Law students studying the nuances of psychiatric injury claims in tort law should read the Alcock v Chief Constable of the South Yorkshire Police [1992] 1 A.C. 310 case. It is an essential read as it outlines the criteria required for secondary victims to claim for psychiatric harm after a traumatic event. The case uses the Hillsborough disaster as a context, which significantly influenced the legal landscape of negligence and duty of care.

  • In the case of Alcock v Chief Constable of the South Yorkshire Police [1992] 1 A.C. 310, it was held that there are four criteria that must be established for someone to claim as a secondary victim of psychiatric harm. They must suffer psychiatric shock from a sufficiently shocking event, have a close tie of love and affection to a primary victim, they must appreciate the event with their own unaided senses, they must be proximate to the event or its immediate aftermath.

Facts of the Case

  • C were friends and relatives of individuals who died as a result of the Hillsborough disaster. This occurred due to D’s negligence in policing the event.
  • Several of them had been present at the stadium or had watched the events live on TV. Most had heard of the disaster and later saw TV recordings.
  • All members of C suffered psychiatric shock or illness. Collectively, they brought action against D for negligence as secondary victims of psychiatric harm.
  • At first instance, the judge held that the 9 people who had been inside or immediately outside the stadium, or who had watched the event live, could claim damages but excluded the other members of C.
  • D appealed that the 9 successful members of C were not sufficiently proximate to the event as established in McLoughlin v O’Brian [1983] 1 A.C. 410.

Issues

  • Could C claim for psychiatric harm arising from an event where they were not physically harmed, or in some cases physically absent?

Held by the House of Lords

  • Finding for D, that there was not enough evidence that members of C present at the stadium had close ties of love and affection to the connected victims. As such, they were not foreseeably at risk of injury.
  • The people who witnessed the event live on TV were not within sight or hearing of the event or its immediate aftermath. Since the broadcasting did not depict the suffering of recognisable individuals, the witnesses were not sufficiently proximate.

Judge Ackner

  • Since McLoughlin v O’Brian [1983, it is established law that:
    • A claim for psychiatric illness resulting from shock caused by negligence can be made without the claimant themselves being injured or in fear of personal injury.
    • In these cases, the shock must result from death or injury to their spouse or child, or through the fear of such, and the shock must arise through sight or hearing of the event, or its immediate aftermath.
  • Shock is not a variant of physical injury but a separate kind of damage. It involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It does not include psychiatric illness caused by the accumulation of more gradual assaults on the nervous system.
  • Because ‘shock’ in its nature is capable of affecting such a wide range of persons, Lord Wilberforce in McLoughlin v O’Brian [1983] 1 A.C. 410 imposed limitations upon the extent of admissible claims. There are three elements inherent in any successful claim, with ‘proximity’ serving as the fourth and most stringent limitation.
  • Of the two people at the ground, neither were sufficiently proximate to the aftermath. C identified his brother-in-law in the mortuary 8 hours after the accident. Those who saw the event broadcasted cannot be held to have seen the horrifying injuries suffered by their relatives due to broadcasting standards and are also discounted.
  • “Only one of the successful members of C was at the ground. His relatives who died were his two brothers. The quality of brotherly love is well known to differ widely-from Cain and Abel to David and Jonathan. I assume that C’s relationship with his brothers was not an abnormal one. His claim was not presented upon the basis that there was such a close and intimate relationship between them, as gave rise to that very special bond of affection which would make his shock-induced psychiatric illness reasonably foreseeable by D. Accordingly, the judge did not carry out the requisite close scrutiny of their relationship. Thus there was no evidence to establish the necessary proximity which would make his claim reasonably foreseeable and, subject to the other factors, to which I have referred, a valid one” [406A].

Significance of the Case in Legal Development

Alcock significantly impacted the development of tort law concerning claims for emotional distress. Relevant cases include:

  1. McLoughlin v O’Brian [1983] – Established the proximity requirement for claimants who suffer psychiatric harm.
  2. Page v Smith [1996] – Explored the foreseeability of psychiatric injury in negligence claims.
  3. White v Chief Constable of South Yorkshire Police [1999] – Further examined the limits of liability for psychiatric injury among rescuers and police officers present at traumatic events.

Exam Questions and Answers

Below, you will find answers to questions that are most commonly asked based on this case.

How has the definition of ‘proximity’ evolved in tort law since Alcock?

Since Alcock, the definition of ‘proximity’ has been more rigorously defined in cases like Taylor v A Novo (UK) Ltd [2013], where the courts held that claimants must be directly involved in the aftermath or immediate perception of an event to claim psychiatric harm. This development has refined the scope of who may be considered a ‘secondary victim’, focusing on immediate temporal and physical proximity to the traumatic event.

What are the current challenges in litigating claims for psychiatric harm based on witnessing events through media?

Litigating claims for psychiatric harm from media exposure remains complex. Following Walters v North Glamorgan NHS Trust [2002], where proximity was discussed, courts are cautious about setting precedents that might open floodgates for claims based on media consumption alone. The emphasis is on direct and immediate exposure to the trauma rather than mediated experiences.

How do modern courts balance the rights of victims against potential abuses of psychiatric harm claims?

Modern courts use stringent criteria established in cases like Alcock to balance genuine victim claims and prevent abuse of psychiatric harm claims. They scrutinize the relationship between the claimant and the victim, the claimant’s proximity to the event or its aftermath, and the means by which the event was perceived. This careful consideration ensures that only legitimate and proximate claims are awarded, avoiding the exploitation of the legal system for distant or tangential grievances.

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