Introduction
This question concerns the area of negligence known as nervous shock, or more accurately, psychiatric injury. The issue is whether a mother, who suffers psychiatric injury after witnessing her son's accident on television, can successfully sue the person who negligently caused the accident. In the law of England and Wales, individuals who suffer psychiatric harm as a result of witnessing an event, rather than being directly involved, are known as 'secondary victims'. Their ability to claim is restricted by a set of strict control mechanisms established by the courts to limit the scope of liability. This answer will argue that, based on current legal principles, the mother's claim would be highly unlikely to succeed because she did not perceive the event with her own unaided senses.
The Legal Framework for Secondary Victims
To establish a claim in negligence, a claimant must prove that the defendant owed them a duty of care, breached that duty, and that the breach caused actionable damage. For secondary victims, the courts have been cautious in establishing a duty of care due to policy concerns about opening the ‘floodgates’ to litigation (Horsey and Rackley, 2021). The leading authority is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, which arose from the Hillsborough football stadium disaster. The House of Lords set out several requirements that a secondary victim must satisfy to establish a duty of care. These are:
- A close tie of love and affection with the primary victim of the accident.
- Proximity to the accident in time and space, or its immediate aftermath.
- Perception of the event with one's own unaided senses.
- The psychiatric injury must be a result of a sudden and shocking event.
The claimant must also have suffered a medically recognised psychiatric illness, as mere grief or distress is not sufficient.
Applying the Law to the Mother’s Claim
The mother’s claim must be assessed against the Alcock criteria.
Close Tie of Love and Affection
The first test requires a close emotional bond between the claimant and the immediate victim. In Alcock, the court stated that such a tie is presumed to exist in certain relationships, such as between a parent and child. As the claimant is the mother of the son involved in the accident, this requirement would be automatically satisfied, subject to any evidence to the contrary.
Proximity and Means of Perception
The second and third criteria are the most significant hurdles for the mother’s claim. They require both physical and temporal proximity, and that the shock was caused by direct perception of the event. The case of McLoughlin v O'Brian [1983] 1 AC 410 established that being present at the 'immediate aftermath' could satisfy this test. In that case, a mother who saw her family in hospital suffering from their injuries two hours after a road accident was deemed to have been proximate.
However, the mother in this scenario witnessed the event on television. This issue was directly addressed in Alcock, where several claimants had seen the disaster unfold on live television broadcasts. The House of Lords held that this was not sufficient to establish proximity. Lord Ackner stated that viewing a simultaneous broadcast of an event is not equivalent to "sight or hearing of the event or its immediate aftermath". The court reasoned that television broadcasters operate under a code of conduct that prevents them from showing the suffering of identifiable individuals. Therefore, a viewer would not witness the specific horror of their loved one's injury or death, but rather a more general and edited depiction of the scene. The broadcast acts as an intervening element, breaking the chain of direct perception.
While the court in Alcock did not entirely rule out the possibility of a successful claim via a broadcast in a very extreme case (for example, a live feed showing children in a hot air balloon bursting into flames), this was a narrow hypothetical. For a typical news broadcast of an accident, the rule in Alcock would apply, and the mother’s claim would fail on this ground.
Sudden Shock
The final requirement is that the psychiatric illness must be caused by a sudden, shocking event, rather than a gradual accumulation of grief. If the television broadcast was graphic and horrifying, it is possible that this test could be met. However, since the mother's claim would already have failed on the proximity and perception tests, whether the event was 'shocking' becomes a moot point.
Conclusion
In conclusion, a mother who suffers psychiatric injury after watching her son's accident on television cannot, under the current law, successfully sue the person responsible for the accident. While she would satisfy the requirement of having a close tie of love and affection, her claim would fail on the crucial Alcock control mechanisms relating to proximity. The precedent set in Alcock v Chief Constable of South Yorkshire Police is clear that witnessing an event through a television broadcast does not constitute the necessary direct and unaided perception of the event or its immediate aftermath. Therefore, a court would find that no duty of care was owed to her by the defendant.
References
- Horsey, K. and Rackley, E. (2021) Tort Law. 7th edn. Oxford: Oxford University Press.
- Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
- McLoughlin v O'Brian [1983] 1 AC 410.
