David Locke calls for the creation of a category that deals with compensation claims for nervous shock

The Court of Appeal first considered the issue of compen-sating psychiatric injuries in the case of Dulieu v White & Sons [1901] 2 K.B.

669, deciding that such injuries were actionable only where they arose from the claimant's 'reasonably apprehended fear for his safety'.

Since that decision, as our understanding of psychiatric illnesses developed and jurisprudence evolved to keep pace, there has never been a statement of comparable clarity, setting out a fundamental principle for the recoverability of damages for what is now called 'nervous shock'.

Instead, the judiciary has been required to contort the existing compensatory framework to accommodate the 'new' victims of nervous shock.

The recent decision of Temporary Judge J Gordon Reid QC of the Outer House in the case of Salter v UB Frozen and Chilled Foods Ltd [2003] S.L.T.

1011 appears, at first glance, to have stretched that framework beyond breaking point.

In search of a principle

The leading House of Lords decision on nervous shock is Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C.

310, which followed the disaster at Hillsborough football ground in 1999.

In that case the Lords, mindful of issues of public policy, introduced a series of 'control mechanisms', through which potential claimants would have to navigate.

However, that judgment was never likely, nor intended to be, the last word on the matter.

Indeed, Lord Hoffman explained in another Hillsborough case, White and Others v Chief Constable of South Yorkshire [1999] 2 A.C.

455, that the control mechanisms 'contemplate that injury has been caused in consequence of death or injury suffered (or apprehended to be suffered) by someone else'.

Therefore, another test was required to apply to those victims not within the scope of Alcock.

This was provided by the decision in Page v Smith [1996] A.C.

155, where Lord Lloyd of Berwick introduced the now commonly used terminology of the 'primary' and 'secondary' victim.

In respect of the primary victim category, where claimants must have been well within the range of foreseeable physical injury, the Lords held that the forseeability of physical injury was enough by itself to found a claim for resulting psychiatric injuries.

A secondary victim, being a spectator or bystander, would have to satisfy the Alcock control mechanisms.

This approach was approved by a majority of the Lords in White and it appeared for a time that a cohesive rationale for analysing nervous shock claims had been set-down.

However, obiter remarks in Alcock and White were not forgotten.

Salter decision

In Alcock, several of the Lords, although noting that it was not relevant to the case before them, cited with apparent approval the case of Dooley v Cammell Laird & Co Ltd [1951] Lloyd's Rep 271.

The claimant there believed he had caused the death of one of his colleagues and successfully claimed damages for psychiatric injuries, the court finding that the only issue was whether the psychiatric injury was a foreseeable consequence of the defendant's negligence.

However, that judgment pre-dated the House of Lords decisions that produced the primary and secondary victim categories and introduced the control mechanisms.

Lord Hoffman discussed Dooley and several similar unreported cases in his judgment in White, explaining that they were decided on the law 'as it was at the time' and must either be given up as wrongly decided or explained on other grounds.

Lord Hoffman gave tacit approval for one possible 'ex post facto rationalisation' of the Dooley cases, that they were all concerned with circumstances where the claimant feared he had been the 'immediate instrument of death or injury to another'.

However, he declined to give explicit approval on the matter, noting that it was not relevant to the case before him.

The obiter comments in Alcock and then White suggested that the Lords might be prepared to install additional categories of 'ultra-primary' victims who are not subject to the requirement of having been within the range of foreseeable physical injury.

In the Salter case, the claimant could not satisfy either the primary victim definition or the secondary victim control mechanisms.

He was not within the range of foreseeable physical injury, but feared that he had been the cause of the death of one of his colleagues.

The judge, principally relying on the obiter approval of Dooley, ruled that damages were recoverable.

It has been suggested that this decision is incorrect, since it disregards both Alcock and Page, insofar as the claimant does not fall within the established criteria for either primary or secondary victims.

Indeed, there is no express authority from the higher courts for any expansion of the primary victim category.

However, the House of Lords decisions and particularly the obiter comments, left plenty of room to squeeze through the Salter judgment.

It is a decision without explicit authority but one that is justifiable, bearing in mind the detail of the judgments that went before.

Although only persuasive in the English courts, it is likely to be followed by similar judgments in this jurisdiction.

Lord Hoffman was particularly despondent when he gave his judgment in White stating that, 'it seems to me that in this area of the law, the search for principle was called off in Alcock.

No one can pretend that the existing law, which your Lordships have to accept, is founded upon principle'.

He was particularly concerned about the role public policy had played in shaping the law on the recoverability of damages for nervous shock.

However, some principles are established.

The requirement for primary victims to have been within the range of likely physical injury remain, as do the Alcock control mechanisms for secondary victims.

Furthermore, the decision in White determined that there is no special 'rescuers' category - such individuals must still satisfy either the primary or secondary victim criteria - and also that there is no special victim category arising as a result of the duty of care owed by an employer to his employees.

It is difficult to see any scope for those criteria to be varied.

Any developments will only come from the attempts of claimants to create new classes of victims, as in Salter.

Reform

There are some calls for an abandonment of the requirement for primary victims to be within the range of foreseeable personal injury and, indeed, of the Alcock control mechanisms.

Such suggestions are contested using a floodgates argument.

However, this does not seem to be valid in this debate since the primary and secondary victim criteria are merely convenient methods of assessing forseeability.

If they are removed, the issue of forseeability still stands to be considered on a case-by-case basis, but without any framework from which to hang a judgment.

Therefore, it is not clear what is gained by losing them.

The Lords have been unwilling to close the door on a 'third-way' to compensation for psychiatric injuries, lest they bar some worthy claim in the future.

However, the time has come for the codification of an exclusive regime for the assessment of claims for nervous shock.

The judiciary can contort no more.

David Locke is a trainee solicitor at Kent-based law firm Cripps Harries Hall