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Published online by Cambridge University Press: 02 January 2018
In 1970, when commenting on the law's progress in dealing with negligently inflicted psychiatric damage that does not result from physical injury (hereinafter ‘psychiatric damage’), Windeyer J delivered a famous ‘backhanded’ compliment, by observing ‘[l]aw, marching with medicine but in the rear and limping a little’. At the risk of straining that metaphor by re-casting it into a medical perspective, the purpose of this article is to provide a diagnosis and prognosis as to the current state of that legal limp. It would conclude: ‘legal patient now seems docile and uncharacteristically compliant, makes right noises but limp no better. Query whether symptomatic of more serious problem requiring radical surgery?’
This rather negative assessment is acknowledged to be somewhat at odds with a more optimistic prognosis that could be derived from recent trends that seem generally to signify a growing ditente between law and medicine.
This article is a summary of a paper presented at the Department of Law, University of Keele on 16 January 1997. The writer gratefully acknowledges the constructive input from those that attended the paper and those at the University of Keele (particularly Carl Stychin and Michael Thompson) responsible for organising the workshop in which it was presented. The writer also gratefully acknowledges the assistance of his colleagues, Professor Michael Jones and Dr Judith Laing, with earlier drafts of this article.
1 In preference to the ‘nervous shock’ label, which is not used in medical clinical practice today: see Mendelson ‘Legal and Medical Aspects of Liability for Negligently Occasioned Nervous Shock: A Current Medical Perspective’ (1995) 39 J Psychosomatic Research 721.
2 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 395, emphasis added.
3 For a comprehensive survey of that material see Liability for Psychiatric Illness, Law Commission Consultation Paper No 137 (1995).
4 Victorian Railway Commissioners v Coultas (1888) 13 App Cas 222.
5 Ibid at 224.
6 See the comment of Lord Bridge in McLoughlin v O'Brian (1983) 1 AC 410 at 432, that’ [f]or too long earlier generations of judges have regarded psychiatry and psychiatrists with suspicion, if not hostility’.
7 Collins, Wilkie The Moonstone (London: Collins Press, 1868) p 203 Google Scholar.
8 [1901] 2 KB 669.
9 [1991] 2 All ER 293.
10 See Dolding and Fawlk (1992) 55 MLR 562.
11 [1991] 2 All ER 293 at 303.
12 For an earlier (less equivocal) statement to similar effect, see the dissenting judgment of Sargant LJ in Hambrook v Stokes [1925] 1 KB 141.
13 Though see Vernon v Bosley (No 2) [1997] 3 WLR 683, in which the Court of Appeal held that a plaintiff and his/her advisers had a duty to disclose to the court and the defendants apparently inconsistent medical expert reports prepared by the same expert but in different proceedings.
14 The source of the ‘primary’/‘secondary’ classification can be found in Lord Oliver's speech in Alcock v Chief Constable of the South Yorkshire Police (1992) 1 AC 310 at 410–411.
15 See Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310 at 410 per Lord Oliver.
16 For example, see (1992) 12 OJLS 440 at 442, in which Teff argues that medical science suggests that it is the closeness of the relationship between the secondary and primary victim that is most likely to produce the psychiatric harm and that physical presence at the scene is less indicative, contrary to the legal requirement that even a close relation must also be present at the scene. Relevant supportive medical literature includes the American Psychiatric Association American Diagnostic and Statistical Manual of Mental Disorders (4th edn, 1994) (DSM IV), para 309.81, p 424, and Green ‘Defining Trauma: Terminology and Generic Stressor Dimensions’ (1990) 20 J Applied Social Psychology 1632. Also see (1996) 4 Tort LR 44, in which Teff argues convincingly that there is little support in medical science for the courts insisting that the secondary victim's psychiatric damage must be caused by a sudden shocking event. Note also the obiter comments of Henry LJ to the same effect in Frost v Chief Constable of the South Yorkshire Police [1997] 1 All ER 540 at 556, discussed later in this article.
17 [1995] 2 All ER 736. For a selection of comment on that case see A Sprince (1995) 11 PN 124; Pickford (1996) 3 Web JCLI; Trindade [1996] 112 LQR 22.
18 By the trial judge, Otton J, delivering judgment on 22 December 1992.
19 ‘[I]n which he could not foresee that the occupant would suffer any physical injury at all’: Page v Smith (1995) 2 All ER 736 at 760 per Lord Lloyd. For criticism see Colbey (1996) 15(5) Lit 189, 193; Thomson (1996) 112 LQR 383 at 385.
20 ‘Myalgic encephalomyelitis’, alternatively known as ‘CFS’ (chronic fatigue syndrome), ‘PVFS’ (post viral fatigue syndrome) or even ‘yuppie flu’.
21 In particular, see Dulieu v White [1901] 2 KF3 669; Bourhill v Young (1943) AC 92. These are cases concerning ‘primary victims’, which, if anything, appeared to have confirmed the universality of the requirement of foreseeability of psychiatric harm expressed by Denning LJ in King v Phillips (1953) 1 QB 429 at 441, an assumption confirmed by Lord Wilberforce in McLoughlin v O'Brian [1983] 1 AC 410 at 417–418 and the Law Commission Liability for Psychiatric Illness Consultation Paper No 137 (1995) para 2.9.
22 By virtue of being a ‘participant’ in an accident, according to Lord Oliver's classification in Alcock v Chief Constable of the South Yorkshire Police (1992) 1 AC 310 at 410–411.
23 (1995) 2 All ER 736 at 758 et seq, per Lord Lloyd.
24 Ibid at 754 per Lord Browne-Wilkinson.
25 Ibid at 752 per Lord Browne-Wilkinson.
26 Ibid at 758.
27 Ibid at 759.
28 (1997) 1 All ER 540.
29 Culminating, most notably, in Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310.
30 Ibid at 410.
31 Frost v Chief Constable of the South Yorkshire Police [1997] 1 All ER 540 at 549 per Rose LJ: ‘Lord Lloyd's categorisation of primary and secondary victims in Page v Smith did not expressly or by implication have the rescue cases in mind: indeed, none of them were cited either in the speeches or in argument.’
32 Wilsons & Clyde Coal Co Ltd v English (1938) AC 51.
33 Walker v Northumberland County Council [1995] IRLR 35 (QBD).
34 Frost v Chief Constable of the South Yorkshire Police [1997] 1 All ER 540 at 565.
35 Ibid at 556.
36 Ibid at 549.
37 [1995] IRLR 35 (QBD). For comment see A Sprince (1995) Liverpool LR 189; Dolding and Mullender (1996) 59 MLR 296.
38 Wilsons & Clyde Coal Co Ltd v English [1938] AC 57.
39 [1995] IRLR 35 at 42. In this regard, Colman J drew heavily on dicta from the earlier case of Petch v Customs and Excise Commissioners [1992] ICR 789 at 795 per Dillon LJ.
40 The new rapprochement between law and medicine that can be identified in the primary victim/employee cases remains notably absent even in more recent secondary victim cases, where the arbitrary requirements of the proximity test continue to dominate. For example, in Sion v Hampstead Health Authority (1994) 5 Med LR 170, a secondary victim plaintiff was denied recovery on the basis that he did not suffer psychiatric damage by virtue of the ‘sudden assault on the senses’ required after Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310, even though such a requirement is inconsistent with medical understanding of causation (see Teff (1996) 4 Tort LR 44; Frost v Chief Constable of the South Yorkshire Police [1997] 1 All ER 540 at 556 per Henry LJ).
41 Their self-evident physical proximity acting as a natural limitation on the number of potential claimants, thereby presumably minimising conventional ‘floodgates’ concerns (see the Law Commission Liability for Psychiatric Illness Consultation Paper No 137 (1995) para 4.13).
42 A Sprince (1995) 11 PN 124.
43 Certainly when suing their employer and, following the tone of the judgment and the obiter remarks of Henry LJ (at 567), potentially when suing a third party.
44 Eg Chadwick v British Railways Board (1967) 1 WLR 912; Wigg v British Railways Board (1986) 136 NLJ 446.
45 See Lord Lloyd's reference to avoiding “unnecessary complications in” ordinary running down action(s)“’ (1995) 2 All ER 736 at 758.
46 See Pickford (1996) 3 Web JCLI, who comments that Page v Smith ‘brings law into line with medical understanding’.
47 Liability for Psychiatric Illness Consultation Paper No 137(1995). See, for example, para 3.1: ‘any rational restatement of the law on psychiatric illness must start from the medical understanding of such illness.’
48 See above n 40.
49 See above n 14.
50 Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310.
51 The ‘floodgates’ argument is surveyed by the Law Commission in Liability for Psychiatric Illness, Consultation Paper No 137 (1995) paras 4.2-4.6.
52 [1996] 3 All ER 272.
53 This section partially draws upon arguments made by the writer elsewhere at (1996) 12 PN 80.
54 [1956] 1 All ER 615. The test was later refined in Wilsher v Essex Area Health Authority (1988) 1 All ER 871.
55 Noted by Sir Thomas Bingham MR in Page v Smith (No 2) (1996) 3 All ER 272 at 274.
56 [1996] 3 All ER 272 at 276.
57 The writer gratefully acknowledges the research in this area by Caroline Henney, a final year undergraduate student at the Faculty of Law, University of Liverpool.
58 Note, however, that, inter aha, the plaintiff in Page v Smith complained of ME rather than F'TSD, that the Law Commission themselves have commented that ‘responses to trauma may be a variety of stress response syndromes, including, but not limited to PTSD’ (Liability for Psychiatric Illness Consultation Paper No 137 (1995) p 40) and that legal and medical academics have cautioned as to the law's apparent preoccupation with equating psychiatric harm solely with PTSD (see, for example, Napier and Wheat Recovering Damages for Psychiatric Injury (London: Blackstone Press, 1995) p 38 Google Scholar; Mayou ‘Accident Neurosis Revisited’ (1996) 168 BJ Psychiatry 399 at 402; Wessely ‘Liability for Psychiatric Illness’ (1995) 39 J Psychosomatic Research 659.
59 PTSD was granted ‘official’ recognition in 1980 when it was included in Diagnostic and Statistical Manual of Mental Orders (then ‘DSM III’ and now updated as ‘DSMIV’) compiled by the American Psychiatric Association. Some still doubt it to be a valid syndrome (see Raphael and Middleton ‘After the Horror’ (1988) 296 BMJ 1142 at 1143; also Wessely above n 58, in which the author suggests that PTSD was ‘invented’ in order to accommodate the needs of Vietnam veterans).
60 For a comprehensive analysis see Alloy et al Abnormal Psychology, Current Perspectives (7th edn) chs 2–4.
61 See eg Fonagy, ‘Psychoanalysis’ in Colman (ed) Applications of Psychology (Harlow: Longman, 1995)Google Scholar; Davison, and Neale, Abnormal Psychology (Chichester: Wiley, 6th edn, 1994)Google Scholar; Wessler, ‘Conceptualising Cognitions in the Cognitive-Behavioural Therapies’ in dryden, and Golden, (eds) Cognitive-Behavioural Approaches to Psychotherapy (London: Harper & Row, 1986)Google Scholar.
62 See Alloy et al above n 60 chs 2–4.
63 (1995) 39 J Psychosomatic Research 671 at 673.
64 (1995) IRLR 35, at 42, citing dicta from Petch v Customs and Excise Commissioners (1992) ICR 789 at 796 per Dillon LJ.
65 (1995) IRLR 35 at 41.
66 One of the reasons why Mr Walker was unable to recover for his first breakdown being that it was reasonable for his employers to take into account the fact that employees in his position had previously not succumbed to a breakdown.
67 Paris v Stepney Borough Council (1951) AC 367.
68 This problematical dichotomy is expressly recognised by the Health and Safety Executive: ‘occupational health is a more difficult issue for managers to tackle than safety, because the link between the causes and effects of ill health are not always immediately obvious’ (HSE Stress at Work: A Guide For Employers (1996).
69 Bolton v Stone (1961) 1 AC 850.
70 Paris v Stepney Borough Council (1951) AC 367.
71 Like Mr Walker before his first breakdown – where the magnitude of the harm was accepted to be great but the likelihood of it occurring was not: (1995) IRLR 35 at 42.
72 It is only likely to be a feature in occupational physical disease cases (such as industrial deafness) as opposed to occupational physical accident cases.