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Comparing Liability for Psychiatric Damages in English Law and Restatement of Torts, Study Guides, Projects, Research of Law

The similarities between English law and the proposals in the Restatement (Third) of Torts regarding liability for psychiatric damages. It references various cases and books dealing with the subject and provides insights into the evolution of the law in England regarding recovery for psychiatric illness. The document also touches upon the reasonable foreseeability requirement and the potential impact of the Restatement (Third) on English law.

What you will learn

  • How does the Restatement (Third) of Torts propose to change English law regarding psychiatric damages?
  • What is the role of reasonable foreseeability in English law regarding psychiatric damages?
  • What are some notable cases and books dealing with the subject of psychiatric damages in English law?
  • What is the current state of English law regarding recovery for psychiatric illness?
  • What is the potential impact of the Restatement (Third) of Torts on English law regarding psychiatric damages?

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1177
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:
A VIEW OF THE PROPOSED RESTATEMENT (THIRD)
PROVISIONS FROM ENGLAND
M. H. Matthews*
INTRODUCTION
“Why an English perspective?” is perhaps the first question
raised by the title of this Article. It can be answered quickly. The
Reporters’ Notes to the proposals in the 2007 draft Restatement
(Third) of Torts: Liability for Physical and Emotional Harm sections
46–47 that are under consideration here refers to the similarity in
structure between the law in Great Britain and the proposals in the
Restatement (Third). The current English state of affairs1 may tell
us something about the Restatement (Third)’s proposals,2 although
institutional differences—one obvious example is the difference in
the use of juries—may mean rules work better in one jurisdiction
than another.3 Indeed, it has been argued that the prevalence of the
* Fellow in Law, University College, Oxford; CUF Lecturer in Law,
Oxford University. In writing this Article I have, with the kind permission of
the Oxford University Press, drawn on the material that appears in chapter 3 of
MARTIN MATTHEWS, JONATHAN MORGAN & COLM O’CINNEIDE, HEPPLE &
MATTHEWS TORT: CASES AND MATERIALS (6th ed. 2008). I have also benefited
from the comments of David Partlett and Mike Green, and additionally from
views expressed at the Symposium. The usual exemption applies.
1. For books dealing with the subject of recovery for psychiatric illness,
see NICHOLAS J. MULLANY & PETER R. HANDFORD, TORT LIABILITY FOR
PSYCHIATRIC DAMAGE (2d ed. 2006); HARVEY TEFF, CAUSING PSYCHIATRIC AND
EMOTIONAL HARM: RESHAPING THE BOUNDARIES OF LEGAL LIABILITY (2009).
2. Michael A. Jones argues that “[d]espite their supposedly ‘pragmatic’
basis, [the rules of recovery] fail to provide a ‘bright line’ rule by which
practitioners can give clear legal advice to their clients.” Michael A. Jones,
Liability for Psychiatric Damage: Searching for a Path Between Pragmatism
and Principle, in EMERGING ISSUES IN TORT LAW 113, 113 (Jason W. Neyers,
Erika Chamberlain & Stephen G.A. Pitel eds., 2007). Given the concern for
bright lines expressed by the Reporters, this may not be encouraging. The
proposals are, however, as we shall see, not identical.
3. On comparative tort reasoning, see Jane Stapleton, Benefits of
Comparative Tort Reasoning: Lost in Translation, in T
OM BINGHAM AND THE
TRANSFORMATION OF THE LAW: A LIBER AMICORUM 773 (Mads Andenas & Duncan
Fairgrieve eds., 2009); cf. Basil Markesinis, Goethe, Bingham and the Gift of an
Open Mind, in TOM BINGHAM AND THE TRANSFORMATION OF THE LAW: A LIBER
AMICORUM, supra, at 729. Also note the comments of Lord Steyn in McFarlane
v. Tayside Health Board, [2000] 2 A.C. 59, 81 (H.L.) (appeal taken from Eng.).
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NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:

A VIEW OF THE PROPOSED RESTATEMENT (THIRD)

PROVISIONS FROM ENGLAND

M. H. Matthews*

INTRODUCTION

“Why an English perspective?” is perhaps the first question

raised by the title of this Article. It can be answered quickly. The

Reporters’ Notes to the proposals in the 2007 draft Restatement

(Third) of Torts: Liability for Physical and Emotional Harm sections

46–47 that are under consideration here refers to the similarity in

structure between the law in Great Britain and the proposals in the

Restatement (Third). The current English state of affairs

1

may tell

us something about the Restatement (Third) ’s proposals,

2

although

institutional differences—one obvious example is the difference in

the use of juries—may mean rules work better in one jurisdiction

than another.

3

Indeed, it has been argued that the prevalence of the

  • Fellow in Law, University College, Oxford; CUF Lecturer in Law, Oxford University. In writing this Article I have, with the kind permission of the Oxford University Press, drawn on the material that appears in chapter 3 of M ARTIN M ATTHEWS , J ONATHAN M ORGAN & C OLM O’C INNEIDE , H EPPLE & M ATTHEWS ’ T ORT : C ASES AND M ATERIALS (6th ed. 2008). I have also benefited from the comments of David Partlett and Mike Green, and additionally from views expressed at the Symposium. The usual exemption applies.
  1. For books dealing with the subject of recovery for psychiatric illness, see N ICHOLAS J. M ULLANY & P ETER R. H ANDFORD , T ORT L IABILITY FOR P SYCHIATRIC D AMAGE (2d ed. 2006); H ARVEY T EFF , C AUSING P SYCHIATRIC AND E MOTIONAL H ARM : R ESHAPING THE B OUNDARIES OF L EGAL L IABILITY (2009).
  2. Michael A. Jones argues that “[d]espite their supposedly ‘pragmatic’ basis, [the rules of recovery] fail to provide a ‘bright line’ rule by which practitioners can give clear legal advice to their clients.” Michael A. Jones, Liability for Psychiatric Damage: Searching for a Path Between Pragmatism and Principle , in E MERGING I SSUES IN T ORT L AW 113, 113 (Jason W. Neyers, Erika Chamberlain & Stephen G.A. Pitel eds., 2007). Given the concern for bright lines expressed by the Reporters, this may not be encouraging. The proposals are, however, as we shall see, not identical.
  3. On comparative tort reasoning, see Jane Stapleton, Benefits of Comparative Tort Reasoning: Lost in Translation , in TOM BINGHAM AND THE TRANSFORMATION OF THE LAW : A LIBER AMICORUM 773 (Mads Andenas & Duncan Fairgrieve eds., 2009); cf. Basil Markesinis, Goethe, Bingham and the Gift of an Open Mind , in TOM BINGHAM AND THE T RANSFORMATION OF THE LAW : A LIBER AMICORUM, supra , at 729. Also note the comments of Lord Steyn in McFarlane v. Tayside Health Board , [2000] 2 A.C. 59, 81 (H.L.) (appeal taken from Eng.).

1178 WAKE FOREST LAW REVIEW [Vol. 44

jury trial and the system of funding lawyers in the United States

creates a need for clearer rules there than in England.

4

I shall emphasize English law, but as Great Britain comprises

Scotland and England,

5

it is only fair to acknowledge the Scottish

Law Commission’s paper on this topic.

6

Some years before the

Scottish Law Commission reported, the subject of recovery for

psychiatric illness had also been considered by the Law Commission

in England,

7

but there was no legislative action in response. More

recently, the Department of Constitutional Affairs

8

produced a

Consultation Paper in 2007 on the law of damages,

9

and this Article

contained some discussion of recovery for psychiatric illness.

10

The

Government’s stated preference was for any reform to occur through

case law, although it should be noted that English judges have on

occasion expressed a contrary wish, that is, favoring legislative

reform.

11

Academic writings expressing dissatisfaction with the

state of English law have not gone unnoticed in the courts. In White

v. Chief Constable of South Yorkshire Police ,

12

reference was made in

the House of Lords to the differing views of Stapleton

13

(arguing for

abolition of liability for negligently inflicted psychiatric illness) and

those in Tort Liability for Psychiatric Damage

14

(arguing for

liability based on reasonable foreseeability), but the House took the

view that it could not alter the law so radically in either direction.

15

  1. See D.W. Robertson, An American Perspective , in T ORT LAW 285 (6th ed. 2008).
  2. England, for this purpose, includes Wales. The United Kingdom, on the other hand, means England (including Wales), Scotland, and Northern Ireland. 6_._ S COTTISH L AW C OMM ’ N , PUB. NO. 196, R EPORT ON D AMAGES FOR P SYCHIATRIC I NJURY (2004); see also Donal Nolan, Reforming Liability for Psychiatric Injury in Scotland: A Recipe for Uncertainty? , 68 M.L.R. 983 (2005) (U.K.). 7_._ T HE L AW C OMM ’ N (U.K.), P UB. N O. 249, L IABILITY FOR P SYCHIATRIC I LLNESS (1998).
  3. The Ministry of Justice has now taken over the responsibilities of this Department. 9_. See generally_ D EP ’ T OF C ONSTITUTIONAL A FFAIRS (U.K.) , T HE L AW OF D AMAGES , CP/07 (2007).
  4. Id. at 36 – 43, app. B.
  5. See Lord Oliver’s opinion in Alcock v. Chief Constable of South Yorkshire Police , [1992] 1 A.C. 310, 419 (H.L.) (appeal taken from Eng.).
  6. White v. Chief Constable of S. Yorkshire Police, [1999] 2 A.C. 455 (H.L.) (appeal taken from Eng.).
  7. Jane Stapleton, In Restraint of Tort , in 2 T HE F RONTIERS OF L IABILITY 83, 83–102 (Peter Birks ed., 1994).
  8. N ICHOLAS J. M ULLANY & P ETER R. H ANDFORD , T ORT L IABILITY FOR P SYCHIATRIC D AMAGE 65 (1993). For further academic opinion, see Jones , supra note 2, at 113; T EFF , supra note 1, at 171–89.
  9. White , [1999] 2 A.C. at 500.

1180 WAKE FOREST LAW REVIEW [Vol. 44

bodily harm and the emotional disturbance results from the

danger; or (b) occurs in the course of specified categories of

activities, undertakings, or relationships in which negligent

conduct is especially likely to cause serious emotional

disturbance.

24

1. Points of Particular Interest

a. Serious Emotional Disturbance. The term “serious

emotional disturbance” is not defined in the Restatement (Third) ,

but it is important to realize that it is not within the definition of

“physical harm” in section 4 of the proposed Restatement (Third).

25

English law has traditionally required emotional disturbance to

constitute a “recognizable psychiatric illness” before it is actionable

in the absence of physical harm.

26

It would seem that not every

“recognizable psychiatric illness” would qualify as a serious

emotional disturbance,

27

but the opposite would also appear to be

true. On balance, it may well be that the Restatement (Third) ’s

proposal is wider: the comment to the proposed section 46 of the

Restatement (Third) acknowledges “a modest difference,” the

inference here being that the English position is more restrictive.

28

“Recognizable” means recognizable by the medical profession, and so

24. R ESTATEMENT (T HIRD ) OF T ORTS : L IAB. FOR P HYSICAL & E MOTIONAL

H ARM § 46 (Tentative Draft No. 5, 2007).

  1. Section 4 defines physical harm as “the physical impairment of the human body (‘bodily harm’) or of real property or tangible personal property (‘property damage’). Bodily harm includes physical injury, illness, disease, and death.” R ESTATEMENT (T HIRD ) OF T ORTS : L IAB. FOR P HYSICAL & E MOTIONAL H ARM § 4 (Tentative Draft No. 5, 2007). In the final version of the Restatement (Third) , section 45 will define “emotional harm” as impairment or injury to a person’s “emotional tranquility.” For a recent decision in England where the House of Lords decided that pleural plaques (an asbestos-related condition) did not qualify as physical injury (and hence allow recovery of consequent mental distress), see Rothwell v. Chemical & Insulating Co. , [2007] UKHL 39, [2008] A.C. 281 (appeal taken from Eng.). Since three High Court decisions in the 1980s, insurers had been settling cases on the basis that this injury was actionable. See id. at 288–89. The Ministry of Justice issued a Consultation Paper on the subject. See M INISTRY OF J USTICE , P LEURAL P LAQUES , CP14/ (2008). For legislation in Scotland to reverse the effect of Rothwell , see Damages (Asbestos-related Conditions) (Scotland) Act, 2009 , (A.S.P. 4). On the position in England, note that the Damages (Asbestos-related Conditions) Bill, 2008–09, Bill [33] (Eng.) has passed the House of Commons in the United Kingdom Parliament and has received a first reading in the House of Lords. On what counts as personal injury, see further Yearworth v. North Bristol NHS Trust , [2009] EWCA (Civ) 37, [2009] 3 W.L.R. 118 (Eng.).
  2. Alcock , [1992] 1 A.C. 310. 27_._ T EFF, supra note 1, at 172.
  3. Consider the facts in the English case of Reilly v. Merseyside Regional Health Authority , (1995) 6 Med. L.R. 246 (C.A. Civ.) (Eng.). See also Des Butler, Identifying the Compensable Damage in “Nervous Shock” Cases , 5 T ORTS L.J. 67, 74–79 (1997) (Austl.).

2009] A VIEW FROM ENGLAND 1181

the primary decision maker would seem to be different in the two

alternatives (that is, in effect, the medical profession in the English

doctrine, but the judge and jury, guided by medical evidence (when

presented), on an apparently overall wider concept in the

Restatement (Third) ’s proposal). Lord Bridge in McLoughlin v.

O’Brian

29

referred to the English position as follows:

The common law gives no damages for the emotional distress

which any normal person experiences when someone he loves

is killed or injured. Anxiety and depression are normal human

emotions. Yet an anxiety neurosis or a reactive depression

may be recognisable psychiatric illnesses, with or without

psychosomatic symptoms. So, the first hurdle which a plaintiff

claiming damages of the kind in question must surmount is to

establish that he is suffering, not merely grief, distress or any

other normal emotion, but a positive psychiatric illness.

30

Referring to this distinction, Lord Hoffmann stated in White :

Current medical opinion suggests that this may be a

somewhat arbitrary distinction; the limits of normal reaction

to stressful events are wide and debatable, while feelings of

terror and grief may have as devastating an effect upon

people’s lives as the “pain and suffering” consequent upon

physical injury, for which damages are regularly awarded.

31

However, as the Restatement (Third) specifically acknowledges

that arbitrary lines are being drawn in this area, the criticism may

be thought not to have the same force in this context. Furthermore,

  1. McLoughlin v. O’Brian, [1983] 1 A.C. 410, 431 (H.L.) (appeal taken from Eng.).
  2. Id. This passage was quoted recently by Lord Justice Stanley Burnton in Hussain v. Chief Constable of West Mercia Constabulary , [2008] EWCA (Civ) 1025, where his Lordship thought that the requirement of a recognizable psychiatric illness in negligence was also necessary for distress to constitute “material damage” in the tort of misfeasance in public office. Compare, however, the judgment of Lord Justice Maurice Kay, who interpreted this passage from Lord Bridge’s judgment as intended to exclude “‘normal human emotions,’ not significantly abnormal manifestations of non-physical sequelae.” Id. at [20]. Lord Justice Maurice Kay did not wish to exclude a claim in the tort of misfeasance in public office by “a claimant who has the robustness to avert recognized psychiatric illness but who nevertheless foreseeably suffers a grievous non-physical reaction as a consequence of the misfeasance.” Id. The third member of the Court of Appeal expressed no final view on the matter, as the facts did not so require. A claimant in the position envisaged by Lord Justice Maurice Kay would be excluded in a negligence suit under English law but not under the Restatement (Third) ’s proposals.
  3. White v. Chief Constable of S. Yorkshire Police, [1999] 2 A.C. 455, 501 (H.L.) (appeal taken from Eng.); see Harvey Teff, Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries , 57 C AMBRIDGE L.J. 91, 103 (1998) (Eng.); Harvey Teff, Liability for Psychiatric Illness: Advancing Cautiously , 61 M.L.R. 849, 851 (1998) (U.K.).

2009] A VIEW FROM ENGLAND 1183

had been subjected to exposure to asbestos and had developed

pleural plaques. The House of Lords held that this did not qualify

as physical injury.

37

However, the presence of pleural plaques did

indicate exposure to asbestos and the risk of illness in the future,

and in one of the cases before the House, the claimant had suffered

from a psychiatric illness as a consequence of being so informed

after an X-ray many years after the exposure.

38

The claimant had

been negligently exposed to the risk of physical illness by the

defendant and consequently endeavored to avail himself of the Page

v. Smith doctrine.

39

This was, however, unsuccessful, as that case

was distinguished on two linked grounds: that any future illness

would not be the immediate result of the exposure and also that it

came about as the result of information received after the X-ray.

40

However, the status of the ruling in Page— that it was enough

for a psychiatric illness claim that personal injuries were reasonably

foreseeable—received further discussion in Rothwell. Although Lord

Hoffmann did not think that the House should depart from Page

when confined to a foreseeable event that has caused physical harm,

two of his brethren raised doubts about the decision.

41

Lord Hope

referred to the argument that psychiatric injury itself should have to

be reasonably foreseeable as “attractive,” but did not need to decide

the matter.

42

Lord Mance, seeing force in some of the criticisms that

had been raised, left open the correctness of the Page ruling for

decision on another occasion;

43

indeed, his Lordship maintained this

position, along with Lord Neuberger, in the later case of Corr v. IBC

Vehicles Ltd.

44

Lord Walker, on the other hand, referred to it as

providing a “much simpler” test for judges in this area

45

(although it

would seem that Lord Mance would not agree

46

). There is, therefore,

a chance that English law may change and require reasonable

foresight of psychiatric illness even where personal injury is

threatened. Nevertheless, Lord Walker’s point in Corr in favor of

the Page ruling, if accepted, might have greater weight in the

United States, where bright-line rules are sought.

although one that I endorse if necessary, is not, I think, particularly happy. Rothwell , [2008] A.C. at 315.

  1. See generally Rothwell , [2008] A.C. 281.
  2. Id. at 293–94.
  3. Id. at 295–96, 301, 309, 312–13, 315.
  4. Id. at 296, 301–02, 309, 313, 315.
  5. Id. at 296, 301, 315.
  6. Id. at 301.
  7. Id. at 315.
  8. Corr v. IBC Vehicles Ltd., [2008] UKHL 13, [2008] A.C. 884 (appeal taken from Eng.).
  9. Id. at 911–12. 46_. Rothwell_ , [2008] A.C. at 315.

1184 WAKE FOREST LAW REVIEW [Vol. 44

c. The “Specified Categories of Activities, Undertakings, or

Relationships” Inclusion. It is envisaged that the “telegraph” and

“corpse” cases

47

would be accommodated by this provision. However,

this category is not restricted to those two types of cases, and one

interesting question is what particular relationships will be

encompassed. There is clearly the possibility of growth.

A similar “relationship” idea can be found in the English case

law, although without a specific restriction to situations where

psychiatric illness is “especially likely.” In fact, one could argue that

cases that do not involve the claimant suffering psychiatric illness

solely from witnessing injury caused negligently to another (cases

that are subject to restrictive criteria

48

) fall under this heading and

turn on the particular relationship between the claimant and the

defendant.

49

Thus, for example, a duty of care encompassing

psychiatric illness may be owed by a solicitor to a client

50

and by a

prison officer to a prisoner.

51

One important area that fits here and

that has developed in recent times in England involves cases

brought by employees against their employer alleging negligence in

relation to stress at work.

52

The prevalence of workmens’

compensation schemes in the United States, however, renders this

an unlikely point of comparison within the tort of negligence.

53

  1. See D AN B. D OBBS, T HE L AW OF T ORTS § 308, at 835–38 (2000). For an English case on a corpse, see Owens v. Liverpool Corp. , [1939] 1 K.B. 394, but note the comments of Lord Oliver in Alcock v. Chief Constable of South Yorkshire Police , [1992] 1 A.C. 310, 412 (H.L.) (appeal taken from Eng.).
  2. See infra , pp. 1188–89.
  3. See Butchart v. Home Office, [2006] EWCA (Civ) 239, [2006] 1 W.L.R. 1155 (Eng.); M ARTIN M ATTHEWS , JONATHAN M ORGAN & COLM O’CINNEIDE, H EPPLE & M ATTHEWS ’ T ORT : C ASES AND M ATERIALS 145–47 (6th ed. 2008) (by permission of Oxford University Press). 50_._ McLoughlin v. Jones, [2001] EWCA (Civ) 1743, [2002] Q.B. 1312 (Eng.). 51_. Butchart_ , [2006] EWCA (Civ) 239, [2006] 1 W.L.R. 1155; see also Leach v. Chief Constable of Gloucestershire Constabulary, [1999] 1 W.L.R. 1421 (C.A. Civ.) (Eng.); N. v. Agrawal, [1999] P.N.L.R. 939 (C.A. Civ.) (Eng.); In re Organ Retention Group Litig., [2004] EWHC (QB) 644, [2005] Q.B. 506 (Eng.); Peter Handford, Psychiatric Injury in Breach of a Relationship , 27 L EGAL S TUD. 26 (2007) (U.K.).
  4. See, e.g., Hatton v. Sutherland, [2002] EWCA (Civ) 76, [2002] I.C.R. 613, appealed sub nom Barber v. Somerset County Council, [2004] UKHL 13, [2004] I.C.R. 457; see also M ULLANY & H ANDFORD, supra note 1, at 539–72; T EFF, supra note 1, at 161–65. But see Dickins v. O2 PLC, [2008] EWCA (Civ) 1144, [2009] I.R.L.R. 58, [46].
  5. One American case involving an employee is mentioned in the Reporters’ Note, but, as is acknowledged there, it is an intentional emotional distress case. See R ESTATEMENT (T HIRD ) OF T ORTS : L IAB. FOR P HYSICAL & E MOTIONAL H ARM § 46 reporters’ note cmt. f (Tentative Draft No. 5, 2007) (citing Pratt v. Brown Mach. Co., 855 F.2d 1225 (6th Cir. 1988)).

1186 WAKE FOREST LAW REVIEW [Vol. 44

Alcock , Lord Oliver inclined to this opinion,

62

and the matter was so

decided by the High Court in Greatorex v. Greatorex.

63

In this case,

Mr. Justice Cazalet accepted that there was no binding authority on

the point but took the view that the weight of Commonwealth

authority was against a duty of care being owed by a person who

negligently injured himself to someone who suffered nervous shock

from witnessing the event.

64

His Lordship went on to decide that, on

policy grounds, no duty of care was owed, even if the claimant

fulfilled the Alcock criteria for secondary victims to recover.

65

One

factor was the restriction on a person’s freedom of action that any

such duty would impose; however, of more weight for the judge was

the fact that the Alcock criteria meant that a claimant would

normally be a member of the same family as the defendant, and that

claims in such a situation with the potential for claims of

contributory negligence could harm family relations.

66

In Mr.

Justice Cazelet’s opinion, the policy arguments outweighed the

unfairness to a joint tortfeasor to which Lord Oliver had pointed in

Alcock.

67

This is the point that in a jurisdiction, such as England,

where there is joint-and-several liability, another person who is

jointly at fault with the victim for putting the victim in peril will pay

more than his or her share of the responsibility.

68

Such a person

will be liable for all of the damages, being unable to obtain any

contribution from the victim.

69

Any solution was thought by the

judge in Greatorex to require legislative intervention.

70

Despite this

view, there must be a chance that English courts will reverse this

ruling and that the developments in other jurisdictions referred to

in Tort Liability for Psychiatric Damage might assist this

process.

71

In the United States, the case for covering these two-party

situations is not as strong, as there is less likely to be a joint-and-

  1. Alcock , [1992] 1 A.C. at 418.
  2. Greatorex v. Greatorex, [2000] 1 W.L.R. 1970 (Q.B.) (Eng.). See generally Basil Markesinis, Foreign Law Inspiring National Law: Lessons from Greatorex v. Greatorex, 61 C AMBRIDGE L.J. 386 (2002) (Eng.).
  3. Greatorex , [2000] 1 W.L.R. at 1982. But see M ULLANY & H ANDFORD, supra note 1, at 455–70.
  4. Greatorex , [2000] 1 W.L.R. at 1983–87.
  5. Id. at 1984–86.
  6. Id. at 1986.
  7. Id.
  8. Id.
  9. See, e.g. , Congenital Disabilities (Civil Liability) Act, 1976, c. 28, § 1(7) (Eng.).
  10. See supra note 1. The (English) Law Commission had been in favor of allowing the possibility of recovery when the defendant had injured himself, but, recognizing the restriction this would place on self-determination, has also recommended that the court should be able to deny a duty of care where it was not just and reasonable to impose one because of the defendant’s exercise of a choice to put himself or herself in danger (for example, by participating in a dangerous sport). See T HE L AW C OMM ’ N, supra note 7, ¶¶ 5.34–5.43.

2009] A VIEW FROM ENGLAND 1187

several-liability regime in operation.

72

It should also be

acknowledged that insofar as any interfamilial immunities still exist

(they are not, in general, found in English law

73

), those jurisdictions

adopting them might be attracted by the reasoning in Greatorex.

c. Serious Emotional Disturbance and Property Damage. So

far as serious emotional disturbance in itself is concerned, the same

comments apply here as above in relation to section 46. Serious

emotional disturbance suffered as a result of witnessing damage to

property (for example, a pet) would not be caught by the

Restatement (Third).

74

English law may be more generous if a

recognizable psychiatric illness results. In Attia v. British Gas Plc ,

75

the defendants admitted that their employees had negligently

caused a fire at the claimant’s house. The claimant alleged that she

had suffered nervous shock by virtue of seeing her home and its

contents on fire, but she did not allege that she feared for anyone

else’s safety.

76

The case raised as a preliminary issue whether such

a claim could, as a matter of law, successfully be made, a question to

which the Court of Appeal gave an affirmative answer.

77

However,

the judgments of both Lord Justice Dillon and Lord Justice Woolf

stressed the fact that a duty of care was already owed to the

claimant not to start a fire.

78

Lord Justice Bingham agreed that the

claim should not be struck out as a matter of law but seemed less

influenced by a duty of care already being owed to the claimant.

79

It

might at first sight seem that a satisfactory solution could be found

by adapting the Restatement (Third) ’s proposed criteria

80

by, for

example, requiring a legal interest in the property rather than a

close family link and requiring serious injury to property rather

than serious bodily injury. However, the problem would appear to

be that, in the absence of any reasonable-foresight test—which

  1. See DOBBS , supra note 46, § 390, at 1077–91.
  2. Though see the position of a mother under the Congenital Disabilities (Civil Liability) Act of 1976. On the other hand, Mr. Justice Cazalet did acknowledge that in cases of physical damage, family members can sue each other in England. See Greatorex , [2000] 1 W.L.R. at 1985.
  3. R ESTATEMENT (T HIRD ) OF T ORTS : L IAB. FOR P HYSICAL & E MOTIONAL H ARM § 46 cmts. i–j (Tentative Draft No. 5, 2007).
  4. Attia v. British Gas Plc, [1988] Q.B. 304 (C.A. Civ.) (Eng.); see also Owens v. Liverpool Corporation , [1939] 1 K.B. 394 (C.A. Civ.) (Eng.). But note the comments of Lord Oliver in Alcock v. Chief Constable of South Yorkshire Police , [1992] 1 A.C. 310, 412 (H.L.) (appeal taken from Eng.). Consider further the very recent case of Yearworth v. North Bristol NHS Trust , [2009] EWCA (Civ) 37, [2009] 3 W.L.R. 118 (Eng.), where the decision was based on bailment. It can perhaps, therefore, best be seen as a “relationship” case, especially as it involved information being communicated after the event.
  5. Attia , [1988] Q.B. at 318.
  6. Id. at 312, 317, 320–21.
  7. Id. at 312, 314–15, 317.
  8. Id. at 317–21.
  9. See supra note 54 and accompanying text.

2009] A VIEW FROM ENGLAND 1189

parent), it is a rebuttable presumption.

89

The Restatement (Third) ’s

position might be thought to have the advantage of avoiding a

potentially invidious inquiry into the nature of the relationships,

unless perhaps it is relevant to the assessment of the measure of

damages.

Section 47 does not allow the mere bystander, i.e., the witness

of an event (even a horrific one), to bring a claim in the absence of a

relationship with a victim.

90

Certain dicta in Alcock had expressly

left this point open in English law.

91

The Court of Appeal, however,

in McFarlane v. E.E. Caledonia Ltd. surprisingly regarded the

possibility of such bystander recovery as inconsistent with the

requirement for a loving relationship in Alcock and rejected any

such claim.

92

This view against mere bystander recovery has been

met with approval.

93

On this later approach, there is a coincidence

of view.

2. Additional Considerations

a. Participants. This idea can be found in Lord Oliver’s

speech in Alcock. His Lordship distinguished between “cases in

which the injured plaintiff was involved, either mediately or

immediately, as a participant, and those in which the plaintiff was

no more than the passive and unwilling witness of injury caused to

others.”

94

The former were classed as “primary” victims and the

latter were “secondary” victims, and the Alcock criteria were only

applicable to the latter.

95

A person may, of course, be involved in the

events associated with an accident but not be physically endangered

or be a family member. For example, in Dooley v. Cammell Laird &

Co. ,

96

the claimant was operating a crane when a piece of rope

snapped and the load being carried fell into the hold of a ship where

people were working. The claimant recovered damages for what was

termed in those days “nervous shock” that was suffered as a result

of fear for the safety of his fellow workmen, whom he could not

actually see from his position on the crane.

97

This case, and two

  1. Alcock , [1992] 1 A.C. at 397, 403.
  2. R ESTATEMENT (T HIRD ) OF T ORTS : L IAB. FOR P HYSICAL & E MOTIONAL H ARM § 47 cmt. e (Tentative Draft No. 5, 2007).
  3. See Alcock , [1992] 1 A.C. at 397, 403, 416.
  4. McFarlane v. E.E. Caledonia Ltd., [1995] 1 W.L.R. 366 (Q.B.) (Eng.).
  5. See White v. Chief Constable of S. Yorkshire Police, [1999] 2 A.C. 455, 500 (H.L.) (appeal taken from Eng.).
  6. Alcock , [1992] 1 A.C. at 407.
  7. Id. at 408, 411–12.
  8. Dooley v. Cammell Laird & Co., [1951] 1 Lloyd’s List L.R. 271 (Eng.). The other cases often cited in this regard are Galt v. British Railways Board , (1983) 133 N.L.J. 870 (Q.B.) (Eng.), and Wigg v. British Railways Board , (1986) 136 N.L.J. 446 (Q.B.) (Eng.).
  9. On whether it matters if the apprehended victim is not in fact injured, see supra p. 1185.

1190 WAKE FOREST LAW REVIEW [Vol. 44

others like it (in legal terms) were treated in Alcock by Lord Oliver

as involving “unwilling participant[s]” who were within the primary,

as opposed to secondary, victim category.

98

This primary/secondary victim distinction in general has proved

to be difficult and controversial, and it cannot be explored in detail

here.

99

There is later authority that the category of “primary”

victims only includes those who were reasonably foreseeably

physically endangered by the defendant’s negligence,

100

and on this

view not everybody in the “participant” category of cases would be

included in this primary status. In White , Lord Hoffmann’s

approach to these cases was that “there may be grounds for treating

such a rare category of case as exceptional and exempt from the

Alcock control mechanisms.”

101

Furthermore, subsequent case law

does lend a measure of support to the claims of such people to be

classed as primary victims. In W. v. Essex County Council

102

the

House of Lords thought that it was arguable

103

that the parents in

that case might be regarded as primary victims (and hence avoid the

Alcock criteria) on this ground since they had invited the foster child

into their home. One safeguard is that where the psychiatric illness

results from the belief that the claimant may have caused the

victim’s injuries, this must be a reasonable one,

104

although

according to Salter v. UB Frozen & Chilled Foods Ltd. ,

105

there is no

need for an active participant to feel any sense of blame for the

accident.

106

This is a category of claimant which merits

consideration for inclusion within the fold of the Restatement

(Third). It may be a more satisfactory place to draw the admittedly

arbitrary line, although it might be a question whether such an

extension should be associated with section 47 or section 46.

b. Rescuers. Linked to the above is the category of rescuers.

Their position was discussed in White.

107

Prior to that decision, the

view seemed to be that reasonable foresight of psychiatric illness

  1. Alcock , [1992] 1 A.C. at 408.
  2. See M ULLANY & H ANDFORD, supra note 1, 153–82; T EFF, supra note 1, at 75–77. 100_._ White v. Chief Constable of S. Yorkshire Police, [1999] 2 A.C. 455, 496– 97 (H.L.) (appeal taken from Eng.); Page v. Smith, [1996] A.C. 155, 184 (H.L.) (appeal taken from Eng.).
  3. White , [1999] 2 A.C. at 508. His Lordship there noted that Lord Oliver’s treatment had been adopted by Lord Hope in Robertson v. Forth Road Bridge Joint Board , [1995] I.R.L.R. 251 (Sess.) (Scot.).
  4. W. v. Essex County Council, [2001] 2 A.C. 592 (H.L.) (appeal taken from Eng.).
  5. Id. at 602. 104_. See_ Monk v. PC Harrington Ltd., [2008] EWHC (QB) 1879 (Eng.).
  6. Salter v. UB Frozen & Chilled Foods Ltd., [2003] S.L.T. 1011 (Scot.).
  7. Id. at 1019; see also Gregg v. Ashbrae Ltd. [2005] NIQB 37 (N. Ir.).
  8. White v. Chief Constable of S. Yorkshire Police, [1999] 2 A.C. 455, 464 (H.L.) (appeal taken from Eng.).

1192 WAKE FOREST LAW REVIEW [Vol. 44

there is agreement on these difficult questions of balance, however,

the extent to which they are achievable within the job description

for the Restatement (Third) is a matter for those better qualified

than this writer to judge.

the judge under the Supreme Court decision in Daubert v. Merrill Dow Pharmaceuticals , 509 U.S. 579, 593 (1993), needs to be borne in mind. Furthermore, in the Reporters’ Note to section 45, which deals with intentional infliction of emotional disturbance, it is stated that “[t]he court... plays a more substantial screening role on the questions of extreme and outrageous conduct and the severity of the harm... than on other questions of fact.” R ESTATEMENT (T HIRD ) OF T ORTS : L IAB. FOR P HYSICAL & E MOTIONAL H ARM § 45 reporters’ note cmt. f (Tentative Draft No. 5, 2007).