Introduction

Psychiatric injury liability has evolved through the years, as significant improvements have been made in the medical understanding of psychiatric injury. Even though psychiatric injury is recognized as a form of personal injury, the law draws a separate line between physical injury and purely psychiatric harm, with different rules applying to each one. Despite the potentially disabling nature of mental illness, the law has embraced an extremely stringent approach concerning psychiatric injury based on public policy considerations. In White v Chief Constable of the South Yorkshire Police, Lord Steyn noted that the legal framework surrounding compensation for psychiatric injuries was a ‘patchwork quilt of distinctions’. This is aggravated by the courts’ varying treatment of ‘primary’ and ‘secondary’ victims.

Definition of ‘Psychiatric Injury’

It is essential to recognize that the courts in the UK and common-law jurisdictions, including Cyprus, make a distinction between claims for mere grief and distress, and claims concerning medically recognized psychiatric illness. Commonplace symptoms like distress, and mere grief, generally are not remedied by the law. Successful claimants in cases involving psychiatric injury, have to prove that they suffer medical conditions like ‘PTSD’ (post-traumatic stress disorder) or ‘pathological grief disorder’. The law recognizes that this medical condition can be equally severe and debilitating as physical injury. Nevertheless, for policy reasons, the law restricts the situations in which claims for compensation can be made.

Until recently, claims for psychiatric injury were referred to as “nervous shock” claims. This terminology was used to highlight that the law would only take into consideration claims in situations where psychiatric illness was caused by the “sudden shock” of taking part in a particular single event or by witnessing the event. Once the claimant, proves that he suffers from a psychiatric illness that is recognized by the law as actionable, there are a number of additional challenges that have to be overcome in order to succeed. The nature of the challenges that a particular claimant has to overcome depends on the kind of circumstance that gave rise to the psychiatric injury. The law categorizes claimants into different groups, with different rules applying to each group of claimants. An extensive reference for each category of claimants will be given below.

The Current Approach of the UK Courts

Lord Wilberforce, in the case of McLoughlin, laid the groundwork for the modern approach of the courts in cases involving psychiatric illness. He acknowledged the significant potential for psychiatric illness to affect a wide range of potential claimants, highlighting the necessity for the law to impose some restrictions on the scope of allowable claims. Lord Wilberforce identified three key factors that should be taken into account concerning what is now referred to as secondary victims; the category of individuals whose claims should be acknowledged, the closeness of such individuals to the accident, and the mechanisms through which the psychiatric illness was induced. These three “control mechanisms” proposed by Lord Wilberforce were later revised and put into effect by a unanimous decision of the House of Lords in the case of Alcock.

Types of Victims: Primary and Secondary Victims

When addressing claims concerning psychiatric injuries, a division is made between primary and secondary victims, each subject to distinct legal principles. This differentiation reflects the various ways in which psychiatric harm can occur. Broadly speaking, a claimant may sustain such injuries due to a personal experience, like being in a car accident, or by witnessing or hearing about an event involving others, such as observing a car crash. Although the terminology of primary and secondary victims is typically attributed to Lord Oliver’s view in Alcock, the factual discrepancy lies between individuals who suffer psychiatric injury directly from being involved in an accident (primary victims) and those who suffer such harm by witnessing an accident involving others (secondary victims).

The case of Alcock, was indeed one of several legal cases that emerged following the tragic events of the Hillsborough Stadium disaster. Confronted with the tragedy encompassing multiple victims and a vast pool of potential claimants, Lord Oliver made a clear distinction. He categorized cases where the claimant is either indirectly or directly involved as a participant from those where the claimant is merely a passive and involuntary witness to injury inflicted upon others. Concerning secondary victims, the House of Lords proceeded to specify various constraints on the accessibility of claims. These control mechanisms, known as the Alcock criteria, pertain to the establishment of proximity in claims. These criteria address several key issues: identifying the group of individuals whose claims should be acknowledged based on their relationship to the victim; assessing the proximity of the claimant in both physical and temporal terms to the accident; and evaluating the necessity and method by which the shock is triggered.

Since the case of Alcock, there have been varied interpretations of this distinction, especially regarding primary victims. While Lord Oliver envisioned a relatively broad group of claimants falling under the primary victim category, including rescuers and unwitting agents, Lord Lloyd’s stance in Page v Smith, seemed to limit it to individuals within the scope of foreseeable physical danger. Lord Lloyd’s narrow interpretation of the primary victim category played a strategic role when the majority of the House of Lords applied it in another case linked to Hillsborough, namely, White v Chief Constable of the South Yorkshire Police.

Secondary Victims and the Control Mechanisms

A secondary victim experiences psychiatric harm as a result of witnessing harm or danger inflicted upon someone else. In such cases, the ability to recover is constrained by various policy-driven control mechanisms. The initial requirement is that the psychiatric injury suffered must be reasonably foreseeable in an individual of ‘ordinary fortitude’ under similar conditions. Hence, if a secondary victim experiences psychological harm in circumstances where a person of average resilience would not, the defendant would not be held liable, even if the resultant psychological reaction is severe. As established in the case of Bourhill v Young, secondary victims, unlike primary victims, face a significantly greater challenge in proving that they are owed a duty of care. While defendants are required to accept their primary victims as they are found, secondary victims must exhibit a level of emotional resilience described as ‘customary phlegm’ to establish their claim successfully. Furthermore, secondary victims must also meet the control mechanisms established in the landmark case of Alcock, which stemmed from a significant disaster at the Hillsborough Stadium. This places secondary victims in a less advantageous position compared to primary victims, raising questions about the justification for such a distinction.

Although the case of Alcock outlines three control mechanisms, the courts must approach them holistically rather than as standalone criteria. These three “control mechanisms” are critically examined below.

i. Relationship with the Direct Victim

The first control mechanism specifies that the claimant must have a close bond of love and affection with the direct victim of the incident. Alcock, points out that while a close bond of love is presumed in cases involving parents, children, and spouses, siblings and other relatives need to provide evidence proving the existence of such ties. Brian Harrison in the case of Alcock, witnessed the tragic accident, in which his two brothers lost their lives. His claim was unsuccessful as he did not present any evidence of a strong emotional connection with his brothers. Nevertheless, in McCarthy v Chief Constable of South Yorkshire Police, a claimant whose half-brother died at Hillsborough, successfully obtained compensation for the psychiatric illness he experienced. This claimant offered testimony from relatives and friends affirming the close-knit nature of their family, especially highlighting the strong bond between the two half-brothers.

While this mechanism is built on the principle of reasonable foreseeability, similar to that applied to primary victims, it has been subject to criticism. Teff contends that this mechanism constitutes a stipulation that brings embarrassment to both the legal process and the substantive law. In simpler terms, the mechanism runs the risk of causing discomfort or humiliation to claimants who are subjected to questioning about the closeness of their relationship.

ii. Proximity in Time and Space

The second control mechanism necessitates both spatial and temporal proximity to the event or its immediate aftermath. Expanding the criteria, as seen in the case of McLoughlin, to encompass the immediate aftermath may be viewed as a lessening of the control mechanisms’ stringency. However, it paves the way to subjective judgments in determining what qualifies as adequate proximity, potentially leading to arbitrary distinctions between cases deemed sufficiently close and those considered too distant. While a line must indeed be drawn, this necessity has resulted in seemingly inconsistent applications of the law to subsequent cases. For instance, while the arrival of Mrs. McLoughlin at the hospital two hours after the accident was considered adequate, Mr. Robert Alcock’s search at the ground and subsequent identification of his brother-in-law’s body at the temporary mortuary around midnight (approximately eight hours after the match was abandoned), despite the evident signs of trauma, has been vividly characterized as “too dry” to justify recovery.

Another significant case to consider is the case of Taylorson v Shieldness Produce Ltd. The parents of a child received news of an accident involving their son and promptly rushed to the hospital. Upon arrival, they were informed that their son was moved to another medical facility. Following the ambulance, the mother witnessed her son’s bruised face, while the father noticed his son’s hand limply hanging off the trolley. After an 8-hour wait, the parents were finally able to see their son, who had suffered severe facial injuries and had a medical device protruding from his skull. Tragically, two days later, the parents made the difficult decision to switch off their son’s life support machine. However, the Court of Appeal ruled that they reached the hospital too late, leading to the failure of their claim.

Moreover, in Galli–Atkinson v Seghal, the concept of the “immediate aftermath” was interpreted generously, leading to a mother’s successful claim for psychiatric injury following her daughter’s death in a car accident. This case suggested that the immediate aftermath of an accident could be broken down into distinct components, notably including the mother’s visit to the accident scene and the hospital morgue. Nevertheless, in Berisha v Stone Superstore, the court took a more stringent stance. In this situation, the claimant reached the hospital four and a half hours after her colleague had sustained serious injuries at work. Upon arrival, he was already on life support. The claimant stayed by his side for 36 hours until, with her consent, life support was withdrawn. Judge Hassell asserted that the claimant did not see the accident, attend the scene, witness any continuation of the scene, or experience the immediate aftermath of the accident. Additionally, she did not contribute to a coherent narrative starting from the accident. Consequently, her claim unequivocally did not meet the requirements of the current control mechanisms.

iii. The Means by which the ‘Shock’ is Caused

The third control mechanism specifies that the psychiatric injury must stem from directly perceiving the incident or its immediate aftermath using one’s own unaided senses. It necessitates that the injury arises from the sudden shock of witnessing the event, rather than from gradual exposure over a more extended period. Lord Ackner characterized it as a‘sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.’

The Law Commission in its Report on Liability for Psychiatric Illness (1988) criticized this mechanism. In Sion v Hampstead Health Authority, a father was unable to recover from psychiatric harm suffered as a result of witnessing his son’s death unfold over 14 days, during which he became increasingly aware of the hospital’s alleged negligence in its treatment of his son. However, in North Glamorgan NHS Trust v Walters, a mother successfully recovered as a secondary victim for the psychiatric harm she endured due to negligent treatment resulting in the death of her baby son. The Court determined that such a distressing event was not limited to a single moment and, adopting a realistic approach to the circumstances, considered the 36 hours preceding her son’s death as a singular horrifying event. It is important to highlight that Gibson LJ, who presided over Sion, seemingly disagreed with the requirement, asserting that there is no logical reason why an incident lacking violence or suddenness, such as the negligent administration of the wrong medicine to a hospital patient, could not result in a claim for damages for nervous shock.

It can be argued that secondary victims should not be subjected to an additional requirement of experiencing a sudden “shock” in order to bring an action, considering that they must already have a medically recognized psychiatric condition. It is reasonable to foresee that sufficient injury could occur in cases where the assault on the claimant’s mind was more gradual in nature. The potential impact on the affected individual could be substantial, underscoring the need for compelling justifications to justify the limitations imposed by this control mechanism.

The approach of the Courts in Cyprus to Secondary Victims

The award of damages for psychiatric injury to secondary victims has also been considered by the courts in Cyprus. In the case of Efthymia Feidia Ioannou and others v. Themistoklis Panayiotou Themistokleous and others, Action No. 728/2015, District Court of Paphos, the Court stated, inter alia, the following:

“The proof of psychiatric injury before a court, arising from a tort committed against another person, is not an easy process. There are legal restrictions which were developed in McLoughlin v. O’Brian and Alcock v. Chief Constable of South Yorkshire Police and which operate as control mechanisms. The approach adopted in Alcock was, and remains, a policy-based approach aimed at limiting the scope of potential secondary victims.”The Court also made extensive reference to the requirements outlined above.

Where the primary victim has died, courts may award bereavement damages to secondary victims pursuant to Section 58 of Cap. 148. Such damages are intended solely to acknowledge the grief and suffering experienced by the surviving family members affected by a fatal accident. The amount payable as bereavement damages is fixed by law and is distributed among the deceased’s relatives as specified in Section 58 of Cap. 148. It is noteworthy that, although the statutory amount was increased to €17,086.01 by Law 154(I)/2002, no further increase has been made since then, despite the fact that 24 years have elapsed since then.

Necessity for Reform

As is evidenced from above, the control mechanisms imposed by the courts on secondary victims have been rigidly enforced in a seemingly arbitrary way. The requirements are perceived as unfair, unjust, and unreasonable in imposing a duty, as they hinder secondary victims from having an equal opportunity for success compared to primary victims when seeking damages for a recognized psychiatric illness. The court’s approach unjustly prevents many claimants with debilitating psychiatric illnesses from being awarded damages due to their inability to overcome the stringent control mechanisms.

Recommendations

To administer justice to those making claims for psychiatric illness, reasonable boundaries must be established.

It is suggested that legislative intervention is needed to establish a coherent and comprehensive framework that ensures fair and just outcomes for all parties involved.

The law should progress by eliminating the requirement for sudden shock in claims for psychiatric illness. This requirement is arbitrary and inadequate, as certain illnesses may develop gradually over time or as a result of a series of events. Embracing a flexible approach to shock-induced recognized psychiatric illness would be advantageous for secondary victims, particularly those experiencing psychiatric harm from the ongoing impact of supporting their loved ones as they endure physical injury. Expert medical evidence should be employed to establish a causal connection and hold a tortfeasor accountable for negligence when they breach their duty of care, resulting in the claimant suffering psychiatric harm.

The legislation should establish a predetermined list of relationships where a close tie of love and affection shall be presumed to exist. However, it should also allow claimants outside of this list to demonstrate that a close tie of love and affection existed between them and the immediate victim. This defined list of relationships should encompass siblings and cohabitants who have lived together for a certain period, ensuring that they are not unfairly excluded from seeking compensation.

A claimant who suffers a reasonably foreseeable and recognizable psychiatric illness as a result of the death, injury of a person with whom they share a close tie of love and affection should be entitled to recover damages from the negligent defendant for that illness. This entitlement should not be contingent upon the claimant’s proximity in time and space to the accident or its aftermath.

By implementing the aforementioned reforms, the law can more effectively address the complexities associated with psychiatric injury while also mitigating concerns regarding fraudulent claims and the possibility of an overwhelming number of claims.

CONCLUSION

The examination of psychiatric injury liability in the UK and common-law jurisdictions, including Cyprus, reveals a complex and evolving legal landscape. Over the years, significant improvements in medical understanding have led to a recognition of psychiatric injury as a serious and debilitating condition. However, despite this recognition, the law has maintained a restrictive approach towards compensating individuals for purely psychiatric harm.

The distinction between physical and psychiatric injury, as well as the differentiation between primary and secondary victims, has created a framework marked by inconsistent application and arbitrary rules. While primary victims, those directly involved in accidents or incidents, have somewhat clearer pathways to compensation, secondary victims, those who witness harm to others, face stringent control mechanisms that often hinder their ability to recover damages.

The existing control mechanisms, articulated in cases like Alcock, have faced widespread criticism for their arbitrariness and unfairness. They impose burdensome requirements on secondary victims, such as proving a close tie of love and affection with the immediate victim and demonstrating proximity in time and space to the incident. These requirements not only complicate the legal process but also disadvantage many deserving claimants, preventing them from obtaining redress for their suffering.

In light of these shortcomings, there is a compelling need for reform in psychiatric injury tort law. Legislative intervention is recommended to establish a coherent and comprehensive framework that ensures fair and just outcomes for all parties involved. This could involve abolishing the requirement for sudden shock, adopting a more flexible approach to causation, and providing a fixed list of relationships where a close tie of love and affection is presumed.

By implementing these reforms, the law can better address the complexities of psychiatric injury while mitigating concerns about fraudulent claims and the potential for an influx of numerous claims. Ultimately, the goal is to create a legal framework that upholds principles of fairness, accountability, and access to justice for individuals suffering from psychiatric harm.

Eva Karrotsaki
Advocate-Legal Consultant
ANDREAS A. PRODROMOU LAW OFFICE