary victim, and why do we need to create a distinction between primary victim and secondary victim?

  Lord Lloyds defined primary victim as a person to whom physical injury is foreseeable. However, the test of reasonable foreseeability is already a pre-condition to recovery, along with the pre-condition of recognizable psychiatric illness. Why does a claimant need to overcome the same hurdle twice? Furthermore, recent cases such as Ferrell v Avon and Ferrell v Merton clearly extended the category of primary victim to cases where the claimant is not exposed to risk of physical injury.

  According to Lord Oliver in Alcock, primary victim is involved immediately as a participant in the event. However, in W x Essex CC, it is impossible to say that the parents were involved in the sexual abuse by the 15-year-old boy they fostered. It was their kids that were involved, not them; and they clearly did not fear for their safety – they feared for their kids’ safety instead. Still, they were classified as primary victims. On what basis precisely were they classified as primary victims?

  In CJD Litigation: Group B Plaintiffs v Medical Research Council, the claimants developed psychiatric condition upon realizing that treatment given to them could expose them to risk of developing CJD. The claimants obviously feared for their lives but the courts refused to classify them as primary victims. On what basis precisely were they refused to be classified as primary victims?

  Lord Oliver defined secondary victim as a person who is a passive and unwilling witness of injury caused to others. Lord Wilberforce said there are additional requirements that a secondary victim must satisfy: a close tie of love and affection between the claimant and the immediate victim, physical and temporal proximity, means of perception must be sight or hearing of the event or its immediate aftermath and the manner in which psychiatric illness was caused must be induced by shock.

  The problem here is: how is proximity and immediate aftermath defined? When an event occurred over several days, as in North Glamorgan NHS Trust v Walters, how do we determine when an event ends? If a mother knew that her daughter was kidnapped at 1pm. She started looking for her daughter at 1.20pm, after packing some essentials. She located the right building at 2.05pm but couldn’t determine which room, or which floor (assuming that she could not get help from the police due to negligence on the police’s part). She continued searching within the building, and at 2.25, she received a call from the kidnapper, asking her to hurry with the money (which she did not have), and let her listen to the screamings of her daughter due to torture. The kidnapper continued calling her after that, approximately once every ten minutes, each time her daughter’s screaming getting worse. At 2pm the kidnapper called again, saying they were impatient, and they would burn the girl. The mother heard the final screamings, followed by silence, and the kidnapper hung the phone. The mother never managed to find the corpse until 5.30pm. She suffered psychiatric illness. Will her claim succeed?

  The mother will face many hurdles. When does the event end? Does it end at 3pm, when her daughter was killed; or at 5.30pm, when the corpse was found; or at 2.25pm, when she first heard her daughter being tortured; or at 1pm, when she first realized her daughter was kidnapped? Precedents would say the event ended at 3pm, which means she found the corpse 2 ½ hours later – is this immediate enough to be considered as immediate aftermath? It is out of the 2 hour rule. The fact that she constantly receive calls listening to her daughter screaming raise another question: is her psychiatric illness shock induced? There are no clear guidelines as to how the additional proximity requirements are to be satisfied. The rules are complicated.

  Furthermore, the fact that rescuers, employees and bystanders are classified as secondary victims conflict with the additional proximity requirements: how can a close tie of love and affection between the claimant and the immediate victim be established in such cases? Wouldn’t it render the additional proximity requirements redundant?

  Dealing with psychiatric illness is like fighting a dragon which, each time its head is severed, grows a head that is more vicious than before. The fact that medical science is still struggling with this area indicates that new situations will always arise. The law must therefore be flexible in its approach and capable of adapting to new situations.

  The Law Commission Report proposed that for a claim to succeed, the plaintiff must be owed a duty of care by the defendant, and such duty would arise when either psychiatric or physical injury is reasonably foreseeable. There is no need for psychiatric injury to be adduced by shock. No definition will be given for psychiatric injury. No practical significance shall be attached to categorization of primary and secondary victim. There is no need to establish proximity in time and space. There should be a fixed list of relationship where a close tie of love and affection exist.

  I personally agree with most of Law Commission Report’s recommendations except for a few. I think psychiatric injury should be defined as psychiatric illnesses that are within the International Statistical Classification of Disease and Related Health Problems. Requirement for proximity in time and space should be an alternative requirement when a close tie of love and affection could not be established. This is to deal with rescuers, involuntary participants, employees, bystanders and other such claimants.

  The problem is, medical sciences is still at a developing stage in this area. So is the law. Is there really a need to freeze the law so soon? The law is still in its embryonic stages: why not wait and see what will happen as time goes by? The law might appear to be immature but so is the medical sciences. Until the scientists and researchers had come up with real explanations as to what causes psychiatric illnesses and how to measure the degree of illnesses, meanwhile, why not leave the matter to the good sense of judges to do justice?