http://www.ncl.ac.uk/~nlawwww/articles4/jones4.html
[1995] 4 Web JCLI  12,949 words
Liability for Psychiatric Illness - More Principle, Less Subtlety?

Michael A. Jones
Professor of Law, University of Liverpool
<majones@liverpool.ac.uk>
Copyright  1995 Michael Jones. 
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary
This article considers the future direction of the law on liability for negligently inflicted psychiatric illness, in the light of the English Law Commission's Consultation Paper No. 137, Liability for Psychiatric Illness.  It argues that the present state of the law is unsatisfactory in view of the wholly artificial and arbitrary restrictions on recovery; that the policy factors relied upon to justify these restrictions do not stand up to analysis; and that the provisional views of the Law Commission on reform of the law, though widening the potential ambit of recovery, do not go far enough.  There is no longer any sensible basis for adopting liability rules which distinguish between plaintiffs who sustain physical injury and those who suffer psychiatric illness as a result of a defendant's carelessness.  The article is loosely based upon a submission made by the author in response to the Law Commission's Consultation Paper, but does not necessarily attempt to deal with all the matters that were raised for consultation. 

Contents
1. Introduction 
2. The history  
3. The present law 
(i) the nature of the relationship between the plaintiff and the primary victim
(ii) the proximity of the plaintiff to the accident or its immediate aftermath
(iii) the means by which the plaintiff perceived the events or received the information
(iv) the manner in which the psychiatric illness was caused
4. The fundamental questions  
5. Policy factors  
6. The options for reform 
7. Conclusion  
Bibliography

1. Introduction
"In the case of mental shock... there are elements of greater subtlety than in the case of an ordinary physical injury and these elements may give rise to debate as to the precise scope of legal liability" Bourhill v Young [1943] AC 92, 103 per Lord Macmillan.  
In many respects the history of liability for psychiatric illness has been characterised by ignorance, suspicion and fear (a view that could equally be applied to the history of mental illness itself).  There has been ignorance of the causes of psychiatric illness, judicial suspicion of the medical discipline devoted to treating psychiatric illness, and fear that opening up liability would produce a flood of claims (either fraudulent or genuine).  Deeply pragmatic the common law and its judges may be, but in the context of liability for psychiatric illness this, on occasion, seems to translate into the simple, indeed simplistic, notion that if it cannot be seen it cannot be shown to have caused any harm.  This in turn has produced what might be termed the "pull yourself together" school of legal analysis (sometimes aided, it must be said, by a similar attitude within the medical profession) which regards psychiatric damage as less important, less significant and indeed less worthy of compensation than physical injury, which after all can be objectively seen and measured.  Although we have moved on to some extent from these attitudes, they nonetheless lurk beneath the surface of the "policy factors" which are wheeled out to justify restricting recovery. 
The courts have refused to treat psychiatric damage on the same basis as physical damage, though with remarkable, but scarcely commented upon, inconsistency see no difficulty in compensating psychiatric damage produced as a direct consequence of physical injury to the plaintiff (even to the extent of compensating for the plaintiff's suicide in the course of a depressive illness produced by his physical injuries: Pigney v Pointer's Transport Services Ltd [1957] 1 WLR 1121; Cotic v Gray (1981) 124 DLR (3d) 641).  Indeed, the House of Lords has now reached the position that if some physical injury to the plaintiff was foreseeable in the circumstances, however trivial, but did not in fact occur, the plaintiff can recover for psychiatric illness without even asking the question whether the psychiatric illness was foreseeable: Page v Smith [1995] 2 All ER 736.  The presence or even the foreseeability of physical injury somehow legitimates the plaintiff's claim for psychiatric injury.  The primacy of physical injury in the realm of compensation is apparent even when the courts are engaged in permitting recovery for psychiatric illness.  Lord Macmillan's "elements of greater subtlety" apply only to psychiatric illness which is not produced by means of physical injury to the plaintiff.

2. The history
The initial response was to deny all claims for psychiatric injury which were not the product of direct physical injury to the plaintiff (Victorian Railway Commissioners v Coultas (1888) 13 App Cas 222), but in Dulieu v White & Sons [1901] 2 KB 669 the plaintiff was permitted to recover for psychiatric illness having been put in fear for her own physical safety when the defendant crashed through a wall.  In Hambrook v Stokes Bros [1925] 1 KB 141 the Court of Appeal extended liability to circumstances where a mother witnessed a runaway lorry run down a hill where she had just left her children outside school.  The shock of witnessing this event produced a psychiatric reaction for which the defendant was held liable.  There was no need for any direct impact or fear of immediate personal injury to the plaintiff provided that the reaction was induced by what she had witnessed with her own eyes rather than what she was subsequently told about the event.  It would be absurd, said the Court, not to compensate a mother who sustained psychiatric illness as a result of fearing for her children's safety, when on similar facts a mother could succeed in a claim, if, not thinking of her children, she was frightened only for her own safety.  
Having once opened the door to such claims the question then became how wide the ambit of liability should be drawn.  Scepticism about the nature of "psychiatric damage" and the risk of fraudulent claims led to strict limits as to who could recover and in what circumstances.  Hambrook v Stokes Bros made it clear that the illness must be the product of what the plaintiff had perceived with her own unaided senses, which effectively limited claims to plaintiffs who were in fairly close physical proximity to the accident, although it was not essential that they had seen the accident itself (Boardman v Sanderson [1964] 1 WLR 1317; Chadwick v British Railways Board [1967] 1 WLR 912; Benson v Lee [1972] VR 879).  The nature of the relationship between the accident victim and the person who suffered the psychiatric illness was also important.  A parent or spouse of a victim would more readily be accepted as a person likely to be affected, and accordingly within the range of a duty of care owed by the defendant.  A bystander who was a total stranger to the accident victim would be treated as an unforeseeable plaintiff (Bourhill v Young [1943] AC 92).  This rule was modified, however, in the case of a "rescuer" who, having rendered assistance at an accident, subsequently sustained psychiatric illness at the scene he has witnessed: Chadwick v British Railways Board [1967] 1 WLR 912; Wigg v British Railways Board (1986) 136 NLJ 446; Mount Isa Mines Ltd v Pusey (1970) CLR 383; Bechard v Haliburton (1991) 84 DLR (4th) 668.  In Frost v Chief Constable of South Yorkshire, The Times, July 3, 1995, QBD it was held that "professional rescuers", in this case police officers, could not recover for psychiatric damage attributable to witnessing distressing events since they were hardened to events which would cause an ordinary person distress.  Their involvement in the rescue had to be such that it was just and reasonable that they should recover damages in circumstances where mere bystanders could not.
In King v Phillips [1953] 1 QB 429, 441 Denning LJ said that the test of liability for psychiatric injury was foreseeability of injury by psychiatric injury, but nonetheless it was clear that "foreseeability" was being given a restricted meaning in order to limit the potential number of claimants, first by excluding those who did not witness the event and secondly by excluding bystanders not related in some way to the victim.  Moreover, when applying this test it had to be demonstrated that the plaintiff was a person of "reasonable fortitude" and was not unduly susceptible to some form of psychiatric reaction: Bourhill v Young [1943] AC 92, 110; McLoughlin v O'Brian [1983] 1 AC 410.  This excludes persons who are abnormally sensitive to psychiatric illness.  If, however, a person of ordinary fortitude would have sustained psychiatric damage in the circumstances, the plaintiff who was particularly sensitive can also recover (Jaensch v Coffey (1984) 54 ALR 417); and, moreover, he is entitled to damages for the full extent of his injuries, even if they are exacerbated by a predisposition to mental illness or disorder and thus are more severe than an ordinary individual would have experienced (Brice v Brown [1984] 1 All ER 997; Benson v Lee [1972] VR 879; Bechard v Haliburton (1991) 84 DLR (4th) 668).
3. The present law
The present English law on liability for psychiatric illness which is not the result of physical injury to the plaintiff is effectively summarised in two decisions of the House of Lords McLoughlin v O'Brian [1983] 1 AC 410 and Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310.
In McLoughlin the plaintiff's husband and her three children were involved in a road accident caused by the defendant's negligence.  The plaintiff was informed about the accident two hours after the event, and she was taken to the hospital where she was told about the death of one of her children and saw the injuries to her family in distressing circumstances.  The House of Lords was unanimous in holding that the plaintiff's claim for psychiatric illness should succeed, but there was a difference of opinion as to the appropriate test of liability.  Lords Wilberforce and Edmund-Davies considered that foreseeability of psychiatric injury was not the sole requirement.  There must be some additional limits based on: (i) the class of person who could sue - the closer the emotional tie the greater the claim for consideration; (ii) physical proximity to the accident, which must be close both in time and space, though this could include persons who did not witness the accident but came upon the "aftermath" of events - persons who would normally come to the scene, such as a parent or spouse, would be within the scope of the duty; (iii) the means by which the psychiatric illness was caused - it must come through the plaintiff's own sight or hearing of the event or its immediate aftermath; communication by a third party was not sufficient.
Lords Bridge and Scarman preferred a test based upon foreseeability alone, "untrammelled by spatial, physical or temporal limits," which would be largely arbitrary in their application.  The factors included in Lord Wilberforce's "aftermath test" would have a bearing on the degree to which psychiatric illness was foreseeable but they would not necessarily preclude a claim.  Lord Bridge could see no logic in denying an action to a mother who read a newspaper report of a fire at a hotel where her children were staying, and who subsequently learnt of their deaths, simply because "an important link in the chain of causation of her psychiatric illness was supplied by her imagination of the agonies of mind and body in which her family died, rather than direct perception of the event."  
In Alcock the central issue was the status of the decision in McLoughlin v O'Brian: did it establish a test of liability based on foreseeability of psychiatric illness alone, or were there additional policy factors that had to be taken into account in determining the ambit of liability?  Actions were brought against the police arising out of the Hillsborough stadium disaster in April 1989, when 95 people were killed and over 400 injured by crushing when too many people were allowed to crowd into a confined area of the football stadium.  The events were shown in a live television broadcast.  The actions were brought by 16 people, some of whom were at the stadium but not in the area where the disaster occurred, and some of whom identified bodies at the mortuary.  All the plaintiffs were relatives, or in one case a fiancée, of people who were in the disaster area, but none were either a spouse or parent of those who died or sustained physical injuries.  The police admitted liability for negligence in respect of those who were killed and injured in the disaster, but denied that they owed a duty of care to the plaintiffs.  The House of Lords, applying Lord Wilberforce's "aftermath test," dismissed the plaintiffs' actions.  
Lord Oliver divided cases of psychiatric illness into two broad categories.  First, cases in which the injured plaintiff was involved, either mediately or immediately, as a participant.  This included cases such as Dulieu v White & Sons, where the plaintiff was put in fear for her own safety; Schneider v Eisovitch [1960] 2 QB 430 where the plaintiff was told that her husband had been killed, but she herself was directly involved as a victim suffering physical injuries in the accident in which her husband was killed; and the "rescue cases" such as Chadwick v British Railways Board [1967] 1 WLR 912.  These were all cases where the plaintiff was, to a greater or lesser degree, personally involved in the incident out of which the claim arose, either through the direct threat of bodily injury to the plaintiff or in coming to the aid of others injured or threatened.  In the same category were cases such as Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd's Rep 271 and Wigg v British Railways Board, The Times, February 4, 1986, on the basis that the negligent act of the defendant had put the plaintiff in the position of being, or thinking that he was about to be or had been, the involuntary cause of another's death or injury, and the psychiatric illness stemmed from the shock to the plaintiff of the consciousness of this supposed fact.  The fact that the defendant's negligence had foreseeably put the plaintiff in the position of being an unwilling participant in the event was sufficient to establish a proximate relationship between them.  The principal question then was simply whether injury of that type to that plaintiff was reasonably foreseeable.  
In the second category of cases the plaintiff was simply a passive and unwilling witness of injury caused to others.  In this category, where the psychiatric injury was attributable simply to witnessing the misfortune of another person in an event by which the plaintiff was not personally threatened or in which he was not directly involved as an actor, there were four issues that had to be considered: 

(i) the nature of the relationship between the plaintiff and the primary victim; 
(ii) the proximity of the plaintiff to the accident or its immediate aftermath; 
(iii) the means by which the plaintiff perceived the events or received the information; 
(iv) the manner in which the psychiatric illness was caused.

It will be argued below that this distinction between "primary" victims, where the plaintiff need only demonstrate that he has suffered a genuine psychiatric illness in circumstances where a person of reasonable fortitude would foreseeably have suffered psychiatric illness, and "secondary" victims where the plaintiff must satisfy the further requirements does not stand up to analysis (see below, 5. Policy factors).  It is a rationalisation of the present state of the law and does not provide any justification for the different liability rules that are applied.  But before addressing this issue it is instructive to examine the problems created by the specific hurdles to recovery imposed upon "secondary" victims.
(i) The nature of the relationship between the plaintiff and the primary victim.  
In Alcock it was said that the class of persons to whom a duty could be owed was not limited by reference to a particular relationship, such as husband and wife or parent and child.  The crucial factor was the existence of a relationship between the primary victim and the plaintiff which involved close ties of love and affection, a tie that would have to be proved by the plaintiff.  There was a rebuttable presumption that such ties would exist between spouses and in the parent-child relationship, though they could be present in other family relationships or those of close friendship, and may be stronger in the case of engaged couples than in that of persons who have been married to each other for many years ([1992] 1 AC 310, 397, per Lord Keith).
Psychiatric injury to a bystander unconnected with the primary victim would not ordinarily be reasonably foreseeable, although Lords Keith, Ackner and Oliver contemplated the possibility that a bystander who suffered psychiatric illness after witnessing a particularly horrific catastrophe close to him might be entitled to claim damages from the person whose negligence caused the catastrophe, if a reasonably strong-nerved person would have been so affected.  Lord Ackner gave an example of a petrol tanker careering out of control into a school in session and bursting into flames, as one where a potential claim by a passer-by, so shocked at the scene as to suffer psychiatric illness, could not be ruled out.  It is not clear, however, how a bystander could be regarded as being foreseeably affected in these hypothetical circumstances when their Lordships concluded that relatives of the primary victims who were present in the stadium were not within the reasonable contemplation of the defendant in Alcock as they watched the catastrophic events at Hillsborough unfold.  Just how horrific must a catastrophe be and how are litigants to know when their particular events satisfy the test?  Is it the numbers killed or injured?  The age of the primary victims (children conferring the status of greater horror)?  The amount of blood or the number of limbs strewn around the scene?  Just posing these questions points to the impossibility of giving a reasoned answer to the degree of horror required.  Subsequently, the Court of Appeal has held that witnessing at close range the "horrific catastrophe" of the "Piper Alpha" oil rig disaster was not sufficiently horrific for a bystander to succeed; a fortiori where the plaintiff was not a person of ordinary fortitude: McFarlane v EE Caledonia Ltd [1994] 2 All ER 1.  One possible implication of this decision is that no event can ever by horrific enough for a mere bystander to recover for psychiatric illness.
While the closeness of the tie of love and affection is a matter that clearly goes to the likelihood of the plaintiff suffering psychiatric illness, and therefore would probably form part of the enquiry into causation, there is no good reason for making it a factor relevant to the existence of a duty of care.  First, following Alcock it is suggested that a rebuttable presumption of "closeness" should apply to certain relationships (spouses and parent/child) whereas in other cases the closeness of the tie should be proved by the plaintiff.  Is it really necessary in the interests of justice or even good policy, to conduct detailed enquiry into the personal emotional lives of plaintiffs, in effect questioning their love for the primary victim at a time when, if the allegations are accurate, they are extremely vulnerable emotionally?  Secondly, how can it be acceptable for relatives to be denied compensation on the basis of the strength, or rather lack of strength, of the emotional tie when in some circumstances even a bystander may be entitled to claim, and certainly if the bystander can bring himself within the category of "rescuer"?  Non-lawyers would be hard-pressed to understand why the claims in Alcock failed when claims by police officers who were actually on the terraces at Hillsborough dealing with the dead and injured were subsequently settled.
If non-lawyers would be puzzled by the denial of the relatives' claims in Alcock when the possibility of a claim by a bystander was left open, they would probably be amazed to be told that the relatives in Alcock could not succeed, but that witnessing one's house burn down could be compensatable.  In Attia v British Gas [1987] 3 All ER 455 the Court of Appeal held that where a plaintiff sustained psychiatric illness as a result of witnessing a fire which caused extensive damage to her home, the illness could not be regarded as unforeseeable as a matter of law, although there were no personal injuries to anyone else and the plaintiff had not been at risk of physical injury to herself.  Rather it was a question of fact on the medical evidence whether psychiatric damage was reasonably foreseeable.  Attia was cited in argument in Alcock but their Lordships did not refer to it in their speeches.  Clearly, the plaintiff did not satisfy the "relationship" requirement of Alcock.  The Court of Appeal in Attia treated the issue as a matter of remoteness of damage rather than duty of care, since the defendants undoubtedly owed the plaintiff a duty of care not to inflict physical damage to her house.  On the other hand, the existence of a duty of care with regard to one type of damage says nothing about whether a duty of care in respect of a different type of damage should exist.  Until the decision of the House of Lords in Page v Smith [1995] 2 All ER 736 psychiatric illness had always been treated as a distinct type of damage, distinct even from other forms of personal injury, for which the duty of care must be established independently.  Page v Smith was a case of a "primary" victim, which their Lordships said involved different considerations from "secondary" victims (which perhaps explains, but certainly does not justify a different approach).  Was the plaintiff in Attia a "primary" victim?  If so, on what basis - that it was her property which was destroyed, as opposed to her child/spouse/relative (in whom no property rights can exist)?  If so this elevates property rights to a higher level of protection than personal relationships, and simply emphasises the point that the dichotomy between "primary" and "secondary" victims is flawed.  It may be convenient as legal category but it cannot explain let alone justify a distinction between watching property damage and observing, by whatever means, the circumstances in which a relative is seriously injured or killed and then subsequently identifying the body.  If the plaintiff in Attia was a "secondary" victim what was the nature of the relationship of love and affection between the plaintiff and her house?  It is incongruous that someone should be entitled to recover for witnessing the destruction of their property when others are excluded from compensation following death or injury to a person because they do not satisfy one or more of the criteria for recovery by a "secondary" victim.  
(2) The proximity of the plaintiff to the accident or its immediate aftermath.  
Historically, the courts required the plaintiff to witness events personally, which meant that the plaintiff had to be physically present at the scene of the accident.  Just as the requirement for a close tie of love and affection excluded mere bystanders from recovery for psychiatric illness, the requirement that the plaintiff be present at the scene excluded those who satisfied the tie of love and affection but did not witness the events.  
In McLoughlin v O'Brian [1983] 1 AC 410 the requirement that the plaintiff must be close to the accident in both time and space was extended to the "immediate aftermath," which was held to include seeing the victims at the hospital two hours later before they had been properly attended to by medical staff.  Similarly, in Jaensch v Coffey (1984) 54 ALR 417, 462-463 Deane J said that the "aftermath" extended to the hospital to which the injured person was taken, and persisted for so long as he remained in the state produced by the accident up to and including immediate post-accident treatment.  On the other hand, in Alcock their Lordships refused to extend the meaning of "immediate aftermath" to include the identification of a victim's body at a mortuary some eight or nine hours after death.  This failed the test on the ground that even if the identification could be described as part of the "aftermath," it could not be described as part of the "immediate aftermath."  Lord Ackner said that McLoughlin v O'Brian was a case "upon the margin" of what was acceptable as the aftermath.  Lord Jauncey said that to attempt a comprehensive definition of the "immediate aftermath" would be a fruitless exercise.  His Lordship emphasised that in McLoughlin v O'Brian the victims were waiting to be attended to, and were in very much the same condition as they would have been had the plaintiff found them at the scene of the accident.  Moreover, the visits to the mortuary were not made for the purpose of rescuing or giving comfort to the victim but purely for the purpose of identification (see also Taylor v Somerset Health Authority [1993] 4 Med LR 34).
The emphasis on the fact that the victims had not been cleaned up or attended to by medical staff when the plaintiff saw them makes too much hang on an entirely arbitrary circumstance.  Liability for psychiatric illness should not depend upon a race between the plaintiff and the ambulance (see Jaensch v Coffey (1984) 54 ALR 417, 439 per Brennan J).  Moreover, the distinction between the "aftermath" and the "immediate aftermath" is clearly artificial.  Lord Jauncey's refusal even to attempt to define it speaks volumes.  It is neither a clear nor a rational basis upon which to decide who should receive compensation and who should not.  Professor Teff has accurately commented that: "Invidious distinctions are inevitable when the 'immediate aftermath' is treated in isolation, as a crude notion of temporal proximity" (see Teff 1992, p446).
(3) The means by which the plaintiff perceived the events or received the information.  
Alcock confirmed that a plaintiff must either see or hear the event or its immediate aftermath.  Psychiatric illness induced by communication of events by a third party was insufficient.  The scenes broadcast on television were the equivalent of communication by a third party because they did not depict the suffering of recognisable individuals, and therefore the viewing of these scenes could not be equated with the plaintiff being within sight or hearing of the event or its immediate aftermath.  Though the television pictures certainly gave rise to feelings of the deepest anxiety and distress, this was equivalent to being told about the events by a third party, although both Lord Ackner and Lord Oliver agreed that simultaneous broadcasts of a disaster could not always be ruled out as providing the equivalent of the actual sight or hearing of the event or its immediate aftermath.  
The correctness of the decisions in both Hevican v Ruane [1991] 3 All ER 65 (where Mantell J held that a plaintiff who had identified his son's body at the mortuary was entitled to succeed for psychological trauma following the death, although he was not present at the scene of the accident or the aftermath) and Ravenscroft v Rederiaktiebolaget Transatlantic ([1991] 3 All ER 73, where Ward J held that a mother who had been called to the hospital and on arrival was informed by her husband that her son was dead, was entitled to succeed for a reactive depression, not having even seen her son's body) was doubted in Alcock, since in both cases the effective cause of the psychiatric illness was regarded as the fact of a son's death and the news of it, rather than a reaction to a traumatic event.  
This creates a distinction between plaintiffs that cannot be logically sustained.  If, as a question of fact, a mother has suffered psychiatric illness as a result of hearing about the death of her child there is no principled basis for refusing her compensation when a mother who witnessed the event could recover.  The latter plaintiff is not "morally superior" and does not present a greater claim for the law's protection than the former plaintiff.  The distinction reflects the historical development of the law and serves as an arbitrary means of cutting down the numbers of potential plaintiffs for policy reasons. 
(4) The manner in which the psychiatric illness was caused.  
The now quaint lawyer's term "nervous shock" has had two lasting implications for the development of the law.  First, the word "nervous" tended to imply that this was a form of injury that only those of "nervous disposition" or the unduly sensitive were likely to suffer, which has encouraged the persistence of sceptical attitudes to such plaintiffs.  Secondly, the word "shock" has lent itself to the idiosyncratic view that the plaintiff's psychiatric illness must be caused by a single event, which in colloquial terms can be regarded as "shocking."  Although the Law Commission Consultation Paper points out in its review of the medical literature that a traumatic, "shocking" event is a more likely trigger for the occurrence psychiatric illness, this in itself does not justify excluding psychiatric illness caused by less "shocking" events.  I may be more likely to be run over by a negligent motorist on the busy roads of a major city than in quiet country lanes, but this does not provide a basis for excluding my action against a negligent defendant when I happen to be injured while walking in the countryside.
In Alcock their Lordships held that in order to be actionable the plaintiff's psychiatric illness must be the product of "shock", in the sense of a sudden assault on the nervous system.  Lord Ackner said that "shock" meant the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind, and did not include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.  This excludes psychiatric illness from the experience of having to cope with the deprivation consequent upon the death of a loved one; the spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result; the parent made distraught by the wayward conduct of a brain-damaged child and who suffers psychiatric illness as a result.  Clinical depression attributable to the plaintiff having to live with the fact that a loved one is permanently disabled as a result of the defendant's negligence is not actionable (see eg Dube (Litigation Guardian of) v Penlon Ltd (1994) 21 CCLT (2d) 268 (Ont Court of Justice); cf Beecham v Hughes (1988) 52 DLR (4th) 625, where the British Columbia Court of Appeal contemplated such a claim, but the action failed on causation).  
The requirement of a specific "shocking" event results in the drawing of fine distinctions which are simply not defensible.  In Sion v Hampstead Health Authority [1994] 5 Med LR 170 the plaintiff was unable to recover for psychiatric illness allegedly caused by sitting at his 23-year old son's bedside for 14 days, as his son gradually deteriorated and eventually died.  There was no "sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind."  There was a process, said the Court of Appeal, which continued for some time, from first arrival in the hospital to the appreciation, after the inquest, that there may have been medical negligence.  The son's death, when it occurred, was not surprising but expected.  On the other hand, in Tredget v Bexley Health Authority [1994] 5 Med LR 178 the parents of a child born with serious injuries, from which it died two days later, were held entitled to recover in respect of their psychiatric illness.  The defendants disputed that the parents' psychiatric illness was the result of "shock," as opposed to stress, strain, grief, or sorrow from either a gradual or a retrospective realisation of events.  The judge concluded that it was unrealistic to isolate the delivery as an event from the other sequence of happenings.  Although lasting for over 48 hours from the onset of labour to the death, "this effectively was one event."  The birth, with its "chaos" or "pandemonium", the sense that something was wrong, and the arrival of the child in a distressed condition requiring immediate resuscitation, was frightening and horrifying for the parents.  The parents were participants in the events rather than passive witnesses.  
It is not clear why the courts have clung to the requirement of a single "shocking" event, except as a policy mechanism for limiting the number of claims.  It is certainly difficult to defend as a matter of principle.  Why, for example, should Mr. Sion be excluded from the ambit of compensation when Mrs. McLoughlin is held to fall on the "correct" side of the line?  
4. The fundamental questions
In any review of the law on liability for psychiatric illness there are two fundamental questions that should be addressed.  First, why treat the victims of psychiatric illness differently from those who suffer physical injury?  There may well be good reasons for regarding these forms of injury differently for the purpose of compensation, but they must be clearly articulated and must stand up to public scrutiny.  A major criticism of the present state of the law is that in an attempt to place limits on recovery for negligently inflicted psychiatric illness the courts have established criteria which are arbitrary in their application and, in some respects, do not correspond with medical understanding of how such damage can occur.  Indeed, some of the present rules are so arbitrary as to be utterly indefensible, even on grounds of policy, and are such as to bring the law into disrepute with the general public.  
The second, and equally significant, question is whether psychiatric illness is a form of harm worth protecting through the tort system.  In other words, do we want to compensate plaintiffs who suffer this type of loss, and if so why?  The answer seems almost self-evident, namely, yes.  The tort system already recognises the importance of compensating for psychiatric illness since the courts do permit recovery: (a) where the plaintiff has sustained some physical injury, no matter how trivial, and (b) where the plaintiff has not sustained physical injury but satisfies the criteria re-stated by the House of Lords in Alcock.  Moreover, psychiatric illness can be very serious for the person suffering from it; indeed, it can be just as debilitating, in some instances more so, than physical injury.  Understanding and awareness of the problems caused by psychiatric illness, although by no means perfect, has moved a long way since "shell-shocked" soldiers could be executed as deserters in the First World War, or described in pseudo-medical terms as "lacking moral fibre."  The significance of psychiatric injury and the appropriateness of claims for psychiatric illness were recognised over fifty years ago in Bourhill v Young [1943] AC 92 when Lord Macmillan acknowledged that "a mental shock may have consequences more serious than those resulting from physical impact."
Given that psychiatric illness is a serious form of damage which is compensatable through the tort system in some circumstances, the question is why should the law distinguish between different plaintiffs who have suffered this form of damage as a result of the defendant's negligence.  The burden of proof that it is just, fair or reasonable to exclude certain plaintiffs from the ambit of recovery should rest very firmly with those who would deny them compensation.  The grounds for distinguishing between plaintiffs must rest in policy rather than principle, but before addressing the policy factors that have been invoked bear in mind that in all cases it is assumed that both negligence by the defendant and causation of the damage (in the sense that as a question of fact the psychiatric illness suffered by the plaintiff can be causally attributed to the defendant's negligence) have been established.  It is trite that proof of both negligent conduct and causation is an essential element of a cause of action for negligence.  The policy factors invoked to exclude liability are being applied to plaintiffs who have been injured by the defendant's fault.  A further preliminary point (raised here simply to discount its relevance) is that there is no force in the argument that one should compare the position of those who sustain psychiatric illness as a result of a tort with those many people who suffer psychiatric illness as a result of non-tortious events who will have no means of compensation for their loss, other than that provided through the social security system, the National Health Service, private insurance or charitable provision.  To suggest, for example, that one should not extend liability for psychiatric illness through the tort system because it simply exacerbates the anomalies and inequities that the tort system creates between tortiously injured individuals and non-tortiously injured individuals, is to shift the focus of the debate away from the question of psychiatric illness itself, to the value of the tort system in general as a means of compensating the victims of personal injury, disease or even congenital disability.  That is a much larger question which the Pearson Commission addressed in the 1970s and may well have to be revisited in the future.  The point is that objections to the tort system as a whole should not deflect one from addressing the more limited question of recovery for psychiatric illness within the current tort system.
5. Policy factors
The Law Commission identified several policy factors underlying the courts' attitude to psychiatric illness.  The historical scepticism of psychiatry as a discipline in turn has produced scepticism about the ability of the medical profession to distinguish genuine from false claims and raised the fear that there might be a flood of fraudulent claims.  The credibility of the psychiatric profession is no longer seriously in doubt (for example, we have the Mental Health Act 1983, which erects a whole legal structure for dealing with psychiatric patients, curtailing their civil liberties, on the basis of the diagnosis of mental illness and disorder), and the possibility of fraudulent claims, though clearly present, is not a factor which should cloud the question of compensation.  There is occasionally fraud in claims for physical injury, particularly in the form of exaggerating symptoms, but this is dealt with by the forensic process.
Perhaps carrying greater weight now is the fear that there will be a flood of genuine claims.  Indeed, it is arguable that this is now the only policy factor that can be taken seriously as a reason for limiting the entitlement of plaintiffs to claim damages for psychiatric illness caused by the negligence of another.  There are a number of responses to the floodgates argument.  First, if the claims are genuine then it indicates that there are considerable numbers of victims of negligence who currently go uncompensated.  Similar concerns were expressed in the nineteenth century about claims by employees in respect of injuries at work.  The courts developed the "unholy trinity" of defences, volenti non fit injuria, common employment and contributory negligence, as a means of virtually excluding any claim by workers against their employers.  It was said that imposing such widespread liability would have been too costly and would have impeded the growth of manufacturing industry.  In effect, injured workers were sacrificed to the national interest in promoting economic growth.  
Secondly, if there were to be a flood of genuine claims for psychiatric illness who would pay for it?  Presumably, motorists, employers, consumers and tax-payers who bear the cost of insurance premiums or the cost of self-insurance.  How much would it cost?  Would it add, for example, 10 pence to the cost of a standard insurance policy, 50 pence, £10, £100?  Given that the manner in which the tort system functions in practice is to distribute the loss through an insurance mechanism of some kind, information of this nature is essential to the arguments about the overall cost of "opening the floodgates."  No-one would now suggest that employers should not be liable for negligence on the basis of the cost to industry of compensating the victims of their negligence.  It is simply part of the cost of doing business which must be budgeted for.  If the cost of compensating the victims of psychiatric illness were say, £10 per insurance policy, who is to say that this is a cost that cannot or should not be borne as a matter of legal policy, particularly when much higher costs may be imposed (and met, however reluctantly) when market conditions dictate higher premiums or government policy dictates that there should be a tax on insurance premiums?  Given that, as the Law Commission accepts, there is simply no concrete evidence (though plenty of "gut reactions") as to how many claims there would be, or how expensive it would be to meet them, the floodgates argument is simply unsubstantiated.
Thirdly, the floodgates argument sometimes concentrates on disaster cases such as Hillsborough or the King's Cross fire, where there are a large number of potential victims from one incident.  The vast majority of claims, however, are likely to arise from much smaller incidents where the risk of imposing crushing liability on a defendant is much less obvious.  Moreover, the number of potential claims does not even figure in the lawyer's thinking when considering physical injury.  If 5,000 people had been physically injured at the Hillsborough stadium no one would have suggested that the sheer number of claims should lead to a complete re-think of the manner in which physical injuries are compensated, or to the exclusion of certain types of physical injury according to the precise manner in which they occurred (eg by compensating say leg injuries but not arm injuries).
Finally, it is a strange principle that declares that the greater the extent of the damage caused by the defendant the greater the need to protect the defendant from legal responsibility.  In the realm of pure economic loss, where the argument has also been employed, there may be sound economic reasons for limiting the range of potential liability.  Plaintiffs who are at risk of suffering this form of loss are frequently in a better position to insure against the risk, and more cheaply, than potential defendants.  This argument simply does not apply in the case of psychiatric illness, or at least if it does it proves too much, because precisely the same argument would demonstrate that plaintiffs should insure themselves against the risk of negligently inflicted physical injuries.
Another objection raised to extending liability for psychiatric illness is that the defendant's liability will be "disproportionate."  It is not clear what weight this argument is meant to have, except that it is presumably intended to apply more to disaster cases such as Hillsborough or King's Cross than the typical road traffic or work accident.  In this sense it is almost a restatement of the floodgates argument.  Moreover, under the tort system liability is already disproportionate.  It is one of the standard criticisms of negligence as reflecting a principle of moral responsibility that the awards of damages bear no relationship whatsoever to the degree of the defendant's fault.  Once liability is established the principle of compensating the plaintiff's actual loss takes over.  If this means a claim for £1.5 million in the case of serious brain damage to a child, then the fact that the defendant was only "a little bit" negligent is neither here nor there.  Conversely, the most gross instances of careless conduct may produce small awards of damages where, quite fortuitously, the defendant's conduct has caused little damage.
The Law Commission Consultation Paper considered and then dismissed two further policy objections sometimes raised.  First, there may be differences of medical opinion due to the fluidity of psychiatric thinking and secondly, that "psychiatric illness is less serious than bodily injury."  The first point was rejected on the ground that the courts are no less capable of weighing competing psychiatric opinion than competing expert opinion in many other spheres, and moreover there is evidence that psychiatrists are as consistent in their diagnoses as other physicians.  As to the second, the Law Commission clearly accepts that psychiatric illness is as deserving of the law's protection as physical injury.  In this it is respectfully submitted that the Commission is correct.
The final policy argument is that the plaintiff is commonly a "secondary victim."  While not expressly endorsing this view, neither does the Law Commission reject it outright, merely commenting that it may simply be a restatement of the floodgates argument in disaster cases, and in any event has no application where the plaintiff is a "primary victim."  There are two respects in which the classification of the victims of psychiatric illness as "secondary" victims is flawed.  First, by distinguishing between the "primary victim" who suffers physical injury and the "secondary victim" who suffers psychiatric illness one is simply re-stating the proposition that physical injury is somehow superior to, or morally more entitled to compensation than, psychiatric illness.  If one accepts the premise that psychiatric illness is just as substantial and disabling as physical injury and is just as much a subject for compensation under the tort system then the distinction between "primary victims" who suffer physical injury and "secondary victims" who suffer psychiatric illness dissolves.  A mother who suffers psychiatric illness on witnessing the death of her child is as much a primary victim of the defendant's negligence as the child.  The causal mechanism by which the mother sustains the damage is different, involving as it does the impact of witnessing the event working on the mother's mind rather than, say, the impact of metal on flesh and bone in a road traffic accident.  To treat the causal mechanism as a reason for describing one victim as "secondary" is merely to conclude that it is somehow "less deserving."  A person who is financially dependent upon a victim of personal injury (whether physical or psychiatric), such as a dependant under the Fatal Accidents Act 1976, is more accurately described as a secondary victim.  This is the correct analogy with Lord Oliver's examples of "outmoded concepts of the quasi-proprietorial rights of husbands over their wives, parents over their children or employers over their menial servants" (in Alcock at [1992] 1 AC 310, 409, cited in the Consultation Paper at para. 4.12)
Secondly, within the context of claims for psychiatric illness, the distinction drawn in Alcock between "primary" and "secondary" victims is also false, and should not form the basis of different treatment in law.  It is a means of classifying or categorising plaintiffs in order to explain the present legal structure, but it is not a justification for the present legal structure.  For example, in Hambrook v Stokes Bros [1925] 1 KB 141 the Court of Appeal awarded damages for the first time to a "secondary victim," the mother who watched a runaway lorry descend the hill where she had just left her children, as opposed to the plaintiff who succeeded because she feared for her own safety (as in Dulieu v White & Sons [1901] 2 KB 669).  Clearly, the Court considered that it would have been wrong not to compensate the mother solicitous for her children's safety, when another mother could succeed in a claim if she feared only for her own safety.  The anomaly which this example highlights provides not merely the justification for extending liability to "secondary victims" but also the rationale for suggesting that the distinction between "primary" and "secondary" victims does not bear logical scrutiny.  Given that in Page v Smith [1995] 2 All ER 736 a majority of the House of Lords concluded that in the case of a "primary" victim psychiatric damage need not even be foreseeable provided physical injury to the plaintiff is foreseeable (even though the physical injury does not in fact occur), the distinction between the "selfish mother" and the mother solicitous for her children's welfare appears even more untenable.  The "selfish mother" will recover for her psychiatric illness almost automatically, whereas the "solicitous mother" will have to jump all the hurdles of proximity in time and space, the suddenness of the event, the aftermath, the closeness of the tie of love and affection etc.  Although, on the facts of the hypothetical example given in Hambrook v Stokes Bros she would certainly satisfy these additional criteria, it is simply absurd that this artificial legal categorisation, a product of the history of the law's development, should produce discrete tests for recovery of damages.  A "primary" victim, whether it be a person who fears for her own safety (Dulieu v White & Sons [1901] 2 KB 669), a rescuer (Chadwick v British Railways Board [1967] 1 WLR 912) or an involuntary participant in the events (Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd's Rep 271) has suffered psychiatric illness as a consequence of what (s)he has witnessed/experienced, just as the relatives in Alcock suffered psychiatric illness as a result of what they had witnessed/experienced.  They may have observed the events at close quarters, but nonetheless the mechanism by which the psychiatric illness was caused is essentially the same in the case of both "primary" and "secondary" victims.  What possible reason can there be for distinguishing between them?
In the "rescuer" cases there is clearly a different strand of policy at work, in that the law seeks to encourage acts of valour by individuals in attempting to rescue others put at risk by a negligent defendant, or at least the law should not seek to discourage such conduct by denying the rescuer compensation for injury incurred in the act of rescue.  But in seeking to promote this worthy objective the law entirely abandons the notion of the closeness of the relationship between plaintiff and victim.  This is then "explained" by putting the rescuer into the artificial legal category of "primary" victim, despite the fact that in Chadwick the plaintiff's psychiatric illness came as a reaction to the events he had witnessed, involving injury to others but no fear of injury to himself.  The plaintiff was undoubtedly closer in time and space than the plaintiffs in Alcock, (as indeed might be a mere bystander) but he could not possibly satisfy a test based on relationship.  Calling the plaintiff a "primary victim" does not assist the analysis since there must still be some rational justification for permitting such plaintiffs to recover while denying the claims of relatives.  The categorisation merely states a conclusion rather than a basis for the distinction.  The arbitrary nature of the "rescuer principle" is only highlighted by the courts difficulty in deciding precisely who qualifies as a rescuer (see McFarlane v E.E. Caledonia Ltd and Frost v Chief Constable of South Yorkshire, The Times, July 3, 1995, QBD).
6. The options for reform
In reviewing the law on liability for psychiatric illness there are, in general terms, four options: 

(1) abolish all liability for psychiatric illness in the absence of physical injury; 
(2) leave the present rules on recovery as they are; 
(3) amend some of the most arbitrary rules, generally by removing restrictions on recovery thereby extending liability, though retaining some restrictions; 
(4) treat liability for psychiatric illness in exactly the same way as liability for physical injury.  

The first option, though not without support, is rightly rejected by the Law Commission.  In some respects it is a sad commentary that at the end of the twentieth century the question of whether there should continue to be liability for negligently inflicted psychiatric illness that does not arise from physical injury to the plaintiff even needs to be asked.  The option of leaving the present rules in place is also rejected.  The Commission takes the view that there is a need for reform.  This must be right.  We currently have the worst of all worlds in which arbitrary lines are drawn for "policy reasons" (albeit that the policies are not always clearly articulated, even less justified by careful analysis) but the lines do not produce certainty.  Moreover, reform must come in the form of legislation.  The law on liability for psychiatric illness is entirely judge-made.  The anomalies and arbitrary results which are the hallmark of the law in this area are not a good advertisement for judicial law-making, and the courts are unlikely to be able to free themselves from the intellectual morass into which they have wandered, given the restrictive view taken in Alcock.
The Law Commission has taken the provisional view that the third option is the appropriate route.  Whilst rejecting a return to a requirement of actual or apprehended physical injury to the plaintiff, the Commission accepts that there should be special limitations over and above reasonable foreseeability where the defendant has negligently injured or imperiled someone other than the plaintiff.  This necessarily implies acceptance of one or more of the policy factors.  Nonetheless, the Law Commission's principles of liability would extend the scope of liability by abandoning the requirement of closeness in time and space, and perception through one's own unaided senses, where there is a close tie of love and affection between the plaintiff and the "primary" victim.  This would effectively abolish the artificial distinction between the "aftermath" and the "immediate aftermath," but it would also open up a much wider range of potential plaintiffs than those whose claims were rejected in Alcock.  Witnessing events through live television broadcasts would qualify, as indeed would simply being told about the events subsequently.  This proposal removes two of the four planks restricting recovery in Alcock.  The Commission apparently wishes to retain the first plank, the closeness of the tie of love and affection, while seeking views on whether there should be a fixed list of relationships that would qualify, a list creating a rebuttable presumption of closeness, no list, or some other variant.  The Commission appears to be agnostic about the fourth plank, the requirement that the plaintiff's psychiatric illness must be "shock induced."  It is arguable that this is the most anomalous of all the current restrictions.  It appears to be a product of the way in which the law on "nervous shock" developed (the phrase itself implying a sudden event), and in medical terms reflects the understanding of a previous age.  Even if a person who sustains trauma in the form of a sudden assault on the nervous system is more likely to suffer psychiatric illness, this should be a matter for causation.  It is not a reason for excluding the plaintiff who develops a psychiatric illness over a period of time, for example by watching a child gradually die in a hospital bed (see Sion v Hampstead Health Authority [1994] 5 Med LR 170; and Taylorson v Shieldness Produce Ltd [1994] PIQR P329).  There is no greater moral worth in suffering psychiatric illness in reaction to a sudden event than suffering a similar illness in response to events extended over a period of time.  
The fourth, and most radical, option would be to abolish the distinction between the principles of liability which apply to claims for physical injury and claims for psychiatric illness, whether or not arising from physical injury to the plaintiff.  This would remove any special limitations over and above reasonable foreseeability of the damage, assuming, of course, that the plaintiff can prove both negligence and causation.  It is submitted that this is the preferable option, for a number of reasons.  First, the present state of the law reflects discredit upon the legal system by drawing arbitrary distinctions, for "policy" reasons, which are extremely difficult to defend on rational grounds.  Why are we selecting certain plaintiffs as worthy of compensation while denying others?  Why should Mrs. McLoughlin succeed, while Mr. Sion or Mr. and Mrs. Taylorson are denied compensation?  Even policy should seek to draw lines that are intellectually defensible.  Moreover, the policy line is drawn in such a way as to produce uncertainty in the law, which almost invites litigation.  
Secondly, the floodgates argument (which is perhaps the strongest of the policy grounds for restricting liability) is not persuasive, at least in the absence of empirical evidence that the number of claims for genuine psychiatric illness (as opposed to grief or distress) will far outstrip the ability of defendants, through their insurance arrangements, to meet the costs.  Thirdly, the ordinary principles of negligence provide sufficient means for controlling the extent of liability.  The psychiatric illness must be foreseeable, and the plaintiff must still prove negligence and, importantly, causation of a genuine psychiatric illness.  To some extent this involves placing trust in the ability of the medical profession to identify causal mechanisms in cases of psychiatric illness, but it must be remembered that the plaintiff always has the burden of proof, and where there is doubt, on the balance of probabilities, the claim will fail.  
Finally, and most importantly, psychiatric illness is a form of loss which is equally as important and worthy of protection as physical injury.  It is not a secondary injury, and the plaintiffs are not "secondary victims."  The causal mechanism by which plaintiffs sustain psychiatric illness is different from that by which plaintiffs sustain physical injury, in that it involves the workings of the mind, but that does not render their injuries any less real or less disabling.  Moreover, in the case of physical injuries leading to psychiatric illness, eg depression, the causal mechanism is the same as cases not involving physical injury (ie the impact of the event upon the plaintiff's mind), and yet it is accepted without question that this loss will be compensated as a matter of course (provided negligence and causation are established).  Thus, the distinction between causal mechanisms which the different approach to physical and psychiatric damage appears to suggest is significant in terms of liability rules, is not universally applied.  
Further, the present law on recovery for psychiatric illness in the absence of physical injury distinguishes between "primary" and "secondary" victims despite the fact that the causal mechanism is essentially the same.  Thus, in so far as an "involuntary participant" in the event suffers foreseeable psychiatric illness as a consequence of the events then the plaintiff should succeed, but the "involuntary participant" should not recover damages simply by virtue of being classified as a "primary victim."  The plaintiff suffers psychiatric illness as a result of the effect on the mind of certain events, which may or may not involve "participation."  A relative of a deceased person who did not witness the death is "involved" in the consequences of the events, and the psychiatric illness is also a product of the effect on the mind of the events.  The precise causal mechanism by which these plaintiffs sustain their psychiatric illness should not form the basis of a legal distinction which has such profound consequences as the ability to recover damages.  There is no inherent moral or ethical superiority in one or other of these causal mechanisms (eg the fact that the involuntary participant may feel "guilt").  Mr. Chadwick, for example, suffered psychiatric illness as a consequence of what he had witnessed (Chadwick v British Railways Board [1967] 1 WLR 912), just as the relatives in Alcock suffered psychiatric illness as a result of what they had witnessed.  He may have been more directly involved, and witnessed the events at close quarters, but nonetheless the mechanism by which his injury was caused was essentially the same as that of the plaintiffs in Alcock.  The fact that he was a "rescuer" does not alter this.  If it is said that this is a more likely basis upon which a person might suffer psychiatric illness then this will simply be reflected in the number of plaintiffs who are able to prove causation.  
If the Law Commission were to adopt the fourth option most of the specific issues that the Consultation Document raises for debate would disappear.  There would be no need to identify a fixed list of qualifying relationships for plaintiffs.  The closeness of the tie of love and affection would clearly be a factor to be considered when assessing causation, in that the closer the tie the more likely there is to be a causal link.  But other than that, requiring plaintiffs to prove the quality of their emotional ties (or giving the defendant an incentive to disprove them) is intrusive and likely to lead to an unedifying spectacle in the courts.  Moreover, it removes the arbitrary distinction between so called "primary" and "secondary" victims.  If Mr. Chadwick can recover without any relationship whatsoever to the victims of the train accident, it is difficult to see why relatives and friends must prove the quality of their relationship.  
The closer the emotional tie the easier it will be to establish that the psychiatric illness was reasonably foreseeable.  Thus, it may come to the point that in some instances foreseeability can be assumed (just as a motorist who drives a vehicle on the road carelessly can readily foresee the risk of physical injury to other road users).  Nor would there be any difficulty in dealing with the claims of bystanders.  If a bystander suffered a genuine psychiatric illness, proved the causal link between the event and the illness and was not abnormally sensitive, then there is no reason in principle for objecting to recovery.  The numbers who would satisfy these criteria would probably be relatively small.  Given that a bystander should be entitled to recover for psychiatric illness in some circumstances there would be no real need to attempt to define what constitutes a "rescue."  If a rescuer satisfies the requirements of a genuine psychiatric illness and proof of the causal link between the event and the illness (s)he should recover.  While the policy reasons for looking favourably upon rescuers are well-understood they should not form a discrete category of plaintiff (although in practice those same policy reasons may persuade a court to look favourably upon the rescuer's case in circumstances where there might be some slight doubt, eg as to the causal link).
Should professional rescuers be treated differently?  There is an argument for treating professional rescuers differently in all cases where they sustain injury, whether physical or psychological, in the course of a rescue, but given that in Ogwo v Taylor [1987] 2 WLR 988 the House of Lords concluded that the same principles of liability should apply to a professional rescuer who sustains physical injury as to any other claim for personal injury, there would seem to be no good reason for distinguishing psychiatric injury.  On the other hand, causation arguments would appear to have some force here.  The fact that professional rescuers will to some extent have become hardened to witnessing horrific events may make it more difficult to prove causation, and the fact that they are likely to have witnessed several such events may make it more difficult to attribute psychiatric illness to a specific event.  Clearly, this is a matter of degree.
Under the tort of negligence foreseeability is an essential element of culpability, and therefore the requirement that the plaintiff be of reasonable fortitude should be retained, as an aspect of foreseeability.  However, just as defendants are required to assume that the general public will include people with a visual impairment (Haley v London Electricity Board [1965] AC 778) so also it must be recognised that some people are more vulnerable to suffering psychiatric illness.  This, however, is foreseeable.  The fact that some relatives do not suffer psychiatric illness as a result of witnessing the death of a loved one, for example, does not make it unforeseeable that others would suffer a psychiatric reaction.  Where, on the other hand, the reaction of the plaintiff is due to some peculiar abnormality which could not reasonably be predicted (eg where a plaintiff suffers psychiatric illness because the defendant carelessly ran over a pen) then the principle of fault liability suggests that the defendant should not be held responsible.  Since the Consultation Paper was published the House of Lords has held that where physical injury to the plaintiff was foreseeable, so that the plaintiff can be regarded as a "primary" victim, the defendant must take the plaintiff "as he finds him" with respect to any psychiatric damage which results, even if physical injury did not in fact occur: see Page v Smith [1995] 2 All ER 736.  This would appear to eliminate the requirement for reasonable fortitude, because the plaintiff succeeds irrespective of the state of his "phlegm" if physical injury was foreseeable.  This decision has the unwelcome effect of reinforcing the present arbitrary distinction between physical injury and psychiatric injury, albeit by making it easier to recover for psychiatric illness where physical injury was merely foreseeable.  Unless all forms of personal injury which are a direct consequence of the negligence are to be regarded as a foreseeable consequence of any other form of personal injury, the requirement that the plaintiff's psychiatric illness should be a foreseeable consequence of the defendant's negligence should be retained.  If, on the other hand, Page v Smith has effectively restored Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560 as the test of remoteness of damage in cases of personal injury then it is perfectly logical to treat all forms of personal injury as foreseeable as a result of the occurrence of any other form of personal injury.  In these circumstances there is no need to distinguish between types of personal injury for the purpose of remoteness of damage, and therefore no need to ask whether psychiatric illness was foreseeable if physical injury to the plaintiff was foreseeable. 
Under the present law it is distinctly odd that it could be easier for a plaintiff to recover damages for psychiatric illness consequent upon damage to property than it is for plaintiffs who suffer such injury consequent upon physical injury to another person, which appears to be the effect of Attia v British Gas [1987] 3 All ER 455.  If liability for psychiatric illness were to be based upon the same test as liability for physical injury then there would be no difficulty applying this test to cases where the psychiatric illness is the consequence of witnessing property damage.  If, however, some additional restrictions on recovery for psychiatric illness were to be considered essential then it is difficult to see why any plaintiff should succeed in a case such as Attia when plaintiffs who suffer psychiatric illness as result of physical injury to another person are excluded, whatever the circumstances of that exclusion.  In other words, as long as any plaintiff is denied recovery on policy grounds when their illness is the product of physical injury to a third party it would not be just, fair or reasonable to permit recovery arising from witnessing property damage.  Any other rule would appear to suggest that the law is more willing to protect the consequences of property damage than it is the consequences of personal injury, a view which reverses the priorities that most people would want to support. 
The final issue concerns liability for negligent communication of bad news to the plaintiff.  The Law Commission's provisional view is that the existence of a duty of care should not rest on foreseeability alone.  There is no good reason to distinguish between negligent statements which produce physical injury (as eg where the defendant says "the wall is safe", when the wall subsequently collapses on the plaintiff) and negligent statements which produce psychiatric illness (see eg Jinks v Cardwell (1987) 39 CCLT 168, Ontario High Court).  Moreover, excluding such claims when actions in respect of economic loss are available under Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 would be perverse.  More problematic is the situation where the statement is true.  In principle there is no obvious reason for excluding such claims where the negligence consists of breaking the news in such a way as to foreseeably cause psychiatric illness.  The problem from the plaintiff's perspective will be to prove causation, namely that it was the manner of the communication rather than the contents of the communication which caused the illness.  It seems so unlikely that a plaintiff will be able to establish this that any risk to those charged with conveying bad news would be virtually non-existent.
7. Conclusion
The development of the law on liability for psychiatric illness over the last hundred years reflects, to some extent, the gradual understanding of the causes of psychiatric illness and a growing acceptance of the seriousness of its consequences.  But echoes of judicial scepticism about the validity of psychiatry as a discipline, and therefore about the importance of its subject, remain, along with the fear that there are vast numbers of potential plaintiffs waiting to get on the compensation gravy train.  This can be seen in the shape of the liability rules which arbitrarily select some plaintiffs for compensation while excluding others, equally deserving, in the name of "policy," sometimes articulated, but often as not hidden in meaningless legal categories which bring nothing but discredit to the law.  Some still cling to the Cartesian division between mind and body, despite the fact that as medical knowledge develops the distinction looks increasingly untenable.  But the argument that the law should treat psychiatric illness on the same basis as physical injury does not ultimately rest on demonstrating scientifically that there are inextricable links between the welfare of the mind and the body.  Rather, it looks to the practical consequences of these forms of damage and states that there is no sensible basis for treating psychiatric damage as less deserving of the law's protection.  In Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, 536 Lord Pearce said that: 

"How wide the sphere of the duty of care in negligence is to be laid depends ultimately on the courts' assessment of the demands of society for protection from the carelessness of others."  

The time has come to treat psychiatric illness with less subtlety and more principle.

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