Psychiatric Injury Victims – Are They Protected?

Imagine this: you are watching television on a calm Sunday evening. Suddenly, you receive a phone call, informing you that your spouse got involved in a car accident and did not survive on the trip to the hospital. Devastated, you start to lose appetite as the days go by. Weeks go by and you have absolutely no will to carry on with your daily routine. After a psychiatric evaluation, you find out that you suffer from severe depression.

Of course, one can seek treatment to manage their depression but can you take any legal action in law against the person who caused death to your spouse?

In this article, the author explores damages to a person that may result in psychiatric injury—an area recognised in the tort of negligence.

Psychiatric Injury Victims

Psychiatric injury is often referred to in cases as ‘severe nervous shock’ caused by a plaintiff’s negligent act[1]. There are usually distinctions made in regard to the victims of psychiatric injury, namely primary and secondary victims.

A primary victim is one that is directly involved in the particular incident whilst a secondary victim is one who is just a passive and unwilling witness of the incident[2].

Current Law on Psychiatric Injury

The law on psychiatric injury has always been a grey area. Despite the developments in this area of law, there are constant criticisms on its application in regards to liability of a defendant on secondary victims. This is due to the nature of psychiatric injury on its own – how it is unquantifiable since it cannot be seen by the naked eye and the concern of opening up floodgates to mass claims.

Currently, the Malaysian Courts are inclined to follow the requirements that were laid down in the case of Alcock v Chief Constable of Yorkshire Police. In this case, over 95 deaths and 400 injuries occurred due to a collapse of a stadium as a the South Yorkshire Police was negligent in allowing too many spectators to enter a confined area of a stadium. This accident was broadcasted live on television and also reported in news broadcasts.16 people claimed for nervous shock for seeing the bodies of their relatives at the mortuary or for witnessing the incident at the stadium when it occurred.

The House of Lords laid down three proximity elements that must be fulfilled in cases where people suffer from psychiatric illness due to the witnessing of a ‘traumatic’ incident. These elements are proximity of relationship, proximity of time and space and proximity of perception.

i. Proximity of Relationship

Proximity of relationship concerns the tie between the plaintiff and the person involved in the incident. There is a necessity to show close relationship of love and affection, and this is observed through the nature of their relationships. In order for a claim to be allowed, the plaintiff must rebut the presumption that there is no close tie, though this can be easily rebutted if the nature of the relationship is one of a parent – child, spousal relationships and those alike. Though it may seem clear cut that such close relationships can easily fulfil this requirement, the House of Lords took a narrower approach. To illustrate, even the quality of sibling relationships may vary and will not easily rebut the aforementioned presumption. This brought difficulties for several Plaintiffs who alleged to be deeply affected when they thought their brothers were standing at the area of the stadium that collapsed.

ii. Proximity of Time and Space

While the plaintiff need not be at the scene of accident, they must be in proximate distance or in the immediate aftermath of the event. Although some of the Plaintiffs subsequently went to the place of the accident to identify the bodies, Lord Ackner stated that while the identification process is considered as an aftermath, it was not an immediate aftermath.

iii. Proximity of Perception

The accident must be communicated to the plaintiff with unaided senses. This means that psychiatric injury must be resulted from directly hearing or seeing the event or its immediate aftermath. The Court considers there to be no liability if the news was communicated via a third party. The Plaintiffs Alcock had difficulties to fulfil this criterion, especially since they witnessed the event through live television. There were two reasons: first, none of the images depicted the sufferings of the individuals. There were many edits that made it difficult for one to see what actually occurred to the victims of the accident. Secondly, the images did not give rise to the psychiatric illness that was claimed to be suffered by the Plaintiffs. This was because most Plaintiffs had a close relationship with those injured, and as such the mental disturbance that they suffered were mainly from the confirmation of death or injury of a loved one.

Criticisms to the Requirements in Alcock

i. Narrow Definition of ‘Psychiatric Injury’

It was stated in the case of Alcock that psychiatric injury should generally arise from shock. Other than that, Lord Ackner held in passing that psychiatric injury caused in other ways would ‘attract no damages’. Clearly, this stance precludes any other situation where psychiatric injury may occur, such as illnesses that arise from work-related stress and also depression from the death of a loved one.

Although most argued that the retention of the use of the word ‘nervous shock’ is purely for convenience in labelling other illnesses that arise from emotional stress, this can be confusing in application. The insistence in using the term ‘nervous shock’ can limit any need for expansion in the work ‘psychiatric injury’. It is difficult for plaintiffs to succeed in their claims since the mental injury must only be caused as a reaction to a particular event. The type of mental injury are restricted to the point that even grief-induced psychiatric illnesses are not recognised by the Court[3].

ii. Rigid Requirements for Secondary Victims

Secondary victims are also subjected to the rigidity of the requirements in Alcock. An example would be the proximity in relationship. One may assume that immediate family members automatically fulfil the requirement of ‘proximity in relationship’. However, the House of Lords in Alcock did not make it as easy as it sounds as there are varying degree of close ties, even those that are of sibling-relationship.

An example can be seen from one Brian Harrison, who lost his two brothers from the accident in Hillsborough and Robert Alcock. His brother-in-law died as well. The Court decided that for both cases, there was no evidence of close ties of love and affection. Lord Ackner in his judgment made it clear that the claims were not reasonably foreseeable[4].

In addition to this difficulty, the strict limitation in time and space is also considered as an obstacle. Although it is reasonable to say that one may be deeply traumatized from witnessing the event at a closer range, it is unjust to exclude those who were not able to reach their family members or close relatives and friends. In fact, the pain of waiting and the agony faced by these plaintiffs due to the fear of the unknown might just be the cause of their psychiatric injury[5].

Conclusion

In answering the earlier question posed: are psychiatric injury victims protected? In theory, yes. However, in practice, requirements set out in Alcock are difficult to fulfil and these requirements were applied even narrower – to limit the claims of the secondary victims. A balance must be reached between rigid and flexible requirements in allowing psychiatric injury claims so as to not open up any floodgates and also protect these victims at the same time.

The infographic below summarises the key takeaways discussed in this article:

Written by Syafinas Ibrahim.

[1] Victorian Railways Commissioners v Coultas (1888) 13 App Cas 22.

[2] Alcock v Chief Constable of Yorkshire Police [1992] 1 AC 310.

[3] McLoughlin v O Brian [1983] AC 410. Lord Bridge: the first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness.

[4] 1992] 1 AC 310, 406: The quality of brotherly love is well known to differ widely - from Cain and Abel to David and Jonathan. I assume that Mr Harrison's relationship with his brothers was not an abnormal one. His claim was not presented upon the basis that there was such a close and intimate relationship between them, as gave rise to that very special bond of affection which would make his shock-induced psychiatric illness reasonably foreseeable by the defendant. (Lord Ackner)

[5] Spence v Percy [1992] 2 Qd. r. 299.