The topic is best approached chronologically so that the development of the law can be traced logically over the years. It must be borne in mind that there is no problem about awarding damages for nervous shock if the claimant also suffers physical injuries in the same accident. Difficulties only arise if there is psychiatric injury without any form of bodily injury.
The first attempt to claim damages for nervous shock was in Victorian Rly Comrs v Coultas (1888). Little medical evidence was available in those days to assist the court in arriving at its decision, and the Privy Council refused the claim, expressing the fear that a flood of claims would follow if this succeeded. It was thought that ‘a wide field of imaginary claims’ would be opened.
The first successful nervous shock case was Dulieu v White (1901). The court was prepared to recognise and compensate the claim of a publican’s wife who suffered a severe fright when a horse-drawn van crashed through the window of the bar where she was working, cleaning glasses. She was pregnant at the time and the child was born prematurely soon after the accident. The recovery of damages was limited by the judge, Kennedy J, to the particular facts here which involved real and immediate fear of injury to the claimant herself. He formulated a limitation on the scope of liability for nervous shock which became known as the ‘Kennedy limitation’:
There is, I am inclined to think, one limitation. Shock, when it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself.
This limitation was used in later cases to restrict the scope of liability for nervous shock. However, the principle was not applied consistently in all
cases which followed, and eventually it fell into disuse after higher courts had extended the scope of liability.
4.2.1 Fear for relatives and friends
Soon, courts began to award damages to people who had feared for the safety of close relatives. In Hambrook v Stokes (1925), the court was prepared to award damages for nervous shock when a mother, who had been made to fear greatly for the safety of her children at the sight of a lorry careering out of control towards them, suffered nervous shock, had a miscarriage and died.
The court took the view that it would be unfair and indeed ‘absurd’ to deny a remedy when a mother feared for the safety of her children in circumstances where had she feared for her own safety the claim would have succeeded. She had witnessed the experience through her own unaided senses – a theme which was later developed by Lord Wilberforce in McLoughlin v O’Brian and refined in Alcock v Chief Constable of South Yorkshire (1991), as will be seen.
As the notion of nervous shock became more acceptable to lawyers, articles began to appear in legal literature which explained the medical aspects of the condition, and more actions were brought before the courts.
New limitations began to be suggested by judges, ostensibly based on the notions of foresight and proximity formulated by Lord Atkin in Donoghue v Stevenson, though in reality the true reasons for the decisions were issues of policy.
4.2.2 The impact theory
Whereas shock had initially been treated as a form of physical injury, probably because the early cases had involved miscarriages as the physical manifestation of shock, a new view began to emerge, which was that there had to be foreseeability of some impact occurring to the claimant. This was known as the ‘impact theory’, and it meant that damages would only be awarded if the claimant was within the foreseeable area of impact, or geographically close enough to the scene of the accident.
4.2.3 The ‘area of shock’ theory
Still more recently another theory emerged, which was that, even if a claimant is outside the foreseeable area of impact, damages may still be recoverable as long as the claimant was within the foreseeable area of shock. The remnants of this approach are still in existence today, but in some of the older cases it is difficult to discern which approach is favoured.
In Bourhill v Young (1943), the claimant, an Edinburgh fish wife, had just alighted from a tram when she heard the impact from a serious accident 50 yards away on the other side of the road and outside her line of vision. She
later walked over to the scene and suffered nervous shock as a result of what she saw. She gave birth to a still-born child very soon afterwards, but her claim for nervous shock failed. Three judges in the House of Lords held that she was outside the area of impact, and that as she was a total stranger to the motorcyclist involved in the accident she was outside the area of foresight of shock. Their Lordships accepted that the test was that of foresight of shock. It was also decided that as a pregnant woman she was not ‘normal’ in terms of what she could endure by way of shock, and she was not entitled to succeed in her claim.
In Brice v Brown (1984), the difficult subject of people of ‘normal fortitude’
was again considered, though in the context of remoteness of damage. A woman and her daughter were involved in a minor car accident, and the girl of nine suffered slight physical injuries. The mother, who was very neurotic, suffered serious nervous shock. The court decided that the mother’s claim should succeed. The test which was applied was that if a person of ordinary phlegm would have suffered nervous shock in these circumstances, the claimant should succeed, and could then recover compensation for the full extent of her illness. If not, she could recover nothing at all.
In Page v Smith (1996), further light was thrown on the notion of ‘normal fortitude’ (see 4.6.1 below).
In the strange case of Owens v Liverpool Corpn (1933), relatives in a funeral procession succeeded in their actions for nervous shock when they saw the hearse collide with a corporation vehicle and the coffin fell out on the impact.
The only emotions which the relatives could have experienced were those of enhanced grief and horror. The relative in the coffin was already dead, so there could have been no claim based on fear for the safety of that person.
The courts continued to extend the scope of liability for nervous shock. In Dooley v Cammel Laird & Co Ltd (1951), a crane driver recovered damages when he witnessed an accident involving a workmate.
In Kralj v McGrath (1986), a woman who suffered nervous shock when she saw the dreadful condition of her child who was the victim of a negligent delivery by a doctor succeeded in her action for nervous shock.
4.2.4 Rescuers
In Chadwick v British Railways Board, a passer-by who assisted the official rescue teams at the scene of a serious rail disaster had suffered nervous shock and eventually committed suicide. He did not know any of the victims personally, but he witnessed horrific sights. The case represents an extension of liability for nervous shock which applies only to rescuers who come upon an accident and assist in rescuing in the immediate aftermath. This is an example of the special consideration which the law affords to rescuers.
A professional rescuer, or indeed any rescuer who is present while an accident is still in the process of happening, will qualify in his or her own right as a primary victim of an accident, and will recover damages for nervous shock even though he or she suffers no physical injury during the rescue. In November 1992, a fireman who had been involved in the rescue of the victims of the fire at King’s Cross Underground Station, was awarded £147,683 damages for nervous shock. While the defendants admitted liability and a number of other actions by firemen for nervous shock were settled out of court, the dispute in this case was about the amount of the award. (The highest previous award to a fireman for PTSD had been £13,000.) The claimant in this particular action, a Mr Hale, had suffered nightmares about dead people or skeletons, severe depression which had almost led to the breakdown of his marriage, and had only been able to manage a desk job since returning to work. He was unlikely to be able to continue working. The judge concluded:
‘He will continue to suffer from a deep-rooted depression which is unlikely to abate, and affects his whole outlook on life’ (Hale v London Underground (1992)).
In Wigg v British Railways Board (1986), the defendants were liable when a guard had been negligent in starting a train before a passenger had boarded properly. The driver, who had stopped the train as soon as possible, went to the passenger’s assistance but he was already dead. The driver, with 20 years’
experience, suffered nervous shock even though this sort of accident was described as ‘an occupational hazard’ and the claimant had experienced two previous incidents in which people had died on the railway line in 1979 and 1980.
Despite the special consideration which the law has afforded to rescuers, there is now evidence of a more restrictive approach (see below, 4.6.1).