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Negligently inflicted psychiatric harm: a re-appraisal

Published online by Cambridge University Press:  02 January 2018

John Murphy
John Murphy*
Affiliation:
University of Manchester
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Extract

The law of negligence has long been concerned not to countenance liability ‘in an indeterminate amount for an indeterminate time to an indeterminate class’. Nowhere, except perhaps in relation to pure economic loss, has this reluctance been more pronounced than in the context of negligently inflicted psychiatric harm. Without aiming to advocate a system of law that would create an increase in the workload of personal injury practitioners, this article attempts a thoroughgoing reappraisal of the bases of liability for psychiatric harm. More particularly, its primary aim is to accommodate liability for such harm within the current, tripartite framework governing the duty of care: that harm to the plaintiff be foreseeable, that there be a relationship of proximity between the plaintiff and the defendant and, that it be just and reasonable to impose a duty. Such an endeavour is both timely and necessary in view of the House of Lords’ recent insistence that in all cases-even those involving physical harm-all three limbs of the duty formula must explicitly be demonstrated.

Type
Research Article
Information
Legal Studies , Volume 15 , Issue 3 , November 1995 , pp. 415 - 433
Copyright
Copyright © Society of Legal Scholars 1995

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References

2. Per Lord Bridge in Caparo Industries plc v Dickman [1990] 1 All ER 568, 576 (quoting Cardozo CJ in Ultramares Corporation v Touche (1931) 174 NE 441, 444).

3. ‘Floodgates’ fears have hitherto been the primary justification for placing artificial restrictions on negligence liability for psychiatric harm: see H Teff ‘Liability for Negligently Inflicted Nervous Shock’ (1983) 99 LQR 100. Despite doubts as to how well-founded such fears are, they continue to prevail: see most recently Page v Smith [1995] 2 All ER 736, per Lord Lloyd at 767, and the extra-judicial comments of Sir Thomas Bingham MR in the foreword to N J Mullany and P R Handford Tort Liabiliv for Psychiatric Damage: The Law of ‘Nervous Shock’ (Sydney: Law Book Company, 1993) p vii.

4. Caparo, above, n 2 per Lord Bridge at 573j–574 a; per Lord Oliver at 585 e and per Lord Jauncey at 602f–h.

5. Marc Rich & Co A-G v Bishop Rock Marine Co Ltd, The Nicholas H [1995] 3 All ER 307 per Lord Steyn at 326g–327c (with whom Lords Keith, Jauncey and Browne-Wilkinson agreed).

6. For a full account of the artificial criteria imposed by the courts, see K J Nasir ‘Nervous Shock and Alcock: The Judicial Buck Stops Here’ (1992) 55 MLR 705. See also, below, n 42.

7. It is true, however, that these are all protean concepts which, consequently, may mean different things in different contexts. With respect to negligent omissions, for example, the notion of proximity has a quite unique sense: see J Murphy ‘An Accident Waiting to Happen?’ (1994) 2 Tort Law Review 77 and ‘Negligence Expectation Losses, Omissions and the Tortious Duty of Care’ (1996) 55 Cambridge Law Journal (forthcoming).

8. [1991] 4 All ER 907.

9. In Afcock, Lord Oliver insisted upon ‘the elements of immediacy, closeness of time and space and direct visual or aural perception’: Ibid, at 931 b.

10. [1994] 2 All ER 1.

11. Above, n 2 per Lord Bridge at 573j–574 a; per Lord Oliver at 585 e and per Lord Jauncey at 602 f-h.

12. This requirement was first introduced as a pre-condition of duty in Governors of rhe Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1984] 3 All ER 529 per Lord Keith at 534. It was cited with approval and followed by three of their Lordships in Caparo: by Lord Jauncey (at 602); by Lord Bridge who recast it as a requirement of being ‘fair, just and reasonable’ (at 574) and by Lord Oliver who merely transposed the word order to insist that it be ‘just and reasonable’ to impose a duty (at 585).

13. Above, n 10 at 14 (emphasis added).

14. That precisely this scenario arose, was the contention of several of the appellants in Alcock, the Hillsborough disaster case.

15. It is inappropriate to include in the definition of bystanders those intricately ‘involved’ in the catastrophe such as the crane operator in Dooley v Cammell Laird & Co [1951] 1 Lloyd's Rep 271 who suffered psychiatric harm fearing that he may have been instrumental in injuring a colleague. See also Galt v British Railways Board (1983) 133 NLJ 870.

16. Above, n 11.

17. [1943] AC 92.

18. Ibid at 117.

19. Ibid.

20. Above, n 8 per Lord Keith at 914 (on the basis of ‘a catastrophe occurring very close to him [which] were particularly horrific’); per Lord Ackner at 919 (on the basis that ‘a reasonably strong-nerved person would have been so shocked’) and per Lord Oliver at 930 (on the basis of ‘circumstances of such horror as would be likely to traumatise even the most phlegmatic spectator’). Only Lord Jauncey held a contrary view (at 935). Note also that the extension, in principle, of a duty of care to bystanders has been expressly recognised elsewhere. See eg Humbrook v Stokes [1925] 1 KB 141 per Atkin LJ at 158–9, and the Australian case of Mount Isa Mines v Pusey (1970) 125 CLR 383 per Windeyer and Walsh JJ at 404 and 412–3 respectively.

21. Quoted above, n 20.

22. One useful study, however, is J Bell ‘Conceptions of Public Policy’ in P Cane and J Stapleton (eds) Essays for Patrick Atiyah (Oxford: Clarendon, 1991). See also his interesting (but now rather dated) work, Policy Arguments in Judicial Decisions (Oxford: Clarendon, 1983) ch III.

23. On the difficulties of adjudicating purely by reference to established principles of law see N Simmonds ‘Bluntness and Bricolage’ in H Gross and R Harrison (eds) Jurisprudence: Cambridge Essays (Oxford: Oxford University Press, 1992).

24. But only for the purposes of this article. Note the reservations as to whether this can ever, in fact be achieved, lodged at n 31 below.

25. See, eg, R Dworkin Taking Rights Seriously (London: Duckworth, 1978) pp 22–28 and N Simmonds Central Issues in Jurisprudence: Justice, Law and Rights (London: Sweet and Maxwell, 1986) pp 105–109; and N Duxbury ‘Faith in Reason: The Process Tradition in American Jurisprudence’ (1993) 15 Cardozo L Rev 601, esp pp 610–632.

26. R Pound ‘Survey of the Conference Problems’ (1940) 14 v Cin L Rev 324, 340.

27. Above, n 12.

28. Above, n 5.

29. See R Dworkin, op cit, n 25 above, at pp 24–28.

30. For a full trawl of the case law see the Law Commission's Consultation Paper No 137 Liability for Psychiatric Illness (London: HMSO, 1995) at paras 4.1–4.13.

31. The principle/policy dichotomy, central to Dworkin's writing, has been subjected to considerable criticism the main thrusts of which are that the bright line between the two breaks down in ‘had cases’, and that, in any event, such a distinction cannot be drawn in the first place. See eg K Greenawalt Policy, Rights and Judicial Decision' (1977) 11 Ga L Rev 991 and S Fish Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Liferary and Legal Studies (Oxford: Clarendon Press, 1989) pp 369–370). Nonetheless, since the case law is replete with the use of the terms ‘principle’ and ‘policy’, it will be assumed (but not accepted) that a distinction between the two is tenable.

32. [1982] 2 All ER 298.

33. Ibid at 308.

34. Ibid at 320.

35. [1978] AC 728, 751–2.

36. [1990] 2 All ER 269.

37. Alcock, above, n 8 at 919. See also Lord Oliver's castigation of another use of policy: the confinement of claimants to specific relatives of the primary victim (at 930).

38. Yet note the prevailing requirement, in psychiatric harm cases, that there must be shock-induced psychiatric injury (as opposed to a more drawn-out aetiology). This appears to be a requirement, rooted in the policy concern of avoiding opening the so called ‘floodgates of litigation’, which continues to prevent the plaintiff from relying on a prima facie duty.

39. See, eg, n 31 above.

40. R Dworkin, op cit, n 25 above, at p 22 (emphasis added).

41. Ibid pp 22–23.

42. Ibid p 90. It is clear that there is a Hofeldian right, not to be caused psychiatric harm which is mirrored in the legal principle that it is morally wrong to inflict such injury on another (see, eg, Wilkinson v Downton [1897] 2 QB 57 and Khorasandjian v Bush [1993] QB 727). It therefore seems that-so far as is tenable (see n 31 above)–the repeated judicial insistence upon keeping closed the ‘floodgates’, not compensating ‘secondary victims’ and attempting to keep compensation for psychiatric harm commensurate with the degree of moral culpability, is policy-based.

43. Ibid pp 22–23. For further discussion of this two-sides-of-the-same-coin analysis see K Greenawalt, op cit, n 31 above. See also Fish's criticism that ‘whenever the distinction between principle and policy is invoked, the line it draws will be bright and visible only within the assumptions of some policy that is, for the moment, so deeply in force as to be beyond challenge’: S Fish ‘Still Wrong after all these Years’ in Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies, op cit, n 31 above, p 369.

44. See the Law Commission's Consultation Paper, op cit, n 30 above, at para 2.26 and see also n 89 below and associated text.

45. See eg the law relating to some forms of charitable act in Hanbury and Martin Modern Equiry (London: Sweet and Maxwell, 1993) pp 383–387. See also Gaskell, Debattista and Swatton Chorley and Giles' Shipping Law (London: Pitman, 1987) Ch 24 for the modern law of non-contractual salvage, which is conducted according to the Roman Law principle of negotiorum gestio.

46. Inflexible legal rules, which are not grounded in any justificatory principles, can equally, for example, be translated into individual rights.

41. See, eg his analysis of Spartan Steel and Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 in Taking Rights Seriously op cit, n 25 above. Contra, the view of Lord Denning who expressly stated his judgment to be predicated upon policy considerations (at 36).

48. For the dangers of decisions made in this fashion, see I Kennedy and J Stone ‘Making Public Policy Decisions on Medical-Moral Issues’ in P Byrne (ed) Ethics and Law in Health Care Research (Chichester: John Wiley & Sons, 1990).

49. Nor does it much assist the courts in that the parameters of post-traumatic stress disorder are by no means settled. See, inter alia The ICD 10 Classification of Mental and Behavioural Disorders (Geneva: World Health Organisation, 1992) and Diagnostic and Statistical Manual of Mental Disorders, DSM-IV (Washington DC: American Psychiatric Association, 1994). For academic commentary see M Napier ‘The Medical and Legal Response to Post-Traumatic Stress Disorder’ in A Grubb (ed) Choices and Decisions in Health Care (Chichester: John Wiley & Sons, 1993) and J Herman Trauma and Recovery (New York: Harper Collins, 1992).

50. See, eg, White v Jones [1995] 1 All ER 691; X v Bedfordshire County Council [1994] 4 All ER 602.

51. See the Law Commission's Consultation Paper, op cit, n 30 above, at paras 2.4–2.8. On the importance of reason in the judicial process, see N Duxbury, op cit, n 25 above.

52. One response is to conceive of the common law judge as a bricoleur who ‘takes whatever is to hand to patch up the immediate problem’: see N Simmonds, op cit, n 23 above p 24.

53. Above, n 3, at 761.

54. Above, n 2.

55. The tag ‘just and reasonable’ is an unfortunate one to describe a legal principle since, in Dworkinian terms, legal principles are themselves determinative of what is just and reasonable. What is really needed, therefore, is some elucidation of the factors which, in the context of psychiatric harm, define more specifically what is required.

56. See Page v Smith, above, n 3 per Lord Lloyd at 767. For analysis see H Teff, op cit, n 3 above, and K J Nasir, op cit, n 6 above.

57. Alcock, above, n 8 at 932.

58. Ibid.

59. Ibid (emphasis added).

60. In McLoughlin v O'Brian, above, n 32, Lord Bridge recognised this tension and warned that recourse to artificial constraints on the duty of care could ‘freeze the law in a rigid posture which would deny justice to some who, in the application of the classic principles of negligence derived from Donoghue v Srevenson, ought to succeed’: [1982] 2 All ER 298, 320 e (emphasis added).

61. Mchughlin v O'Brian, above, n 32 per Lord Wilberforce at 303.

62. Ibid at 310 (emphasis added).

63. Above, n 36.

64. Ibid at 931.

65. Ibid.

66. Ibid, at 943. Lord Ackner expressly concurred with this opinion at 931.

67. Above, n 8 at 932.

68. Above, n 3.

69. Ibid at 767 (emphasis added).

70. Ibid.

71. Sir Winston Churchill, on the likely action of Russia at the outbreak of World War II (BBC Broadcast, 1 October 1939).

72. Only the last of these fits the Caparo connotation of proximity and is the one, therefore, which this article advocates.

73. So deeply rooted is this confusion that Law Commission's Consultation Paper, op cit, n 30 above, failed even to identify it, and still worse, itself portrayed the fallacy (at paras 2.16–2.17) that the three uses of the word proximity just outlined are related parts of one unitary concept.

74. Above, n 2 at 585.

75. Above, n 10.

76. Ibid at 14.

77. Some might argue that the requirement of a tie of love and affection is treated as a discrete pre-condition of liability, but unless it is an express policy concern, why so?

78. Above, n 32 at 304.

79. [1991] 4 All ER 907, 919.

80. Ibid at 930 e–f.

81. Ibid at 914 relying on the seminal speech of Lord Atkin in Donoghue v Stevenson [1932] AC 562, 580.

82. Above, n 8 at 925 g. Appreciation of the centrality of the Atkinian notion of proximity has been recognised overseas. In Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 Taylor J A observed (at 298) that ‘someone who suffers psychological injury as a result of being informed of the death of a relative, or of ruminating on the circumstances of the relative's death, or of visiting the scene some days later cannot…. be said to have been closely and directly affected by the negligence’. See in similar vein Beecham v Hughes (1988) 52 DLR (4th) 625 (which turned upon the fact that the plaintiff's suffering was only indirectly attributable to the defendant's negligence).

83. Indeed, it brings it into line with the approach currently taken towards the duty of care in negligent misstatement cases. See eg Hedley Byrne & Co Lrd v Heller and Partners Ltd [1964] AC 465; Caparo, above, n 2; James McNaughton Paper Group Ltd v Hicks Anderson & Co [1991] 2 QB 113.

84. Dulieu v White & Sons [1901] 2 KB 669.

85. Alcock, above, n 8 per Lord Ackner at 917.

86. Eg Chadwick v British Transport Commission [1967] 2 All ER 945.

87. This is the doctrine which lay at the crux of Lord Wilberforce's dictum in McLoughlin v O'Brian, above, n 32.

88. [1994] 4 All ER 907, 934, quoting from the judgment of Cardozo J in Wagner v International Railway Co (1921) 232 NY 176 at 180 (emphasis added). The same phrase ‘danger invites rescue’ was used by Willmer LJ in Baker v TE Hopkins & Sons Ltd [1959] 1 WLR 966, 983. See also Chadwick, above, n 86 per Waller J at 952 and McFarlane, above, n 10, per Stuart-Smith LJ at 10.

89. For a fuller account of this aspect of the rescuer cases see N J Mullany and PR Handford, op cit, n 3, above, pp 110–111.

90. See n 45, above and associated text.

91. See G Williams ‘The Aims of the Law of Tort’ (1951) 4 CLP 137. But see now the Law Commission Consultation Paper No 132 Aggravated, Exemplary and Restiturionary Damages (London: HMSO, 1993) passim.

92. Above, n 10.

93. Ibid at 10.

94. [1939] 1 KB 59.

95. Ibid at 63. See also the judgment of Brennan J in the Australian case of Jaensch v Coffey (1984) 155 CLR 549, 570.

96. [1983] 1 WLR 1427.

97. Ibid at 1434.

98. See, eg, Wooldridge v Sumner [1962] 2 All ER 978 per Diplock W at 990; Baker v T E Hopkins & Sons Ltd, above, n 88 per Willmer LJ at 983 and Morris v Murray [1991] 2 QB 6 per Fox, Stocker and Waller LJJ at 17, 28 and 32 respectively.

99. AJE Jaffey ‘Volenti Non Fit Injuria’ [1985] CLJ 87 and R Kidner ‘The Variable Standard of Care, Contributory Negligence and Volenti’ (1991) 11 Legal Studies 1.

100. Wooldridge v Sumner, above, n 98 at 990. See also Nettleship v Weston [1971] 3 All ER 581, 587 per Lord Denning MR and ICI v Shatwell [1965] AC 656.

101. Above, n 88.

102. Ibid at 984. See also Butterfield v Forrester (1809) 11 East 60 (the plaintiff negligently rode into a pole, which, earlier the same day, had been carelessly left obstructing the road).

103. Pitts v Hunt [1991] 1 QB 24 per Beldam and Balcombe LJJ at 48 and 52 respectively.

104. Cf the Occupiers' Liability Act 1957,s 1(1), and the Occupiers' Liability Act 1984, s 1(1).

105. If he was causatively responsible it would be possible to allege that the plaintiff's act was a novus actus interveniens: see eg McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621.

106. [1975] 3 All ER 520.

107. Ibid at 527–8 per Lord Denning MR applying the principle enuciated in Duvies v Swan Motor Co (Swanse) Ltd [1949] 2 KB 291.

108. In Froom v Butcher, above n 106, Lord Denning MR suggested a reduction of 25% since the plaintiff was morally blameworthy (ie failed to wear a seatbelt) but not causally responsible for the accident (at 52–8). Presumably his Lordship construed the plaintiff's failure to wear a seatbelt (and hence mitigate or avoid injury) as moral blameworthiness rather than causation of the injury.

109. However, this is not to say that the initial quantification of damages should not accommodate the ‘egg-shell’ principle which clearly applies in psychiatric harm cases: Brice v Brown [1984] 1 All ER 997 (but see contra, McFarlane, above, n 10 at 14, curiously decided by the same judge).

110. Above, n 8 at 913: ‘i[n] the ordinary case of direct physical injury …. reasonable foreseeability of the risk is indeed the only test that need be applied to determine liability’.

111. Above, n 5.

112. A cargo was completely lost when an unseaworthy vessel sank.

113. See K Barker ‘Unreliable Assumptions in the Modern Law of Negligence’ (1993) 109 LQR 461 and J Stapleton ‘Duty of Care and Economic Loss: A Wider Agenda’ (1991) 107 LQR 249. See also the disparate views of the Law Lords as to what is meant by proxmity in White v Jones, above, n 50.

114. Of course, the converse can be argued: namely that if the rules are kept separate, the meaning given to proximity in each context can be more clearly tied to the relevant policy considerations. But the price here is, necessarily, fragmentation in the general principles governing negligence.

115. This does not, of course, negate the essentially protean nature of legal principles. However, the fact that principles are not absolute in their terms obviates the need for the judge, in appropriate cases, to remain shackled to arcane precedents. See further, N Simmonds, op cit, n 25, above.

116. Save where they are expressly stated to be particular factors relevant to the question of whether it be just and reasonable to establish a duty.

117. Murphy, above, n 36.

118. B N Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921)

119. L Fuller ‘The Forms and Limits of Adjudication’ (1978) 92 Harv L Rev 353 at 378.

120. This is ultimately, as argued above, a matter germane to foreseeability.

121. The Nicholas H, above, n 5.

122. Spartan Steel and Alloys Ltd v Martin & Co (Contractors) Ltd, above, n 47; Ross v Caunters [1980] Ch 297.

123. Caparo, above, n 2; Smith v Eric S Bush (a firm) [1990] 1 AC 831; James McNaughton Paper Group Ltd v Hicks Anderson & Co [1991] 2 QB 113.

124. White v Jones, above, n 50; Yuen Kun Yeu v A-G of Hong Kong [1988] AC 175; Smith v Littlewoods Organisation Ltd [1987] AC 241; Topp v London Country Bus (South West) Ltd [1993] 3 All ER 448.