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Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries

Published online by Cambridge University Press:  09 November 2009

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The devastating impact that psychiatric illness can have on people's lives is beyond dispute. It would be absurd to contend that such harm is somehow intrinsically less serious than physical injury; indeed, over many years, medical research has pointed to the artificiality of characterising it as lacking physical manifestations. Its destructive potential is brought into sharper focus as mental attributes become ever more integral to everyday functioning. Yet, to this day, neither popular nor judicial opinion is noticeably receptive to a cause of action based on proof of a “recognised psychiatric disorder”, which is still often trivialised by the label “nervous shock”. This negative attitude is most apparent when claimants are not, or are not regarded as, the direct victims of someone else's conduct. The very notion of compensating people whose suffering derives from their reaction to the injuring of others often evokes surprise, indignation and disdain.

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The Cambridge Law Journal , Volume 57 , Issue 1 , March 1998 , pp. 91 - 122
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Copyright © Cambridge Law Journal and Contributors 1998

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References

1 See Mullany, N.J. and Handford, P.R.M., Tort Liability for Psychiatric Damage, (1993) at pp. 27–31.Google ScholarCf. “There is no justification for regarding physical and psychiatric injury as different ‘kinds’ of damage“: Page v. Smith [1996] A.C. 155 at p. 190, per Lord Lloyd of Berwick.

2 For most practical purposes, a condition so categorised in the World Health Organisation's International Classification of Diseases and Related Health Problems (Tenth Revision, Vol. 1, 1993) (I.C.D.-10) or the American Diagnostic and Statistical Manual of Mental Disorders (4th Edition, 1994)(D.S.M.-I). Prominent among these conditions are Post-Traumatic Stress Disorder (P.T.S.D.), depressive illness and a range of anxiety states. P.T.S.D. is distinctive in that the diagnosis depends on exposure to an external and severely traumatic event, outside the range of usual human experience. It is characterised, inter alia, by “re-experiencing” that event. See further, Mullany, and Handford, , op. cit., at pp. 224–242Google Scholar and Law Commission, Liability for Psychiatric Illness (Law Com. Consultation Paper No. 137, 1995), Part III.

3 Cf. “Two propositions are agreed between Counsel. The first is that the term ‘nervous shock’ is shorthand for psychiatric illness caused by shock”: Sion v. Hampstead Health Authority (1994) 5 Med.L.R. 170 at p. 173. The term was first used in connection with psychological injury by a professor of surgery: Erichsen, J.E., On Railway and Other Injuries of the Nervous System (1866).Google Scholar It is no longer employed in medicine.

4 29 November 1991.

5 Frost v. Chief Constable of South Yorkshire Poliee [1997] 3 W.L.R. 1194.

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10 See, e.g. Victorian Railways Commissioner v. Coultas (1888) 13 App.Cas. 222.

11 The unwillingness of several appellate judges to concede the foreseeability of injury through “nervous shock” when cars collide at 30 miles per hour (Page v. Smith [1996] A.C. 155; [1994] 4 All E.R. 522, C.A.) might be seen as a recent example of the “‘pull yourself together’ school of legal analysis”: Jones, M.A., “Liability for Psychiatric illness-More Principle, Less Subtlety?” Web Journal of Current Legal Issues Yearbook 1995 (1995) 258, at p. 259.Google Scholar See also, n. 164 below.

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13 Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310 and Page v. Smith [1996] A.C. 155. Leave to appeal to the House of Lords has been granted in Frost, op. eit., n. 5 above.

14 Ibid.

15 [1983] 1 A.C. 410.

16 [1992] 1 A.C. 310, at p. 418.

17 See Frost, op. cit., n. 5 above.

18 ibid. See Mullany, N.J., “Psychiatric damage in the House of Lords—Fourth time unlucky: Page v. Smith”, (1995) 3 J.L.M. 112Google Scholar; Trindade, F.A., “Nervous Shock and Negligent Conduct” (1996) 112 L.Q.R. 22Google Scholar, and pp. 111–114 below.

19 E.g., Alcock, text at n. 16, above, per Lord Oliver; M (a Minor) v. Newham London Borough Council [1995] 2 A.C. 633 at p. 664 per Bingham M.R. (C.A.); McLoughlin v. O'Brian [1983] 1 A.C. 410 at p. 431, per Lord Bridge; Hevican v. Ruane [1991] 3 All E.R. 65. See also Campbelltown City Council v. Mackay (1989) 15 N.S.W.L.R. 501 at p. 503 per Kirby P. and Coates v Government Insurance Office (NSW) (1995) 36 N.S.W.L.R. 1 at pp. 9–11, per Kirby P.

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24 Mullany, and Handford, , op. cil., n. 1 above, at p. 304.Google Scholar See also Mullany, “Fear for the Future: Liability for Infliction of Psychiatric Disorder”, in Mullany, (ed.), Torts in the Nineties (1997).Google Scholar

25 Stapleton, , op. cil., n. 22 above, at p. 95.Google Scholar

26 Ibid.

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28 Sometimes called “litigation neurosis”, or “accident neurosis”.

29 By doctors as well as lawyers. See, e.g., Page, H.W., Injuries of the Spine and Spinal Cord and Nervous Shock (1883).Google Scholar One early American view of “railway spine” was that “… cities and corporations are robbed of vast sums of money yearly by malingerers, aided by unscrupulous legal talent, and by ignorant or dishonest surgeons”: Judd, H., “The medico-legal aspect of concussion of the spine”, Journal of the American Medical Association: 1889; 13: 188CrossRefGoogle Scholar, at p. 194. See also Smith, H.W. and Solomon, H.C., “Traumatic neuroses in court” (1943) 30 Vancouver Law Review 87CrossRefGoogle Scholar, arguing for more restrictive liability to discourage the emergence or prolongation of neurotic symptoms in predisposed persons.

30 Ison, T.G., “Therapeutic significance of compensation structures” (1986) 64 C.B.R. 605Google Scholar, at p. 612. Perhaps wisely, in view of its ambiguous nature, Stapleton avoids the expression.

31 Where he justified the retention of artificial restrictions in the case of “secondary victims” by concern not to “open the door too wide”: [1996] A.C. 155, at p. 189.

32 To which Lord Lloyd also alluded in Page v. Smith: ibid.

33 Victorian Railways Commissioner v. Coultas (1888) 13 App. Cas. 222.

34 “Accident Neurosis” Brit. Med. J. 1, 919–925, 992–998 (1961). See below, at pp. 98–99. See also Hon, Rt. Sir. Lawton, F., “A Judicial View of Traumatic Neurosis” (1979) 47 Medico-Legal Journal 6.Google Scholar

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36 Ison, op. Cit., n. 30 above, at p. 616, n. 32. It is true that at the Court of Appeal stage in McLoughlin v. O'Brian, Stephenson LJ did invoke “beneficence”: “I derive some comfort from reflecting that to encourage such claims … would also do a grave disservice to many sufferers from nervous shock and mental injury, which may be exacerbated and prolonged or even made incurable by the anxieties of litigation”. [1981] Q.B. 599, at p. 616. However, a Lexis search of June 1997 reveals only 17 cases in which the expression “compensation neurosis” appears at all, and only three cases refer to “litigation neurosis”.

37 [1969] 1 W.L.R. 903.

38 Ibid., at p. 908.

39 Lawton, , op. cit., n. 34 above, at p. 8.Google Scholar

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41 Ibid., at p. 259.

42 Tarsh, M.J. and Royston, C., “A Follow-up Study of Accident Neurosis”, Br.J.Psychiatr. 146, 18–25CrossRefGoogle Scholar, at p. 18. See also Lawton, , op. cit., n. 34Google Scholar above.

43 See Mendelson, , op. cit., n. 35Google Scholar above. A number of American nineteenth century studies had also found no significant difference in patients' symptoms according to whether or not they were litigants. See e.g., Knapp, P.C., “Traumatic nervous affections. An attempt at their classification based on a study of ninety cases”, (1892) 104 The American Journal of the Medical Sciences 629, 641.Google Scholar

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46 Vincent, C. and Robertson, I.H., “Recovering from a medical accident: the consequences for patients and their families”, in C. Vincent, et al., Medical Accidents (1993), at p. 163.Google ScholarCf. ”… the promise or payment of compensation following accidents appears to have little bearing on symptom generation … or perpetuation”: Cohen, R.I. and Pfeffer, J.M., “Accident Neurosis Revisited”, (1987) 27 Med.Sci.Law 177CrossRefGoogle ScholarPubMed, and Ison, , op. cit., n. 30Google Scholar above, at pp. 606–607. See also Bryant, B., Mayou, R., and Lloyd-Bostock, S., “Compensation Claims following Road Accidents: a six-year follow-up study”, (1997) Med.Sci.Law 326CrossRefGoogle ScholarPubMed, at p. 335. Miller himself said that accident neurosis is “characteristically a complication of minor or trivial injury and is rare after serious accidents…”: op. cit., n. 40 above, at p. 258.

47 Evans, R.W., “The Effects of Litigation on Treatment Outcome with Personal Injury Patients”, (1994) American Journal of Forensic Psychology 12; 4: 19Google Scholar, 20–23, 30.

48 Cf. “… some patients will consciously minimize a history or symptoms of emotional illness because of embarrassment, shame or the wish to deceive and hide the condition from others …”: Hoffman, B.F., et al. The Emotional Consequences of Personal Injury (1992), at p. 114.Google Scholar

49 See Law Commission, Consultation Paper No. 137, op. cit., n. 2 above, at para. 4.8. Cf. “Overall, I would put such risks as being no greater than in, say, cases involving back injuries …”: Frost, op. cit., n. 5 above, at p. 1207, per Henry L.J.

50 Mullany, and Handford, , op. cit., n. 1Google Scholar above, at p. 314; Cane, P., Atiyah's Accidents, Compensation and the Law (5th edn., 1993), at p. 75.Google Scholar

51 Vincent, and Robertson, , op. cit, n. 46Google Scholar above, at p. 162.

52 Tarsh, and Royston, , op. cit., n. 42Google Scholar above, at p. 22.

53 See n. 1, above.

54 Darwin, C., Expression of the Emotions in Man and Animals (1872).Google Scholar

55 Mendelson, D., “The Defendants' Liability for Negligently Caused Nervous Shock in Australia—Quo Vadis?”, (1992) 18 Monash Univ.L.Rev.16, at p. 23.Google Scholar

56 McCulloch, M., ei al., “Post Traumatic Stress Disorder: turning the tide without opening the floodgates”, (1995) 35 Med.Sci.Law 287CrossRefGoogle ScholarPubMed, at p. 289.

57 van der Kolk, B.A. (ed.), Post-Traumatic Stress Disorder: Psychological and Biological Sequelae (1984).Google Scholar

58 Cf. Mullany, and Handford, , op. cit., n. 1 above, at p. 27Google Scholar, n. 69 and accompanying text.

59 As early as 1890, Irish judges were prepared to allow actions for purely psychiatric harm. See Bell v. Great Northern Railway Co. of Ireland (1890) 26 L.R.Ir. 428, at p. 431, where Palles C.B. criticised Victorian Railways Commissioner v. Coultas in the following terms'. “Further the judgment assumes, as a matter of law, that nervous shock is something which affects merely the mental functions, and is not in itself a peculiar physical state of the body. This error pervades the entire judgment”. Cf. Dulieu v. White & Sons [1901] 2 K.B. 669, at pp. 675–677 per Kennedy J.

60 [1925] 1 K.B. 141, at p. 154.

61 (1989) 15 N.S.W.L.R. 501, at p. 503.

62 “In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded”. [1996] A.C. 155, at p. 188, per Lord Lloyd.

63 Reilly and Reilly v. Merseyside Regional Health Authority [1995] 6 Med.L.R. 246 at p. 249, per Mann L.J. Emotions such as anxiety and “mere grief and sorrow” do not sound in damages: Blake v. Midland Ry. Co. (1852) 21 LJ.Q.B. 233; Hinz v. Berry [1970] 2 Q.B. 40. Cf. Nicholls v. Rushton (1992), The Times, 19 June.

64 E.g. Whitmore v. Euroways Express Coaches Ltd., (1984) The Times, 4 May; Brown v. Mount Barker Soldiers’ Hospital [1934] S.A.S.R. 128; Swan v. Williams (Demolition) Pty. Ltd. (1987) 9 N.S.W.L.R. 172.

65 Cf “Perhaps the best reason for refusing recovery for mere emotional distress is that, if one looks at the priorities for compensation, emotional distress ranks lower down the list than physical harm caused by impact and the recognised psychiatric damage that is the subject of ‘nervous shock’ cases”: Mullany, and Handford, , op. cit, n. 1 above, at p. 44.Google Scholar

66 Adshead, G., “Psychological Trauma and its Influence on Genuine and False Complaints of Sexual Assault”, (1996) 36 Med.Sci.Law 95.CrossRefGoogle ScholarPubMed

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68 Cf. “… the main attraction of the German approach may … lie in the fact that it makes the seriousness of the harm the determinative factor rather than basing recovery on such fortuitous elements as the plaintiffs proximity to the scene of the accident or his familial relationship with the primary victim”: Markesinis, B.S., The German Law of Torts (1994, 3rd edn.), at p. 39.Google Scholar

69 Law Com. Consultation Paper No. 137, op. cit., n. 2 above, at para. 1.9.

70 Under the American Psychiatric Association's classification of mental diseases or disorders, op. cit., n. 2 above, it is a diagnostic criterion for P.T.S.D. that the disturbance lasts for more than one month: American Diagnostic and Statistical Manual of Mental Disorders (4th edition, 1994) para. 309.81, p. 424.

71 [1991] 2 All E.R. 293 (junior doctor's working hours). See also Petch v. Customs and Excise Commissioners [1993] I.C.R. 789.

72 [1995] 1 All E.R. 737 (overburdened social worker).

73 A. Sprince, “Page v. Smith-being ‘primary’ colours House of Lords’ Judgment”, (1995) 11 P.N. 124, at p. 126.

74 Mughal v. Reuters Ltd. [1993] I.R.L.R. 571.

75 Earnshaw, J. and Cooper, C.L., “Employee stress litigation: the UK experience”, Work and Stress: 1994; 8: 287CrossRefGoogle Scholar, at p. 289.

76 Race Relations Act 1976, s. 57(4); Sex Discrimination Act 1975, s. 66(4).

77 Most recently the Protection from Harassment Act 1997. Cf. Criminal Justice and Public Order Act 1994, s. 154; Telecommunications Act 1984, s. 43, and the Malicious Communications Act 1988, s. 1(1).

78 Khorasandjian v. Bush [1993] Q.B. 727-overruled in this respect by Hunter v. Canary Wharf Ltd. [1997] A.C. 655 (Lord Cooke of Thorndon dissenting). In Khorasandjian v. Bush, the telephone calls were deemed actionable as nuisance on grounds of inconvenience and annoyance, and would have been even in the absence of any potential threat to health by virtue of their content: Dillon L.J. [1993] Q.B. 727, 735. Cf. Burnett v. George [1992] 1 F.L.R. 525.

79 Birks, P., “Harassment and Hubris: The Right to an Equality of Respect”, John Maurice Kelly Memorial Lecture (1996), at pp. 52–53.Google Scholar

80 Cf. Protection from Harassment Act 1997, s. 1.

81 S. 3.

82 Protection from Harassment Act 1997, s 3(2).

83 Lord Lloyd, Lord Hoffman and Lord Hope concurring.

84 Hunter v. Canary Wharf Ltd. [1997] A.C. 655, 693. Emphasis added.

85 Ibid., at 691–692.

86 Courts and Legal Services Act 1996, s. 8.

87 “In Restraint of Tort”, op. cit., n. 22 above, at p. 83.

88 Bloustein, E.J., “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser”, (1964) 39 New York U.L.R. 962Google Scholar, cited in Birks, , “Harassment and Hubris”, op. cit., n. 79 above, at p. 5.Google Scholar

89 See Page v. Smith [1996] A.C. 155, at p. 197. per Lord Lloyd.

90 “In fiction, and perhaps in a layman's view of shock as a psychological event, the individual experiences a grossly untoward event or situation with one or more sensory modalities but almost always vision, and is instantaneously ‘shocked’ or traumatised. In practice this almost never occurs …”: expert medical report of Professor Sims in Frost, op. cit., n. 5 above, at p. 1207.

91 Teff, H., “The Requirement of ‘Sudden Shock’ in Liability for Negligently Inflicted Psychiatric Damage”, (1996) 4 Tort L.Rev. 44.Google Scholar

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93 See, e.g. Sion v. Hampstead Health Authority [1994] 5 Med.L.R. 170, and Taylorson v. Shieldness Produce Ltd. [1994] P.I.Q.R. 329, C.A. It is of interest that some such claims had previously been settled. See Lewis, C.J., Medical Negligence (3rd ed., 1995), at p. 244.Google Scholar

94 E.g. McLoughlin v. O'Brian [1983] 1 A.C. 410; Jaensch v. Coffey (1984) 155 C.L.R. 549; Chadwick v. British Transport Commission [1967] 1 W.L.R. 912.

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96 [1997] 3 W.L.R. 1194, at pp. 1208–1209.

97 Jaensch. n. 94 above, at p. 607, per Deane J. See further pp. 117–120 below.

98 Just as—such is the fluidity of the jurisprudence—Page v. Smith almost casually discarded, for primary victims, the control mechanisms seemingly dictated by the “developed principles” in this particular pocket of negligence law. See Mullany, N.J., “Psychiatric damage in the House of Lords-Fourth time unlucky: Page v. Smith” (1995) 3 J.L.M. 112.Google Scholar

99 Jaensch, n. 94 above, at pp. 603–604, per Deane J.

100 McLoughlin [1983] 1 A.C. 410, at p. 431. Emphasis added.

101 Donoghue v. Stevenson [1932] A.C. 562, at p. 581.

102 (1984) 155 C.L.R. 549, at p. 584. See further, pp. 117–118 below.

103 Ibid, at p. 607.

104 (1995) 36 N.S.W.L.R. 1, per Gleeson C.J. and Clarke J.A.

105 Jaensch, n. 94 above, at pp. 608–609.

106 Coates. n. 19, at pp. 10–11.

107 Quayle v. State of New South Wales (1995) Aust. Tort Reps. 81–367.

108 “Recovery for Psychiatric Injury by Report: Another Small Step Forward”. (1996) 4 Tort L. Rev. 96, at p. 101. Mullany points out that among the causes of P.T.S.D., the American Psychiatric Association's classification (D.S.M.-IV) includes “learning of a traumatic event.

109 (1995) 36 N.S.W.L.R. 1, at p. 11.

110 Mendelson, , op. cit., n. 55 above, at p. 55.Google Scholar See also Trindade, , “The Principles Governing the Recovery of Damages for Negligently Caused Nervous Shock”, (1986) 45 C.L.J. 476CrossRefGoogle Scholar, at pp. 478–480.

111 Alcock [1992] 1 A.C. 310.

112 See e.g. Taylorson [1994] P.I.Q.R. 329.

113 Cf. “… facts more subtle than the compelling ones alleged in the complaint” would require lines of demarcation “in the absence or reduced weight of some of the [indicative] factors.” Dillon v. Legg (1968) (Calif. S.C.) 441 P.2d 912, at p. 921, per Tobriner J.

114 [1996] A.C. 155, at p. 189, per Lord Lloyd.

115 Ibid., at p. 184.

116 Which Lord Lloyd saw as “of cardinal importance”: ibid.

117 For primary victims, see e.g. Brice v. Brown [1984] 1 All E.R. 997, at pp. 1006–1007, per Stuart-Smith J. Cf. Dooley v. Cammell Laird & Co. Ltd. [1951] 1 Lloyd's Rep. 271; Chadwick v. British Railways Board [1967] 1 W.L.R. 912 and Attia v. British Gas Pic. [1988] Q.B. 304. See also Bourhill v. Young [1943] A.C. 92; King v. Phillips [1953] 1 Q.B. 429, at p. 441, and Overseas Tankship (U.K.) Ltd. v. Marts Dock & Engineering Co. Ltd. (The Wagon Mound (No. 1)) [1961] A.C. 388, at p. 426.

118 See Law Com. Consultation Paper No. 137, op. cit., n. 2 above, at paras. 2.10 and 5.13.

119 Page v. Smith [1996] A.C. 155.

120 E.g. Trindade, , op. cit., n. 18Google Scholar above, and Sprince, , op. cit., n. 73Google Scholar above.

121 Lord Lloyd himself said that, in cases like Schneider v. Eisovitch [1960] 2 Q.B. 430 and Brice v. Brown [1984] 1 All E.R. 997, the plaintiff is both a primary and a secondary victim.

122 See Trindade, , op. cit., n. 18Google Scholar above.

123 Frost [1997] 3 W.L.R. 1194.

124 As in Baker v. T.E. Hopkins & Son Ltd. [1959] 1 W.L.R. 966.

125 See Frost.

126 Ibid., at p. 1213.

127 Except for the appellant who was not on duty at the ground, but at the local hospital.

128 See especially Judge L.J. (dissenting).

129 Frost, at p. 1203.

130 Ibid., at pp. 1206–1207.

131 See especially Butler, D.. “Proximity as a Determinant of Duty: The Nervous Shock Litmus Test” (1995) 21 Monash U.L.Rev. 159.Google Scholar

132 See pp. 117–120, below.

133 Fleming, J.G., The Law of Torts (8th edn., 1992), at p. 179.Google ScholarCf. Alcock [1992] 1 A.C. 310, at p. 409, per Lord Oliver of Aylmerton, who observed that, foreseeability notwithstanding, “… such persons are not, in contemplation of law, in a relationship of sufficient proximity or directness with the tortfeasor to give rise to a duty of care”: ibid., at p. 410, See also Kirby, P., in Coaies (1995) 36Google Scholar N.S.W.L.R. 1, cited n. 19 above, at p. 11: “To draw a line and to expel from recovery all third party claims for nervous shock may be harsh. But it is at least rational and manageable in practice”.

134 Hambrook v. Stokes Bros. [1925] 1 K.B. 141.

135 Ibid., at p. 163. Cf. “… the supposed rule that only relatives can be heard to complain is apparently a transposition of what was originally a humane and ameliorating exception to the general denial that damages could be had for nervous shock. Close relatives were put in an exceptional class”: Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383, at p. 404, per Windeyer J. See also, Howarth, , Textbook on Tort (1995), at pp. 254–259.Google Scholar

136 Jones, op. lit., n. 11 above, at p. 271.

137 Alcock, op. cit. [1992] 1 A.C. 310, at p. 416. per Lord Oliver of Aylmerton, and at p. 397, per Lord Keith of Kinkel. Cf. Jaensch v. Coffey (1984) 155 C.L.R. 549, n. 94, at pp. 600–601, per Deane J. Cf. “The consequences of the perception … depend on the emotional meaning of the event”: McCulloch, el al., op. cit., n. 56 above, at p. 291.Google Scholar On the readiness of various jurisdictions to compensate such “secondary” victims, whether via the general law or under specific statutory regimes, see Mullany, and Handford, , op. cit., n. 1 above, at pp. 102–105.Google Scholar

138 “The incontrovertible medical fact of the matter is that the psychiatric equilibrium of the vast majority of community members is not disturbed by even the most severe traumatic stimuli”: Mullany, , op. cit., n. 98 above, at pp. 118–119.Google Scholar

139 G.C. Christie, “The Uneasy Place of Principle in Tort Law”, in Owen, D.G. (ed.). Philosophical Foundations of Tort Law (1995), at p. 128.Google ScholarCf “… in the end, it has to be accepted that the concept of ‘proximity’ is an artificial one which depends more upon the court's perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction”: Alcock [1992] 1 A.C. 310, at p. 411 per Lord Oliver. Emphasis added.

140 Stapleton, , op. cit., n. 22 above, at p. 87.Google Scholar

141 Cf. “I … believe that the courts in general and your Lordships' House in particular ought to think very carefully before resorting to public policy considerations which will defeat a claim that ex hypothesi is a perfectly good cause of action”: Spring v. Guardian Assurance [1995] 2 A.C. 296, at p. 326, per Lord Lowry.

142 [1990] 2 A.C. 605.

143 See, Steele, J., “Scepticism and the Law of Negligence” (1993) 52 C.L.J. 437CrossRefGoogle Scholar, especially at pp. 450–453.

144 Cf. T. Weir, “Errare Humanum Est”, in Birks, (ed.), The Frontiers of Liability, op. cit., n. 22 above, pp. 103–110.Google Scholar

145 Jaensch (1984) 155 C.L.R. 549, at pp. 584–585.

146 (1985) 157 C.L.R. 424, at p. 498.

147 At p. 109 above.

148 Jaensch, at p. 607.

149 See, e.g. The Hon. Justice M.H. McHugh, “Neighbourhood, Proximity and Reliance”, in Finn, P.D. (ed.). Essays on Torts (1989) pp. 5–42Google Scholar, especially at pp. 27–33; Steele, , op. cit., n. 143Google Scholar above; Butler, , op. cit., n. 131Google Scholar above. See also Hill v. Van Erp (1997) 71 A.L.J.R. 487.

150 Alcock, [1992] 1 A.C. 310. at p. 411.

151 Caparo Industries pic v. Dickman [1990] 2 A.C. 605, at p. 633.

152 Murphy v. Brentwood District Council [1991] 1 A.C. 398, at p. 486.

153 Alcock, at pp. 401–102.

154 Ibid., at pp. 419–20.

155 Ibid., at p. 416. Cf. Lord Keith, at pp. 396–397.

156 Canadian National Railway v. Norsk Pacific Steamship Co. (1992) 91 D.L.R. (4th) 289, at pp. 368–369.

157 Cf. “Proximity, which has a central meaning of closeness, also has penumbral and metaphorical connotations which refer to connectedness … the connotations of proximity can link up with community understandings of moral responsibility … the power of proximity lies in the possibility of a more relational and relationship-based understanding of the duty of care …” Vines, P., “Proximity as Principle or Category: Nervous Shock in Australia and England”, (1993) 16 U.N.S.W.L.J. 458Google Scholar, at pp. 479–180.

158 Rhodes v. Canadian National Railway (1990) 75 D.L.R. (4th) 248.

159 Spence v. Percy (1991) Aust. Torts Rep. 81–116.

160 Beecham v. Hughes (1988) 52 D.L.R. (4th) 625.

161 See, Kidner, R., “Resiling from the Anns principle: the variable nature of proximity in negligence”, (1987) 7 Legal Studies 319.CrossRefGoogle Scholar

162 Coates (1995) 36 N.S.W.L.R. 1.

163 See, e.g. Brice v. Brown [1984] 1 All E.R. 997 and Jaensch v. Coffey (1984) 155 C.L.R. 549.

164 [1996] A.C. 155. Contrast Lord Keith, at pp. 169–170 and Lord Jauncey, at pp. 179–180, with Lord Ackner, at p. 170.

165 Above, at pp. 102–103.

166 Wigg v. British Railways Board (1986) 136 N.L.J. 446, per Tucker J.

167 See Lord Oliver's reference to Lord Bridge's speech in Caparo: Akock [1992] 1 A.C. 310, at p. 415.

168 Law Com. Consultation Paper No. 137, op. cit., n. 2 above, at paras. 5.21–5.27.

169 J.G. Fleming (1994) 2 Tort L.Rev. 202, at p. 204.

170 According to a member of the Hillsborough solicitors' steering committee, everyone who sought legal advice about a “nervous shock” claim following the disaster had a relative at the ground. Among the claimants were a fiancee and a “particular friend”, but no strangers to the primary victims, other than the police officers on duty: The Independent, 4 October, 1991.

171 Cf. Jones, , op. cit., n. 11 above, at p. 10.Google Scholar

172 Stapleton, , op. cit., n. 22 above, at p. 83.Google Scholar