The House of Lords, for only the fourth time, but for the second time in five years, has considered the vexed question of recovery of damages in negligence for post traumatic stress disorder (better, although medically misleadingly, known to lawyers as 'nervous shock') (see [1995] The Times, 12 May).

The Lords, by a majority of three to two, decided that for primary victims of negligence, nervous shock should be treated in the same way as physical injury.In Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, their Lordships had adopted narrow limits to the scope of the duty in such circumstances.

They had, however, refused to lay down rigid rules for the future, although some of the more 'liberal' propositions from a previous encounter with the problem (McLoughlin v O'Brian [1983] 1 AC 410) seemed to have been given rather a cool reception.In the latest case, the plaintiff was the primary victim of a car crash for which the defendant was responsible.

The collision was described by Lord Keith as one of 'moderate severity'.

The plaintiff, however, had already been suffering from a condition known as myalgic encephalomyelitis (or chronic fatigue syndrome or post viral fatigue syndrome).

Thus their Lordships were called upon to consider, for the first time, the liability for psychiatric injury of a defendant where the plaintiff was a primary rather than a secondary victim.

In addition, they had to consider whether or not a defendant should be liable to a plaintiff who was, by reason of an existing medical condition, likely to be more susceptible to psychiatric injury than many other persons.The House of Lords found for the plaintiff (here appealing against the Court of Appeal's decision which had overturned the decision at first instance that the defendant was liable for the plaintiff's psychiatric injury) by a majority of three to two, a margin that is familiar to all students of tort considering the case of Donoghue v Stevenson [1932] AC 562.Lord Lloyd delivered the leading speech in favour of allowing the appeal.

He considered that the control mechanisms that were in place to contain liability in the case of secondary victims had no place where the plaintiff is directly and physically involved.

He considered that the well-known dictum of Denning LJ in Ki ng v Phillips [1953] 1 QB 429, that 'the test of liability for shock is the forseeability of injury by shock', ought not to be applied 'uncritically' so as to 'distort the law'.Lord Lloyd pointed out that all of the plaintiffs whose cases had reached the House of Lords previously were secondary victims.

That is, they had claimed for psychiatric injury allegedly caused by the direct effects of the actions of the defendants upon other persons.

His Lordship made five propositions that did not, in his view, mark any radical departure from the principles set out by Kennedy J, in Dulieu v White [1901] 2 KB 669, nor from those accepted by the Court of Appeal in Hambrook v Stokes [1925] 1 KB 141 and in King v Phillips.

However, he did observe that King v Phillips could 'no longer be supported on its facts'.LORD LLOYD'S PROPOSITIONSPersonal injury practitioners should note Lord Lloyd's five propositions:1.

It is necessary to distinguish between primary and secondary plaintiffs in cases involving psychiatric injury (nervous shock).2.

In the case of secondary victims, control mechanisms were used by the courts as a matter of policy.

A defendant would not be liable unless the psychiatric injury was 'forseeable in a person of normal fortitude'.

This was not, however, a relevant consideration in cases involving primary victims.3.

Where the plaintiff is a secondary victim, it might be legitimate to use hindsight in order to be able to apply the test of reasonable forseeability.

Hindsight, however, has no part to play where the plaintiff is a primary victim.4.

Subject to these principles, the test is the same in all cases - whether the defendant could reasonably foresee that his conduct would expose the plaintiff to the risk of personal injury, whether physical or psychiatric.

There is no justification, in his Lordship's view, for regarding physical and psychiatric injury as different kinds of damage.5.

If the defendant is found to be under a duty of care to the plaintiff, whether as a primary or secondary victim, he is not liable for nervous shock unless the shock resulted in some recognised psychiatric illness.

It is not relevant that the illness may have taken a rare form or that it was of unusual severity.

The defendant should take his victim as he finds him.Thus, for primary victims, nervous shock should be treated in the same way as physical injury.

However, there is still a distinction between nervous shock and physical injury in the case of secondary victims.Lords Ackner and Browne-Wilkinson also delivered speeches in favour of allowing the plaintiff's appeal.

Lord Keith, dissenting, based his argument on Wagon Mound (No.2) [1967] 1 AC 617.

He cited with approval Lord Reid, who stated that it was generally accepted that there should not only be factual causation but that the injury must also be 'of a class or character forseeable as a possible result of it'.

Lord Keith saw no justification for distinguishing between the two classes of nervous shock claimants - that is, between primary and secondary plaintiffs.Lord Keith considered that forseeability of psychiatric injury was to be judged in the light of what would be suffered by a 'person of normal fortitude'.

Thus the nature of the incident was to be taken into account.

This, opined his Lordship, was a collision of 'moderate severity'.

A reasonable man in the position of the defendant 'would not have foreseen that an accident of the nature that he actually brought about might inflict on a person of normal susceptibility such mental trauma as to result in illness '.

Lord Jauncey delivered an opinion in favour of dismissing the appeal.Thus, of the three judges who sat in both the instant case and that of Alcock, two were in favour of maintaining, in cases brought by primary victims, the 'control mechanisms' they had used previously in relation to secondary victims.It may be suggested that Lord Lloyd's assertion that the case involves no radical departure from the stance of Kennedy J, in 1901, sits uneasily alongside the reference he makes to advances in medical knowledge, using such evidence of a better understanding of psychiatric injury as further justification for not drawing a distinction between physical and psychiatric injury.

It may be noted that the approval of the House of Lords has been given to the proposition that, in the case of primary victims, claims in respect of psychiatric injury are to be treated in the same way as claims in respect of physical injury.

Further, the so-called 'thin skull' principle (see Smith v Leech Brain & Co Ltd [1962] 2 QB 405) applies to psychiatric injury as it does to physical injury, and so the defendant must take his victim as he finds him.It would seem therefore that the 'textbook' approach currently adopted, with added weight since the extremely clear preference of their Lordships for the so-called 'incremental' approach to the development of 'duty situations' expressed in Murphy v Brentwood District Council [1991] 1 AC 398, should now classify claims for nervous shock by primary victims alongside those for physical injuries.

Claims for nervous shock made by secondary victims, however, should continue to be treated separately.