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Psychiatric injury in breach of a relationship

Published online by Cambridge University Press:  02 January 2018

Peter Handford
Peter Handford*
Affiliation:
University of Western Australia
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Abstract

The distinction between primary and secondary victims confirmed by Page v Smith has caused major problems in English psychiatric damage law. The House of Lords has suggested that the search for principle has been called off, and that the only sensible strategy is to say ‘thus far and no farther’. This paper suggests that one way forward is to recognise that it is not only persons who are physically proximate to an ‘accident’ who should be put in a special category: any case in which there is some sort of pre-existing relationship between claimant and defendant should be regarded as different from the standard secondary victim scenario. The relationship concept, first recognised in the USA and now adopted by the Court of Appeal, can be found in embryo form in the early cases.

Type
Research Article
Information
Legal Studies , Volume 27 , Issue 1 , March 2007 , pp. 26 - 50
Copyright
Copyright © Society of Legal Scholars 2007

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References

1. For criticism of the traditional terminology, see, eg, McLoughlin v O’Brian [1983] 1 AC 410 at 432 per Lord Bridge of Harwich; Attia v British Gas plc [1988] QB 304 at 317 per Bingham LJ; Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 503 per Kirby P. Recent Australian legislation that has attempted to set out the principles of liability in statutory form uses the term ‘mental harm’; see Civil Law (Wrongs) Act 2002 (ACT), ss 32–36; Civil Liability Act 2002 (NSW), ss 27–33; Civil Liability Act 1936 (SA), ss 33 and 53; Civil Liability Act 2002 (Tas), ss 29–35; Wrongs Act 1958 (Vic), ss 67–78; Civil Liability Act 2002 (WA), ss 5Q–5T.

2. Indeed, disorders that might now be classified as post-traumatic stress disorder were originally referred to as ‘railway spine’ and were thought to be peculiar to railway accidents: see Erichsen, JE On Railway and Other Injuries of the Nervous System (Philadelphia: Henry C Lea, 1867).Google Scholar Charles Dickens was one who suffered from this condition: after a railway accident in 1865, he felt ‘very nervous [and] faint’. For years afterwards, when travelling even short distances, he would sometimes ‘suddenly fall into a paroxysm of fear, tremble all over, clutch the arms of the railway carriage, large beads of perspiration standing on his face, and suffer agonies of terror… Sometimes the agony was so great, he had to get out at the nearest station and walk home’: letters quoted in

3. (1888) 13 App Cas 222.

4. 45 NE 354 (NY 1896).

5. (1890) 26 LR Ir 428.

6. [1901] 2 KB 669.

7. Admittedly, in the earlier Irish case of Byrne v Great Southern & Western Railway Co (unreported) February 1884 (Irish CA), cited by Palles CB in Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428 at 441, the Court of Appeal had granted damages to the superintendent of a telegraph office for the ‘great fright and shock’ he suffered when a train came through the wall of the telegraph office where he worked, and so there was not the same need to distinguish the passenger situation.

8. (1890) 26 LR Ir 428 at 443.

9. 50 NW 1034 (Minn 1892).

10. (1906) 8 WALR 125.

11. Ibid, at 127–128.

12. Ibid, at 129.

13. See Geiger v Grand Trunk Railway Co (1905) 10 OLR 511; Toronto Railway Co v Toms (1911) 44 SCR 268; Sealy v Commissioner for Railways [1915] QWN 1.

14. Dulieu v White & Sons [1901] 2 KB 669 at 675.

15. [1925] 1 KB 141.

16. [1992] 1 AC 310.

17. So stated by Denning LJ in King v Phillips [1953] 1 QB 429 at 441, and confirmed by Viscount Simonds in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd, The Wagon Mound (No 1) [1961] AC 388 at 426. This rule has been affirmed in countless psychiatric injury cases: see, eg, Alcock v Chief Constable of South Yorkshire Police [1991] 1 AC 310 at 396 per Lord Keith of Kinkel, at 400 per Lord Ackner, at 406 per Lord Oliver of Aylmerton.

18. See Alcock, ibid, at 397 per Lord Keith of Kinkel, at 403 per Lord Ackner, at 415–416 per Lord Oliver of Aylmerton.

19. See, eg, Boardman v Sanderson [1964] 1 WLR 1317; Marshall v Lionel Enterprises Inc (1971) 25 DLR (3d) 141; Benson v Lee [1972] VR 879.

20. See McLoughlin v O’Brian [1983] 1 AC 410 and the equivalent Australian case, Jaensch v Coffey (1984) 155 CLR 549.

21. See Alcock v Chief Constable of South Yorkshire Police [1991] 1 AC 310 at 400 per Lord Ackner, at 416 per Lord Oliver of Aylmerton, at 423 per Lord Jauncey of Tullichettle.

22. See ibid, at 396 per Lord Keith of Kinkel, at 401 per Lord Ackner, at 416-417 per Lord Oliver of Aylmerton. The sudden shock rule was based on the judgment of Brennan J in Jaensch v Coffey (1984) 155 CLP 549 but Brennan J’s limitation was not endorsed by the other judges.

23. See Bourhill v Young [1943] AC 92 at 110 per Lord Wright, at 117 per Lord Porter; Jaensch v Coffey (1984) 155 CLP 549 at 568 per Brennan J.

24. (2002) 211 CLR 317. See Handford, P When the telephone rings: restating negligence liability for psychiatric illness’ (2001) 23 Syd LR 597;Google Scholar The High Court endorsed its approach in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

25. Note also the similar holding in the leading South African decision, Barnard v Santam Bpk 1999 (1) SA 202 (SCA).

26. These issues are now listed as relevant factors in the legislation codifying liability for mental harm referred to above, n 1 – which may have the effect of placing greater emphasis on some of them.

27. [1992] 1 AC 310 at 407.

28. [1996] 1 AC 155.

29. Ibid, at 184.

30. Ibid, at 187.

31. Ibid, at 188–189.

32. See White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 480 per Lord Goff of Chieveley.

33. It was assumed that chronic fatigue syndrome was a psychiatric injury, but in fact there is considerable doubt about this. ‘Medical expert witnesses have described this illness as “an ill-defined condition with a range of symptoms including malaise, fatigue, headache and exhaustion”, “a disease of the whole person [which] cannot be defined as either physiological or organic”, and the aetiology of which is yet to be established’: Mendelson, D The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Physical Injury (Nervous Shock) (Aldershot: Ashgate Dartmouth, 1998) p 270.Google Scholar

34. Page v Smith [1994] 4 All ER 522.

35. See, eg, P Handford ‘A new chapter in the foresight saga’ (1996) 4 Tort L Rev 5, and other periodical literature cited in Mullany and Handford, above n 1, para 1.130. For a comprehensive discussion of the problems of the decision, see paras 5.520–5.650, 6.270–6.280, 11.140–11.170 and 18.170–18.270 of that work.

36. For cases raising the issue in an employment context, see, eg, Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259; Frost v Chief Constable of South Yorkshire Police [1998] QB 254; Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146; Hunter v British Coal Corporation [1999] QB 140; Campbell v North Lanarkshire Council [1999] ScotCS 142; Donachie v Chief Constable of the Greater Manchester Police [2004] EWCA Civ 405. Note also the debate in birth injury cases about whether the mother and the father are primary or secondary victims: see below, text to nn 61–66. For cases raising the issue in other areas of psychiatric injury law, see, eg, AB v Tameside & Glossop Health Authority [1997] 8 Med LR 91 at 99 per Brooke LJ; CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161; W v Essex County Council [2001] 2 AC 592 at 600–601 per Lord Slynn of Hadley; note also Shipard v Motor Accident Commission (1997) 70 SASR 240 at 247 per Doyle CJ.

37. See, eg, Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146, where each of the judges in the Court of Appeal took a different view; Chief Constable of West Yorkshire Police v Schofield (1998) 43 BMLR 28; Campbell v North Lanarkshire Council [1999] ScotCS 142.

38. See White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

39. See Greatorex v Greatorex [2000] 1 WLR 1970 at 1983 per Cazalet J; note however Salter v UB Frozen and Chilled Foods Ltd 2003 SLT 1011; Gregg v Ashbrae Ltd [2005] NIQB 37.

40. See Morgan v Tame (2000) 49 NSWLR 21 at 24–26 per Spigelman CJ, at 42 per Mason P; Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at 52 per Ipp J; AMP General Insurance Ltd v Roads & Traffic Authority of New South Wales (2001) Aust Torts Rep 81-619 at 67,233 per Heydon JA; note also the unfavourable reaction of the Irish Supreme Court in Fletcher v Commissioners of Public Works [2003] 1 IR 465, especially at 508 per Geoghegan J. However, Page v Smith may perhaps have some influence in Canada; see Falbo v Coutts [2000] BCSC 434, although here Warren J managed to hold that the accident victim was both a primary and a secondary victim.

41. [1999] 2 AC 455 at 468–481.

42. Lord Steyn (at 496–497) accepted the distinction between primary and secondary victims, but Lord Hoffmann (at 504), who as a member of the Court of Appeal had affirmed the orthodox principle, refused to commit himself. The third member of the majority, Lord Browne-Wilkinson (at 462), simply agreed with the reasons of Lords Steyn and Hoffmann, and so his view is not clear. Lord Griffiths, who dissented on one issue, shortly referred to Page v Smith as ‘a sensible development of the law’ (at 463).

43. Ibid, at 511.

44. Ibid, at 500.

45. The Commission recommended that courts should abandon attaching practical significance to whether the plaintiff could be characterised as a primary or a secondary victim: Law Commission Liability for Psychiatric Illness Law Com No 249 (TSO, 1998) para 5.54.

46. Scottish Law Commission Report on Damages for Psychiatric Injury Scot Law Com No 196 (2004) para 3.38.

47. [1996] 1 AC 155 at 184.

48. [2002] QB 1312.

49. [2002] 2 All ER 1.

50. See Mullany and Handford, above n 1, paras 12.150–12.690; P Handford ‘Psychiatric injury resulting from medical negligence’ (2002) 10 Tort L Rev 38. For older cases applying the orthodox approach derived from accident cases, see, eg, Taylor v Somerset Heath Authority (1993) 16 BMLR 63; Sion v Hampstead Health Authority [1994] 5 Med LR 170.

51. [1934] SASR 128.

52. Ibid, at 130.

53. Note also Briody v St Helens & Knowsley Health Authority (2000) 53 BMLR 108, where the 19-year-old plaintiff underwent an emergency Caesarean section and gave birth to a stillborn child, following which the doctors decided to perform a subtotal hysterectomy. She was told of the baby’s death, and the hysterectomy, by her husband the next day. She was awarded damages, inter alia, for post-traumatic stress disorder. An appeal to the Court of Appeal was dismissed: [2002] QB 856.

54. It is unlikely that relatives will be present to witness negligence during the course of an operation or certain other kinds of medical treatment, but note Ibrahim (A Minor) v Muhammad (unreported) 21 May 1984 (QBD) (negligence during a circumcision being carried out in the presence of family members). See also Krishna v Loustos [2000] NSWCA 272.

55. [1993] 3 SLR 317.

56. Ibid, at 329.

57. Ibid, at 333. For cases from other jurisdictions evidencing a similar recognition of the special nature of negligence claims in a medical context, see Woods v Lowns No 15676 and 15678 of 1992 (unreported) 9 February 1995 (NSWSC) (the reported version, (1995) 36 NSWLR 344, and the appeal, sub nom Lowns v Woods (1996) Aust Torts Rep 81-376, deal only with the child’s claim against the doctor who refused to treat him, and not the parents’ psychiatric injury claims); Flett v Maxwell [1996] BCJ No 1455; Clinton-Parker v Administrator, Transvaal 1996 (2) SA 37 (W) at 63–64 per Navsa J (a case where two babies were mixed up by a hospital).

58. [2002] Lloyd’s Rep Med 227.

59. Ibid, at 235.

60. [2003] Lloyd’s Rep Med 49. For a more conservative approach, see Ward v Leeds Teaching Hospital NHS Trust [2004] Lloyd’s Rep 530 (a first instance decision).

61. (2000) 57 BMLR 158.

62. [1999] Lloyd’s Rep Med 389.

63. Tredget v Bexley Health Authority [1994] 5 Med LR 178; see also Kralj v McGrath [1986] 1 All ER 54.

64. (2000) 57 BMLR 158 at 164. Australian courts have not as explicitly recognised the special position of the mother in childbirth cases, but see Strelec v Nelson No 12401 of 1990 (unreported) 13 December 1996 (NSWSC).

65. Tredget v Bexley Health Authority [1994] 5 Med LR 178; see also McLelland v Greater Glasgow Health Board 2001 SLT 446.

66. Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458.

67. See Mullany and Handford, above n 1, paras 12.50–12.140.

68. (2002) 211 CLR 317. In this case, the High Court heard conjoined appeals from the New South Wales Court of Appeal in Morgan v Tame (2000) 49 NSWLR 21 and the Western Australian Full Court in Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35. For an earlier reference to the importance of the employment relationship between the defendant and the accident victim, see Reeve v Brisbane City Council [1995] 2 Qd R 661 at 667 per Lee J.

69. (2002) 211 CLR 317 at 336 per Gleeson CJ, at 341 per Gaudron J, at 397 per Gummow and Kirby JJ, at 419 per Hayne J. Note also Callinan J’s rather odd concurring judgment, referring to the three ‘bilateral relationships’ in this case (at 427 and 436–437).

70. Ibid, at 364–366.

71. Ibid, at 367.

72. (2003) 214 CLR 269.

73. Ibid, at 276–277 per Gleeson CJ, at 305 per Hayne J.

74. Ibid, at 300–301.

75. Ibid, at 288.

76. See Mullany and Handford, above n 1, chs 21–22; P Handford ‘Psychiatric injury in the workplace’ (1999) 7 Tort L Rev 126.

77. [1999] 2 AC 455.

78. (1970) 125 CLR 383. For recent authority confirming the Australian position, see New South Wales v Seedsman (2000) 217 ALR 583 at 610–612 per Mason P; Patrick Stevedores (No 1) Pty Ltd v Vaughan [2002] NSWCA 275.

79. See Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 359 per Judge McMahon; for the possible resurgence of such claims in New Zealand, see E Coppins ‘Psychiatric injury in employment’ (1997) 8 Auckland ULR 387.

80. See Collins v First Quench Retailing Ltd 2003 SLT 1220 (damages for psychiatric injury sustained as result of armed robbery); Keen v Tayside Contracts 2003 SLT 500 (court refused to rule out possibility that employee could recover damages for mental injury caused by single episode of acute stress at work). Note also Waters v Commissioner of Police of the Metropolis [2000] 1 WLR 1607 at 1611 per Lord Slynn of Hadley.

81. Hatton v Sutherland [2002] 2 All ER 1.

82. Barber v Somerset County Council [2004] 1 WLR 1089 (an appeal in one of the four cases decided by the Court of Appeal in Hatton v Sutherland [2002] 2 All ER 1).

83. See, eg, Gillespie v Commonwealth (1991) 104 ACTR 1; Sinnott v FJ Trousers Pty Ltd [2000] VSC 124; New South Wales v Seedsman (2000) 217 ALR 583.

84. Koehler v Cerebos (Australia) Ltd (2005) 79 ALJR 845.

85. See Osman v United Kingdom [1999] 1 FLR 193; Barrett v Enfield London Borough Council [2001] 2 AC 550; Z v United Kingdom [2001] 2 FLR 612.

86. See Mullany and Handford, above n 1, ch 23.

87. Al-Kandari v JR Brown & Co [1988] QB 665; Dickinson v Jones, Alexander & Co [1993] 2 FLR 521; Hutt v Piggott, Wood & Baker No B20 of 1993 (unreported) 28 May 1993 (Tas SC).

88. See X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 663–664 per Sir Thomas Bingham MR in the Court of Appeal, at 771–772 per Lord Nolan in the House of Lords (although these were minority opinions, it is now accepted that they are correct: see D v East Berkshire Community NHS Trust [2005] 2 AC 373); Pickering v McArthur [2005] QCA 294.

89. Ackers v Wigan Health Authority [1991] 2 Med LR 232 (liability admitted); Wilson v Tasmania [1999] TASSC 145 (liability admitted). Note also G v North Tees Health Authority [1989] FCR 53, where a slide containing male sperm was re-used for examining a child’s vaginal discharge, resulting in a distressing investigation.

90. Biles v Barking Health Authority [1998] CLY 1103; Backwell v ‘AAA’ (1996) Aust Torts Rep 81-387; Gilbert v Castagna [2000] NSWSC 461 (application to extend limitation period).

91. Davis v Jacobs [1999] EWCA Civ 911.

92. Goorkani v Tayside Health Board [1991] 3 Med LR 33; Smith v Barking, Havering & Brentwood Area Health Authority [1994] 5 Med LR 285.

93. Allin v City & Hackney Health Authority [1996] 7 Med LR 167 (defendant did not dispute that a duty of care was owed); Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458. See Mullany and Handford, above n 1, ch 26.

94. See Furniss v Fitchett [1958] NZLR 396 (doctor liable for disclosing wife’s mental instability to husband’s legal advisers); AB v Tameside & Glossop Health Authority [1997] 8 Med LR 91 (counsel conceded the duty issue); Lew v Mount St Joseph Hospital Society (1997) 36 CCLT (2d) 35; see, however, Tame v New South Wales (2002) 211 CLR 317 at 395 per Gummow and Kirby JJ.

95. See APQ v Commonwealth Serum Laboratories [1999] 3 VR 618; CJD Group B Plaintiffs v Medical Research Council [2000] Woya’s Rep Med 161. Doubts have been expressed about ‘fear for the future liability’: see, eg, Fletcher v Commissioners of Public Works [2003] 1 IR 465; Rothwell v Chemical & Insulating Co Ltd [2006] EWCA Civ 27 (leave to appeal to House of Lords granted). It is submitted that these doubts are misconceived: see Mullany and Handford, above n 1, ch 27.

96. See, eg, Taylor v Trustees of the Christian Brothers (1994) Aust Torts Rep 81-288; Reidy v Trustees of the Christian Brothers (1994) 12 WAR 583. In these cases, claims against the Christian Brothers for physical and sexual abuse of children in their care failed due to a combination of the Australian cross-vesting legislation and the old-fashioned law of limitation of actions in Western Australia. It was clear that the plaintiffs were claiming for psychiatric injuries and there was nothing in the nature of the injuries or the relationship between the parties that ruled out a duty of care.

97. See Mallon v Monklands District Council 1986 SLT 347.

98. See D v East Berkshire Community NHS Trust [2005] 2 AC 373.

99. See W v Essex County Council [2001] 2 AC 592 (refusal to strike out statement of claim).

100. See Sullivan v Moody (2001) 207 CLR 562; D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, [2004] QB 558, affirmed by the House of Lords [2005] UKHL 23, [2005] 2 AC 373 (though note Lord Bingham of Cornhill’s dissenting opinion, especially at 393–394 and 400). For a similar case involving a teacher, see New South Wales v Paige (2002) 60 NSWLR 371.

101. See Phelps v London Borough of Hillingdon [2001] 2 AC 619; Bradford-Smart v West Sussex County Council (2000) The Times, December 5.

102. See Swinney v Chief Constable of Northumbria Police Force [1997] QB 464; Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421 at 1430 per Pill LJ (dissenting); De Reus v Gray (2003) 9 VR 432.

103. See R v Deputy Governor of Parkhurst Prison, ex p Hague [1992] 1 AC 58 at 166 per Lord Bridge of Harwich.

104. These include Barnes v Commonwealth (1937) 37 SR (NSW) 511 (negligent false statement that plaintiff’s husband had been detained in mental hospital); Clark v Scottish Power plc 1994 SCLR 202 (forced entry to house and disconnection of electricity supply). Note also the Australian ‘stolen generation’ cases, where actions against government agencies or officials in respect of the forced removal of Aboriginal children from their parents pursuant to the former policy of assimilation failed for procedural and evidentiary reasons: see Williams v Minister, Aboriginal Land Rights Act 1983 [2000] Aust Torts Rep 81-578 (and compare the views of Kirby P in the earlier hearing, (1994) 35 NSWLR 497 at 500, allowing an extension of time to sue); Cubillo v Commonwealth (2001) 112 FCR 455.

105. Attia v British Gas plc [1988] QB 304.

106. See Deakin, S, Johnston, A and Markesinis, B Tort Law (Oxford: Oxford University Press, 5th edn, 2003) pp 107–108.Google Scholar

107. [1999] 1 WLR 1421 at 1434–1435.

108. See Law Commission Liability for Psychiatric Illness: A Consultation Paper Consultation Paper No 137 (1995).

109. [2001] 2 AC 592.

110. Ibid, at 600–601.

111. [2002] QB 1312.

112. [1996] 1 AC 155.

113. [2002] QB 1312 at 1322.

114. [1983] 1 AC 410 at 432–433.

115. [2002] QB 1312 at 1331.

116. White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

117. [2002] QB 1312 at 1331.

118. Ibid, at 1329.

119. [2002] 2 All ER 1.

120. Petch v Customs and Excise Commissioners [1993] ICR 789; Walker v Northumberland County Council [1995] 1 All ER 737; Garrett v London Borough of Camden [2001] EWCA Civ 395.

121. [2002] 2 All ER 1 at 12.

122. See Koehler v Cerebos (Australia) Ltd (2005) 79 ALJR 845 at 850 per McHugh, Gummow, Hayne and Heydon JJ.

123. Pickering v McArthur [2005] QCA 294 at [10] per McMurdo P, referring to the Annetts’ claim in Tame v New South Wales (2002) 211 CLR 317.

124. See above, text to n 4.

125. [1901] 2 KB 669.

126. 441 P 2d 912 (Cal 1968).

127. On the meaning of ‘emotional distress’ in the USA, and whether it always indicates something less than the recognisable psychiatric illness required by Anglo-Australian law, see Mullany and Handford, above n 1, paras 3.60 and 4.120.

128. 771 P 2d 814 (Cal 1989).

129. See Mullany and Handford, above n 1, paras 1.250–1.280.

130. Ibid, paras 6.390–6.450. See Davies, JA Direct actions for emotional harm: is compromise possible?’ (1992) 67 Wash L Rev 1.Google Scholar Note also

131. The contrast between the US direct relationship doctrine and the problems of Page v Smith [1996] 1 AC 155 in England was referred to by Henry LJ in Frost v Chief Constable [1998] QB 254 at 278. Note also Lord Oliver of Aylmerton’s reference to situations ‘where the plaintiff has himself been directly involved in the accident’: Alcock v Chief Constable of South Yorkshire Police [1991] 1 AC 310 at 407.

132. The direct victim category has been held to include those who are participants in accidents, rather than mere witnesses: see Long v PKS Inc 16 Cal Rptr 2d 103 (1993).

133. 616 P 2d 813 (Cal 1980).

134. Ibid, at 816 per Mosk J.

135. For example, D Crump ‘Evaluating independent torts based upon “intentional” or “negligent” infliction of emotional distress: how can we keep the baby from dissolving in the bath water?’ (1992) 34 Ariz L Rev 439 at 463–465. For a judicial affirmation of this view, see the partly concurring judgment of Bird CJ in Ochoa v Superior Court (County of Santa Clara) 703 P 2d 1 (Cal 1985) at 20.

136. See Mosk J’s dissenting judgment in Thing v La Chusa 771 P 2d 814 (Cal 1989), and his separate concurring judgment in Burgess v Superior Court (Gupta) 831 P 2d 1197 (Cal 1992).

137. Ochoa v Superior Court (County of Santa Clara) 703 P 2d 1 (Cal 1985).

138. Andalon v Superior Court 208 Cal Rptr 899 (1984); Newton v Kaiser Foundation Hospitals 228 Cal Rptr 890 (1986).

139. 770 P 2d 278 (Cal 1989).

140. Ibid, at 282 per Arguelles J. With rare exceptions, a breach of duty must threaten physical injury, not simply damage to property or financial interests: Potter v Firestone Tire & Rubber Co 863 P 2d 795 (Cal 1993).

141. See Davies, above n 130, at 29–37.

142. 771 P 2d 814 (Cal 1989) at 822–824.

143. Schwarz v Regents of University of California 276 Cal Rptr 470 (1990); see also Martin by and through Martin v United States 779 Fed Supp 1242 (1991).

144. 831 P 2d 1197 (Cal 1992).

145. For recent cases affirming the direct victim principle in California, see, eg, Everett Associates Inc v Transcontinental Insurance Co 159 F Supp 2d 1196 (2001); Moon v Guardian Postacute Services Inc 116 Cal Rptr 2d 218 (2002); Ess v Eskaton Properties Inc 118 Cal Rptr 2d 240 (2002); Allison C v Advanced Education Services 28 Cal Rptr 3d 605 (2005).

146. See, eg, Clomon v Monroe City School Board 572 So 2d 571 (La 1990); Guillory v Arceneaux 580 So 2d 990 (La 1991); note also Garrett v City of New Berlin 362 NW 2d 137 (Wis 1985). For examples of missed opportunities to apply direct victim thinking, see Cauman v George Washington University 630 A 2d 1104 (DC 1993); Boyles v Kerr 855 SW 2d 593 (Tex 1993); Slaton v Vansickle 872 P 2d 929 (Okl 1994).

147. California, Florida, New Jersey, New York, Texas and Virginia apply the direct victim approach in birth malpractice cases: Goodzeit, CA Rethinking emotional distress law: prenatal malpractice and feminist theory’ (1994) 63 Fordham L Rev 175 Google Scholar at 191–193. For a similar approach, see Constantino ex rel Constantino v Avery Center for Obstetrics and Gynecology PC 32 F Supp 2d 506 (1998) (in Connecticut, the mother of a baby dropped on the floor of the delivery room at the moment of birth was a direct victim, and her husband who was present with her was allowed to recover under bystander principles). However, the articulation of the distinction between the direct victim and bystander approaches is not always convincing: see, eg, Carey v Lovitt 622 A 2d 1279 (NJ 1993).

148. See above, text to nn 61–66. The same would apply to wrongful birth actions: courts ‘reach results entirely consistent with the independent duty analysis when they permit recovery for emotional distress in wrongful birth cases’: Dobbs, DB The Law of Torts (St Paul: West Group, 2000) p 849.Google Scholar

149. Richard H v Larry D 243 Cal Rptr 807 (1988).

150. Rowe v Bennett 514 A 2d 802 (Me 1986).

151. But the partner of a patient who has sexual relations with her therapist has no right to sue: Smith v Pust 23 Cal Rptr 2d 364 (1993).

152. Christensen v Superior Court 820 P 2d 181 (Cal 1991).

153. In the formative years of emotional distress liability, cases on carriers, innkeepers, telegraph companies and the like played an important part as forerunners of a more general liability: see Dobbs, above n 148, pp 824–825 and 849.

154. Martin by and through Martin v United States 779 Fed Supp 1242 (1991). Likewise, participation in the pre-admission process at a hospital does not make a relative a direct victim if the hospital negligently allows the patient to disappear: Ahn v Kim 678 A 2d 1073 (NJ 1996).

155. Phyllis P v Superior Court 228 Cal Rptr 776 (1986).

156. Note Ess v Eskaton Properties Inc 118 Cal Rptr 240 (2002) (sister of nursing facility patient failed to state direct victim cause of action against operator of nursing facility for emotional distress suffered as result of injuries incurred by patient as result of being sexually assaulted by unknown intruder).

157. In Illinois and Michigan, it has been accepted that a plaintiff can be both direct victim and bystander in the same incident: see, eg, Jarka v Yellow Cab Co 637 NE 2d 1096 (Ill 1994); Maldonado v National Acme Co 73 F 3d 642 (1996) (applying Michigan law); Seitz v Vogler 682 NE 2d 766 (Ill 1997).

158. See above, text to n 125.

159. See Corgan v Muehling 574 NE 2d 602 (Ill 1991); Thomas v Phone Directories Co 996 F Supp 1364 (1998) (stating the law in Utah). EA Cunningham ‘Negligent infliction of emotional distress in air crash cases: a new flight path?’ (1992) 70 Wash ULQ 935 at 950–952.

160. Dobbs, above n 148, p 849.

161. (1906) 8 WALR 125: above, text to n 10.

162. See Mullany and Handford, above n 1, paras 28.320–28.370.