Claims for nervous shock by witnesses, or secondary victims as they now appear to be called, have had only slow and restricted acceptance in English law.

The claim was first recognised where the plaintiff had been put in fear of imminent physical harm (this context should probably be seen as one of primary victim, just as if the harm had materialised).

It was then extended to shock caused by fear that imminent harm was about to befall others; then to the witnessing of a shocking event (also to shock caused to a rescuer by actually participating in a horrific event).

It was then further extended by the decision of the House of Lords in McLoughlin v O'Brien [1983] 1 AC 410, to shock caused by coming upon the aftermath of a horrific event, eg coming to the hospital and finding your family lying injured after a traffic accident.Many of the different aspects of this sort of claim were clarified by the decision of the House of Lords in the Hillsborough stadium case (Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310).

It was made clear that the 'witnessing' cases needed to satisfy the tests of familial, temporal and spatial proximity.

A line was therefore drawn between close and not so close relatives (the familial test); between coming on the scene and coming several hours later to the mortuary (the temporal test); and between being at the scene and merely viewing it on television (the spatial test).A recent example of the spatial test not being satisfied is McFarlane v EE Caledonian Ltd [1994] PIQR 154 where the Court of Appeal said that the plaintiff, though in a vessel nearby, had not been sufficiently proximate to, or involved in, the Piper Alpha disaster to qualify.Recent cases have attempted to come to grips with the context of nervous shock caused to a relative by attending the terminal hours of a loved one dying as a result of medical negligence.

The question that immediately springs to mind is how the element of shock can be satisfied in such a case (assuming that there is no such shocking element as the relative finding the loved one dying or dead at home).In the Hillsborough case Lord Ackner said: '"Shock", in the context of this cause of action involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.

It has yet to include psychiatric illness caused by the accumulation over a period of time or more gradual assaults on the nervous system.'In Jaench v Coffey (1984) 155 CLR 549 the Australian judge Brennan J said: 'I understand "shock" in this context to mean the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognizable psychiatric illness.'Not infrequently in the past settlements have been achieved in respect of psychiatric injury caused to, for example, parents attending at the bedside of their dying child, but until recently there had been no reported cases in point.

Now there are four, one of which went to appeal.In Taylor v Somerset Health Authority [1993] 4 Med LR 34, Auld J rejected a claim by a widow who had come to the hospital after her husband had suffered a fatal heart attack at work (due to earlier medical mismanagement).

She had not believed that he had died, not even when she was so informed by a doctor.

She then saw him lying peacefully behind curtains in the basement of the hospital.

The judge said that this did not fulfil the test of temporal proximity (in other words, she was too late on the scene).

He also said there had to be an external traumatic event.

However, in the Sion case (see below) Peter Gibson LJ made it clear that an external horrific event was not a pre-requisite as the crucial element in this sort of claim was a sudden awareness, violently agitating the mind, of what was occurring or what had occurred.It could, however, be argued that in the Taylor case what was absent was the necessary element of horror or sudden shock.

One has to remember that one cannot claim merely for psychiatric injury caused by the death of a loved one.

The claim is a claim for shock.In Sion v Hampstead Health Authority [1994] 5 Med LR 170, the Court of Appeal, on 27 May 1994, struck out as doomed to fail a claim by a father who suffered psychiatric injury through attending for some two weeks at the bedside of his 23-year-old son who had been injured in a traffic accident and fatally deteriorated in hospital due, allegedly, to negligent medical treatment.The court took the view, relying solely on the pleadings, and having regard principally to the psychiatric report that was served with the particulars of claim, that there was no evidence of 'shock', no sudden appreciation by sight or sound of a horrifying event but, rather, a continuous process that ran from the father's first arrival at the hospital to a death two weeks later that was by then not unexpected and on then to his realisation, after the inquest, of the possibility of medical negligence.This seems odd.

In the first place, does it make any sort of sense that there would probably have been a good claim if the father had still been hoping for recovery when death occurred and had therefore been 'shocked' when there was a sudden fatal deterioration? Secondly, there do appear to have been discrete 'shocking' type events during the two-week period, such as a sudden (though not immediately fatal) deterioration, sudden respiratory difficulties, cardiac arrest and transfer to the ITU.A more imaginative judgment (in the best sense) was given in the Central London County Court by Judge White on 4 February 1994 in the case of Tredget and Tredget v Bexley Health Authority [1994] 5 Med LR 178.

Although this was before the Court of Appeal judgment, it was after Brooke J had struck out Mr Sion's claim at first instance and nothing that was said in the Court of Appeal invalidates Judge White's approach.In the first place, this case concerned claims for nervous shock sustained by both parents as a result of a traumatic and frightening delivery of their fatally injured child, following allegedly negligent failure to go for an earlier Caesarean section and, as a result of attending upon their son during his short life of some two days.

The case was thus rather different from the usual 'attending by the bedside' case.Judge White accepted, as did the Court of Appeal in the Sion case, the following requisites for a successful claim: the plaintiff must show he or she has suffered an actual psychiatric illness caused by shock (ie the sudden and direct appreciation by sight or sound of a horrifying event or events, rather than from stress, strain, grief or sorrow or from gradual or retrospective realisation of events); that there was propinquity in time or space for the causative event or its immediate afte rmath; that such injury was reasonably foreseeable; and that the relationship between plaintiff and defendant was sufficiently proximate.It is surprising that the health authority sought to argue that there had been no element of shock in the events that the parents had experienced, and quite amazing that they should have chosen to contest the mother's claim on that basis.

Fortunately, the judge sensibly declined to see the two-day period as lacking the element of shock.

He saw the traumatic birth (in which the husband had been involved, and which had been complicated by shoulder dystocia - an obstetric emergency) and the delivery of a clearly traumatised baby and the ensuing harrowing hours of a single event ('frightening and harrowing') and satisfying the requisite of a sudden shock to the nervous system.He said: 'Of course, it was not in the nature of an immediate catastrophe which lasts only a few seconds - panic in a stadium or a motor accident - but one just as traumatic, for those immediately involved as participants, as each of the parents was...In my judgment, if this is a new step in the development of the law, it is not only...within the principles that have been set out, but has its own in-built limits, being founded on the special relationship, with all that follows, of the parent with the child at the unique moment of birth.'The judgment in Sion was given in May 1994.

Some three months earlier the Court of Appeal had similarly demonstrated its desire to restrict the ambit of this sort of claim, on this occasion in a case involving attendance at the hospital in the aftermath of a fatal traffic accident (Taylorson v Shieldness Produce Ltd [1994] PIQR 329).

The parents of a 14-year-old boy had gone immediately one morning to the hospital to which he, their only child, had been admitted after being crushed under a reversing vehicle.

They did not see him at the hospital, but they followed the ambulance that transferred him to another hospital, the father glimpsing him in the ambulance, the mother seeing him briefly as he was being rushed into the intensive care unit on a trolley.

They did not see him then for a few hours while he was being treated.

The father saw him that evening, when he had black eyes, blood on his face and a tube attached to the top of his head to relieve pressure on the brain.

The mother saw him the next day in a similar state.

The boy remained unconscious for two days.

Then the life support machine was switched off.

The parents were with him throughout that time.The court said that the shocking events were not sufficiently proximate and the involvement of the parents did not come within the aftermath principle.

It seems that the first conclusion was based on the lack of close contact in the first few hours and the second on the refusal of the court to adopt the reasoning in Jaensch v Coffey and extend the aftermath period to include the two days waiting at the bedside of the dying child.Both these conclusions are suspect and appear to stem more from a desire on the part of the court to restrict the ambit of the nervous shock claim rather than on any convincing logical thought.

In the first place, it is difficult to see why the trauma of the arrival at the hospital and what went on in the next hour or so in this case did not constitute a sufficiently proximate shocking aftermath, regardless of how close the parents actually came to the child.

It is also hard to see why a protracted shocking period of time should not fulfil the criterion of a sudden assault on the nervous system.It is also t o be noted that the court found that causation was not proved, in that they took the view that the real cause of the psychiatric injury to the parents was the loss of their child and so the injury would have been sustained even if there had been no question of any participation in any aftermath.This is a difficult contention to defeat in such a case.

One possible way to meet the argument is to ensure that the psychiatric report not only identifies a discrete shocking event or events coming within the immediate aftermath (which should be taken probably to mean an hour or so from the accident) to which the claimant was reasonably proximate, but also states that the event or events materially contributed to the arising of the psychiatric injury.While the ambit of this type of claim remains hedged about with such unsatisfactory and illogical restrictions, it is advisable that the psychiatric report served with the pleading states not only that the plaintiff has suffered an actual psychiatric injury which was caused or materially contributed to by his or her presence at and around the last hours and the death of the loved one, but also that the injury was largely caused by a sudden assault on the nervous system constituted by events A,B,C (the events to be specified by the report and to be events coming within the immediate aftermath of the accident or injury).

In this way, the expert medical evidence will support the requisite of a 'shock' (caused either by witnessing a sudden horrific event or by the sudden arising of shock-inducing awareness in the mind of the plaintiff).