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The recovery of compensation

“The Law On The Recovery Of Compensation For Pure Psychiatric Harm Is A Patchwork Quilt Of Distinctions Which Are Difficult To Justify”, Lord Steyn, Frost V Chief Constable Of South Yorkshire Police [1999]2 AC 455 1T 500.

Discuss This Statement In A Critical Evaluation Of The Common Law Duty Of Care For Negligently Inflicted “Nervous Shock”.


This essay aims to provide a critical evaluation of the common law duty of care for negligently inflicted “nervous shock” in the context of the above statement by Lord Steyn. The outcome of the Frost v Chief Constable Of South Yorkshire Police case, in which the House of Lords decided that the plaintiffs ( police officers) who, as a result of assisting the victims of the Hillsborough disaster ,which had been caused by negligence,( for which the Chief Constable was liable) , were not entitled to damages for ‘nervous shock’ , either because their employment relationship gave rise to duties which were not owed to strangers, nor as rescuers , I feel gives credence to this statement by Lord Steyn . In support of my opinion I will discuss and analyse the outcomes of a number of relevant law cases, namely, Dulieu v White and Son[1901]2 KB 669 , Hambrook v Stoke Bros [1925] 1 KB 141, McLoughlin v O Brian (1983) AC 410 310 AT 407, Alcock -v- The Chief Constable of South Yorkshire [1992] 1 AC 310, Page -v- Smith [1995] 2 All ER 736 AT 759, 761 per Lord Lloyd, White v The Chief Constable of South Yorkshire Police[1992]1 AC.310. Such cases highlight to me, that recovery for damages relating to ‘nervous shock’, is probably one of the most controversial and complex areas of modern law. Two recent ‘nervous shock’ cases in Ireland, Fletcher v Commissioners for Public Works [2003] I.L.R.M.94 and Packenham v Irish Ferries Limited [2004] will be discussed , concluding that in Ireland , a policy approach has been adopted based on a standard set of criteria.

Nervous Shock

Before discussing the above cases, it is essential to give a brief outline of the term ‘nervous shock and its history. Nervous shock is a term used in English law to denote psychiatric illness or injury inflicted upon a person by intentional or negligent actions or omissions of another. The most commonly medically recognised illness of this type is Post Traumatic Stress Disorder (PTSD). Up until the early 20th century in England, courts have been reluctant to allow recovery for nervous shock. There was a fear that it would be difficult for the courts to distinguish between a genuine claim and a fictitious claim, and also the fear that if one person recovered, this would in turn lead to a possible ‘floodgate’ of claims. Furthermore, the issue of measurability was a concern. During this period in society there was a view that people of strong moral character did not succumb to their emotions.

In modern times, the issue of liability for ‘nervous shock’ still remains a contentious issue. The courts both in England and Ireland have endeavoured to limit the scope of liability for psychiatric illness, by establishing a set of criteria that a claimant/s must fulfil in order to be entitled to compensation.

English Law

Dulieu V White And Son

In England, the Dulieu v White and Sons [1901]2 KB 66 9 case was a landmark case in terms of the recovery of claims for psychiatric illnesses. In my opinion, this case illustrates a change of approach in relation to ‘nervous shock’ recovery. Prior to this, the initial response of the common law to claims relating to nervous shock, was to deny responsibility. In this case, the British High Court ruled that a plaintiff, a bar maid, could recover damages for nervous shock even though no actual impact was involved in the accident. Although the plaintiff did not suffer physical injury, the traumatic incident (a driver lost control of his team of horses and drove them into the building where the plaintiff was working behind her husband’s bar) led to nervous shock and the premature birth of her child. The outcome of this case is particularly note worthy. In this instance, mental illness was accompanied by a physical trauma i.e. miscarriage. Also the plaintiff had to establish that the ‘nervous shock ‘caused by the accident, resulted from her fear for her own safety. The outcome of this case would undoubtedly, in my opinion, have set a precedent for future cases relating to ‘nervous shock’ claims, both in England and Ireland.

Hambrook V Stoke Bros

The later case Hambrook v Stoke Bros, highlights a number of other issues relating to duty of care and further developed claims for nervous shock .In this case, damages were awarded even though the person suffering nervous shock did not witness the incident, but was close by, and the shock was suffered as a result of fear, not for her own safety, but that of her child. Interestingly, in this instance, the courts decided that it was not necessary for the plaintiff to actually witness the incident. This successful claim, led to a further limitation being developed, namely, that it would not be sufficient to fullfil the proximity requirement to be told of the accident by a third party.( as what happened in this particular case ) . This principle was later applied in Alcock v Chief Constable of South Yorkshire Police.

Mc Loughlin V O Brian

Having studied this case, I feel it is significant for a number of reasons. The test of reasonable foreseeability was applied and issues of space, time and relationship were considerations in determining the degree of foreseeability of psychiatric illness. The facts of this case are, on the 19th October 1973, a friend came to the claimant’s house to tell her of a serious accident involving her husband and three children, two hours after it had occurred. He drove her to the hospital where she saw her dead daughter, and her husband and two other children seriously injured, all still covered in oil and mud. She suffered serious nervous shock as a result and sued the defendant who was responsible for the accident. The House of Lords, although divided in as to their reasoning, delivered a judgment in favour of the plaintiff. Firstly the court held that despite the fact that the plaintiff was approximately two miles away from the incident and did not arrive at the hospital until one hour after the incident; the scene at the hospital (all victims were still covered in mud and oil) was such to render her proximate to the accident. Lord Bridge in McLoughlin v O’Brian required that a plaintiff must not merely suffer “grief, distress or any other normal emotion, but a positive psychiatric illness”. At common law a distinction is drawn between what is merely the ordinary emotion of grief, anxiety, fear and transient shock which does not constitute sufficient damage and the recognisable psychiatric illness that is established by expert medical evidence. Lord Goff said: “because ‘shock’ in its nature is capable of affecting so wide a range of people, there is a real need for the law to place some limitation upon the extent of admissible claims”. Lord Wilberforce argued that it was necessary to develop further criteria including strict proximity in time, a close relationship, direct means of communication (personal witness). Hearing about it from someone else would not suffice. The issue of communication by television was raised but not adequately dealt with. The claimant must show that his / her injury was reasonably foreseeable, although Lord Wilberforce did state that “foreseeability does not of itself automatically lead to a duty of care.” Initially Lord Bridges viewpoint held but Lord Wilberforce argument gathered credence,as evident in the following case.

Alcock V Chief Constable Of The Southyorkshire Police

In Alcock v Chief Constable Of South shire Police [1992] 1 AC 310, 407, Lord Oliver introduced a broader classification of the “primary victims” as including those “involved, either mediately or immediately or , as a participant” in the event causing them psychiatric illness. The case Alcock v Chief Constable of Yorkshire Police relates to claims brought by Alcock and several other claimants after the Hillsborough disaster in 1989. Ninety six Liverpool fans were killed and many more seriously injured in a massive crush during the FA Cup Semi Final at Hillsborough Stadium in Sheffield . Many of the spectators saw their friends and relatives die in the crush and suffered nervous shock after the incident. Many of the claimants witnessed horrific images and scenes of carnage on the television . Others identified bodies in temporary constructed morgues in the stadium. The claimants were secondary victims. However, they did not fulfill a number of criteria (Wilberforce test as in previous case). Firstly shock had to occur as a result of what the plaintiff witnessed from his / her unaided senses .This required that the plaintiffs be close to the event. Many of the claimants failed in the requirement of proximity of place. A number of claimants had witnessed the horrific scenes on the television or had been informed by a third party. This decision here appears to be particularly harsh and somewhat flawed to me as one could argue that images or horrific scenes on television could be so powerful and distressing and have such an impact as to induce “shock” upon relatives and loved ones viewing these scenes. A possible suggestion for not allowing compensation in this instance may be directly related to a fear of a floodgate of claims if some claimants were successful. Others failed the close ties of love and affection . Close ties of love and affection was assumed in relation to parent- child and spouse relationships. However in relation to claims brought by siblings this close relationship had to be proven by evidence. Again this development of the proximity of relationship in this case seems quite unfair to some of the claimants who were seeking compensation as they would not have been aware previously of this .The principle of proximity of time and place was also applied in this case, where a claimant failed to recover. In this instance, a victim’s brother in- law visited the stadium make shift morgue a few hours after the disaster . However , he was failed to meet the criteria of ‘immediate aftermath of the disaster’. Interestingly, it was also stated the purpose of the visit was to identify the body and not to aid the injured or rescue victims as in other compensation cases.

Page V Smith

The facts of this case are as follows, the plaintiff, Mr. Page, was involved in a minor car accident, and was physically unhurt in the collision. However the crash did result in a recurrence of magic encephalomyelitis (Chronic fatigue syndrome) from which he had suffered for 20 years but was then in remission. The defendant admitted that he had been negligent, but said he was not liable for the psychiatric damage as it was unforeseeable and therefore not recoverable as a head of damage .The Page v Smith case is significant in that it enhanced the distinction between primary and secondary victims. The plaintiff, Mr Smith was deemed to be a primary victim, since he was involved in the accident and risked personal injury. No issues of

foreseeability of psychiatric shock needed to be considered. In other words psychiatric shock was to be treated as direct personal injury. Although he did not suffer physical injury, the crash he claimed resulted in chronic fatigue syndrome. This was not the situation prior to this case. The distinction between primary and secondary victims is well worth noting. Prior to the Page v Smith case it was assumed that reasonable foreseeability of psychiatric illness was required in all cases of negligently inflicted psychiatric illness and that all such plaintiffs must be persons of normal disposition.. The House of Lords (by a majority) in Page v Smith, enhanced the recovery of the primary victim over the secondary victim. A primary victim could now recover for psychiatric illness even when this is not reasonably foreseeable, so long as the physical injury, which need not actually occur, is foreseeable. Recovery, on the other hand, for a secondary victim is differentiated and is much more restricted. At common law the secondary victims (like the bystanders or spectators) who suffer psychiatric illness as a result of witnessing a defendant negligently endangering or injuring others who are unrelated to them in love and affection, cannot recover. A rescuer or an employee suffering such psychiatric illness is also classified as a secondary victim (unless they are themselves endangered in the event). However, these two categories of secondary victims are exceptionally allowed to recover at common law even without a close tie of love and affection between them and the immediate victims, as required of other secondary victims.

White V Chief Constable Of Yorkshire Police

This case also relates to the Hillsborough disaster. In this instance police officers were seeking compensation on the basis that they had suffered psychiatric illness as a result of rescuing victims after the crush. They claimed that because they were rescuers they should be treated as ‘primary victims’. The distinction between primary victim and secondary victim was made in the Alcock v Chief Constable of South Yorkshire Police, where all claimants were secondary victims. In Page v Smith this distinction was further developed.

The Court of Appeal in Frost v Chief Constable of Yorkshire Police [1997] 3 WLR 1194 (by a majority) had held that the police officers who were allowed to recover for their psychiatric illness as a result of carrying out their professional duties as rescuers and/or employees at the disastrous Hillsborough football stadium stampede were classifiable as primary victims.

The House of Lords however, held that for the purposes of distinction between primary and secondary victims, that rescuers were not in a special position in the law. They could only recover if they were exposed to physical danger as primary victims. Since they were not endangered in the discharge of their service or in rescuing, as employees and/or rescuers, the police officers were only secondary victims. As secondary victims they, like the bystanders or spectators, were not entitled to recover damages for their psychiatric illness.

Interestingly, in White v Chief Constable of South Yorkshire Police the plaintiffs ( police officers ) relied on cases such as Dooley v Cammell Laird [1951] 1 Lloyd’s Rep 271, Galt v British Railways Board [1983] 113 NLJ 870, Wiggs v British Railways Board. but the court dismissed their claims for damages, claiming that they did fulfill the criteria of ‘rescuers’. In relation to employer/employee relationship and duty of care the courts did not uphold the principles of the above cases.

It appears in analysing this case that the House of Lords were conscious of the judgment made in the Alcock case. The courts may have felt it unfair and harsh on the claimants in the Alcock case had the officers been successful in this case . However, the decision in the case of Dooley V Cammen Laird preserved the distinction between primary and secondary victim. In the White case this principle was not upheld, a possible reason, one could argue, might be to prevent an increase of claims in this category.

Nervous Shock Claims In The Context Of Irish

The Irish courts have been much more responsive in allowing recovery for nervous shock. No rule of public policy exists that excludes claim for nervous shock . Byrne v Southern and Western RY .Co. of Ireland (1884) illustrate that even though no physical injury occurred, the plaintiff was clearly in physical danger and therefore was allowed recovery. In Kelly v Hennessy [1995] 3IR.253 CJ Hamilton laid down criteria, which have become the standard test for nervous shock. Courts said the following elements are necessary to establish liability for nervous shock The plaintiff must establish that he suffered a recognizable psychiatric illness, the illness must have been ‘shock induced’; caused by the defendant’s act or omission. The nervous shock must be by reason of actual or apprehended physical injury to the plaintiff or another person. The plaintiff must show that the defendant owed duty of care not to cause the reasonably foreseeable nervous shock. These standard criteria have made it more difficult to claim damages in Irish courts.

The 2003 decision of Fletcher v Commissioners for Public Works clearly demonstrates this point. In this case the plaintiff was exposed to asbestos dust. It was argued that the defendants had failed to take adequate precautions to protect the plaintiff. The plaintiff sought medical advice and was told there was a risk that he could contract mesothelioma. He was told however that the risk was very remote. The plaintiff worried excessively and developed reactive anxiety neurosis, a psychiatric illness.

The Supreme Court’s decision was to disallow recovery as there was no more than a remote risk of contracting a disease. CJ Keane criticized the logic of distinguishing between psychiatric illnesses resulting from a traumatic event as opposed to suffering grief in its aftermath. Only recognisable psychiatric illness would qualify for in such claims. In a subsequent case, Packenham v Irish Ferries Limited this principle was upheld and damages were not awarded as there was no recognized psychiatric illness. Both these two cases which involved the plaintiff being exposed to asbestos highlight the strictness of the Irish law in respect to such claims. The ‘floodgates’ argument may be a possible reason for this. Irish courts do not use space / time or relationship as limiting factors as applied in some of the previous English cases , but rather these factors are taken into account, although the position in relation to the latter may be changing as evident in Cuddy v May. Kearns J [2003] stated “the category of relationships entitled to successfully claim damages for nervous shock should be tightly restricted.”


All of the aforementioned cases demonstrate clearly that claims relating to ‘nervous shock’ are indeed highly complex and, in my opinion, some of the outcomes seriously flawed. Over the years as claims have increased, while it is arguable, for a need for criteria to be developed , to prevent a ‘floodgate of claims’ , one has to feel that some of the decisions , particularly in relation to cases such as Alcock v Chief Constable of South Yorkshire Police , appear to be particularly harsh , in respect of the claimants. In the Irish context, a different policy approach has been adopted and it appears to be more difficult to recover damages in relation to ‘nervous shock’ , the strict criteria which have been laid down clearly demonstrate this viewpoint. I conclude by wholeheartedly agreeing with Lord Steyns statement that “The Law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify” and I feel, the cases discussed in this essay clearly support my viewpoint.


John Cooke 2007 Law of Tort 8th Edition

Ursula Connolly Tort 2nd Edition

The Law Commission Report, Liability for Psychiatric Illnesses

Case Reference

Dulieu v White and Son [1901]2 KB 669,

Hambrook v Stoke Bros [1925] 1 KB 141,

McLaughlin v O Brian (1983) AC 410 310 AT 407

Page -v- Smith [1995] 2 All ER 736 at 759, 761 per Lord Lloyd.

Alcock -v- The Chief Constable of South Yorks [1992] 1 AC 310

Frost v Chief Constable of Yorkshire Police [1997] 3 WLR 1194

White v Chief Constable of the Yorkshire Police [1998] 3 WLR 1509

Fletcher v Commissioners for Public Works [2003] 2 I.L.R.M.94

Packenham v Irish Ferries Limited [2004]

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