Liability for Psychiatric Illness: Advancing Cautiously

Date01 November 1998
AuthorHarvey Teff
Published date01 November 1998
Liability for Psychiatric Illness: Advancing Cautiously
Harvey Teff*
On being told of the collapse of the building where his son was a demolition
worker, Mr Tranmore immediately went to the site. He arrived some two hours
after the incident, which was caused by the negligence of the contractors. He had to
wait for another two hours, knowing that his son was trapped in the building and
that it was too dangerous to get him out. He was then informed that his son was
dead. Dismissing the claim that his subsequent psychiatric illness derived from his
presence at the ‘immediate aftermath,’ Brooke LJ observed:
He did not go to the accident site for two hours after the accident happened. By that time all
the immediate work of the police and the emergency services had finished. Even during the
brief period when he was inside the shattered building, his son was buried in rubble two
floors above him. He never saw any part of his son’s body until he visited the mortuary
about 24 hours later. I do not consider that any of these matters, taken in isolation, would
necessarily be decisive, but their combined effect is in my judgment overwhelming.1
No area of tort law contains rules so apt to produce unseemly distinctions as that of
negligently inflicted psychiatric illness. The litigation resulting from the
Hillsborough football disaster stands out as a graphic, if not entirely typical,
illustration – traumatised on-duty police succeeded; traumatised close relatives of
the dead and injured spectators did not.2Claims which are in all other respects
valid continue to fail because the plaintiff arrived on the scene a few hours too late,
or was not deemed closely enough related to the immediate victim, or did not
become ill as a result of ‘sudden shock’. Increasingly, it appears, the fate of
claimants hangs on whether they are properly described as ‘primary’ victims, who
only have to prove reasonable foreseeability of some personal injury, or
‘secondary’ victims who have to overcome a battery of policy-driven restrictions.
A mere handful of cases3has sufficed to demonstrate the shortcomings of this
latest addition to the morass which confronted the Law Commission when it began
to prepare its Report on Liability for Psychiatric Illness.4
Although psychiatric illness is often more debilitating than physical injury, the
message conveyed by the prevailing rules is that mental and emotional wellbeing are
of less account than physical integrity. As an affirmation of the need for the law to
take psychiatric harm more seriously, the Law Commission’s readiness to explore
the subject in depth is therefore important in itself. If we grant that wholesale reform
The Modern Law Review Limited 1998 (MLR 61:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 849
* Department of Law, University of Durham.
1Tranmore vT.E. Scudder Ltd, Lexis, 28 April 1998, CA.
2Frost vChief Constable of South Yorkshire Police [1997] 3 WLR 1194, CA and Alcock vChief
Constable of South Yorkshire Police [1992] 1 AC 310, respectively. Frost is under appeal to the
House of Lords, which, at the time of writing, is considering its judgment.
3 See, for example, Frost, n 2 above; Young vCharles Church (Southern) Ltd (1997) 39 BMLR 146,
CA; Hunter vBritish Coal Corporation [1998] 2 All ER 97, CA.
4 Law Com No 249 March 1998 (hereafter, ‘the Report.’)

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