The law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify. Discuss


The above statement is extracted from the case proceedings in ‘White and others v Chief Constable of South Yorkshire’ on appeal from Frost v Chief Constable of South Yorkshire Police. These words were uttered by Lord Steyn in the above named case. This essay examines the above statement visa vie the 1999 House of Lords’ ruling on the same under the auspices of common law. It examines as well the procedure for legal redress in event of pure psychiatric harm and its subsequent limitations and control mechanisms. Citing numerous case laws and scholarly works, the essay concurs that the recovery of damages for pure psychiatric infliction is a complex legal issue.

The legal suit – White v Chief Constable of South Yorkshire’

‘White v Chief Constable of South Yorkshire’ was a psychiatric harm appeal that followed the infamous Hillsborough football stadium fatality of 1989 that saw 96 people dead, 700 injured and lots others emotionally scarred for life.

The police officers on duty at the time attempted to sue the Chief Constable for pure psychiatric injuries on account of vicarious liability. The House of Lords dismissed the claims and upheld the decision of the hitherto active ruling: Alcock v Chief Constable of the South Yorkshire Police

[1992] 1 A.C. 310 . The decision as upheld in that case was that bystanders at disasters are not entitled to compensation regardless of whether they suffer foreseeable mental distress (Eason, 2009).

Pure psychiatric harm

In legal discourse, pure psychiatric harm (neurotic shock) refers to mental distress inflicted on someone by either intentional or negligent acts or omissions of others . Any person who, without due cause, imposes foreseeable emotional distress on another is held liable for any psychiatric harm that ensues (Mullany & Handford, 1993).

Conditions for liability

The tort of’ intentional infliction of emotional distresses’ derives from Wilkinson v Downton [1897] 2QB 669 and is contingent upon certain considerations . First, the existence of duty of care between the perpetrator and the plaintiff has to be established. Then, it must be established under the estimation of a right thinking person that the defendant’s acts or omissions caused a breach of the duty of care. As a result, the plaintiff must have suffered mental distress; there has to be a causal link between the defendant’s acts and the plaintiff’s psychiatric harm.

It is imperative to note that under common law, the motive or intention of the defendant is irrelevant. The defendant is liable for acts and omissions done in good intentions in the event that they inflicted psychiatric injury on the plaintiff. However, common law does not recognise compensation for psychiatric harm regardless of whether the plaintiff suffered foreseeable mental shock. Compensation for psychiatric harm is a morally upright consideration but as far as common law goes, there are difficulties in categorising harm and the subsequent compensation.

In ‘White v Chief Constable of South Yorkshire,’ Lord Steyn held that the claims of the police officers were rightly denied by Waller J in the House of Lords . The negligence of these officers in allowing overcrowding of two spectator pens was indeed what caused the disaster. The Chief Constable was vicariously liable for the negligence of the officers. The officers, however, were not subject to redress for any emotional distress caused by their negligence. Lord Steyn explained that common law disregards reasonable foreseeability of harm as a sound basis for compensation in respect to mental injury. (Morgan, J., 2003)

Similarly, common law merely recognised vicarious liability of the Chief Constable to the extent that the police acted in the line of duty. The constable was however not liable for emotional distress resulting from the policemen’s philanthropic acts over and above their designated duties. The complexity at this point is to determine the extent to which the officers acted in line of duty visa vie the extent to which they acted philanthropically. It is virtually impossible to create that distinction.

Given the Hillsborough disaster context, compensation of the officers would contradict the law as stipulated in the Alcock 1992 judicial precedent. Moreover, it would imply that rescuers, first aiders and others who risked their fate to offer humanitarian help are lesser parties.

Physical and psychiatric harm

The first difficulty in this tort arises from the categorisation of harm as either physical or psychiatric (or both) . As a result of their rescue acts in the tragedy, the four policemen sustained bodily injury as well as suffered from post traumatic stress disorder. It could not be determined quantitatively the amount of psychiatric distress inflicted on the policemen. The extent to which this injury was directly linked to the disaster couldn’t be determined either. (Mullany & Handford, 1993)

Certain statutory requirements come at play in the distinction of physical from mental harm. Section 109(2) of the Criminal Justice Act 1988 dubbed ‘Criminal Injuries Compensation Scheme’ considers psychiatric harm as criminal injury under some conditions; (a) the plaintiff must have been put in fear of immediate physical injury to himself or another; or (b) they must have been present (proximity) when another person sustained a criminal injury other than harm to his mental condition .

Yet another intricacy arises in the case of psychiatric damage upon learning of another person’s injury or death. According to the House of Lords (1992), a plaintiff who suffers from a reasonably foreseeable mental harm as such must have a close bond or love with the culprit in order to seek redress. The plaintiff must have also been close to the scene of the accident in time and space where they perceived the tragedy directly rather than learning from a third party.

Professor Jane Stapleton expressed the law as espoused in Alcock as inconsistent with moral considerations. In ‘Frontiers of Liability’, she wrote the essay ‘In Restraint of Tort’ she posed the following concern; “In future cases, will it not be a grotesque sight to see relatives scrabbling to prove their especial love for the deceased in order to win money damages and for the defendant to have to attack that argument?” (Stapleton, 1994)

However, Professor Stapleton’s solution to eliminate recovery in tort for psychiatric harm would be inconsistent with precedent and thus invalid to that extent. Moreover, parliament is the only body that has authority to legislate on such matters due to their special nature.

Another solution was endorsed by Mullany & Handford in ‘Tort Liability for Psychiatric Damage: The Law of Nervous Shock, 1993.’They proposed the elimination of all technical limitations regarding compensation due to psychiatric injury . This would grant bystanders and close relatives of the culprits a chance to file a suit for compensation.

However, Lord Steyn defied this course on the ground that it is inconsistent with sound policy considerations on psychiatric harm redress. The subsequent adoption of such course would lead to a large number of claims which given certain circumstances could be infeasible, to say the least. Lord Steyn’s appeal to the House of Lords was to ‘say thus far and no further’ in all that appertains to psychiatric harm redress (Mullany & Handford, 1993).

Judicial precedent

Before enactment of certain laws, judgement is done with due regard to prior court rulings on similar cases. The decision so made is referred to as judicial precedent. For instance, the ruling in White v Chief Constable of South Yorkshire was highly influenced by an earlier case on the same: Alcock v Chief Constable of the South Yorkshire Police [1992]. Lord Steyn reiterated that hitherto authoritative case laws must take precedence in a court of law before any exemptions become admissible. He reasoned that in reality, legal redress may take a rationally indefensible turn in special circumstances. After all, radical law reforms should be left to parliament.

Medical complexities

Psychiatric harm redress encounters difficulties in distinguishing acute grief from mental injury. According to Hedley, ‘Nervous Shock: Wider Still and Wider, 1997,’ mental infliction has a larger diagnostic uncertainty than cases of acute grief even if their symptoms are utterly similar . Psychiatric expertise is highly recommended for effective diagnosis of neurotic shock and hence claims for psychiatric harm are not treated at par with those of bodily harm.

Shock, anxiety and fear are considered usual reactions in distressing situation and to that effect no legal redress permissible. Common law recognises mental harm which is manifested in physical symptoms such as miscarriages. This is as a result of confidence in current medical expertise (Hedley, 1997).

Divergent medical opinions suggest that the above distinction of acute grief from mental harm is inconclusive. It is possible for shock and grief to reach the psychiatric harm threshold in the face of utterly devastating tragedies. Once this qualifies as pure psychiatric harm, it becomes subject to legal redress.

For cases such as industrial accidents, there are prospects of psychiatric harm redress and hence such claims endure till the end. However, in case there are no prospects for redress like in sporting accidents, compensation claims seldom arise.

The ruling in Page v Smith, 1996 espouses that emotional infliction based on apprehension of bodily injuries would suffice for compensation. This restricts the number of potential claimants in tort because the requirement of apprehension of bodily harm introduces a new element of proximity. There is a wide range of potential claimants for compensation in cases of pure psychiatric injury. This number ought to be checked. Restriction mechanisms are therefore devised to manage the burden of liability to avoid monetary lapses and extortions on the perpetrator. Also, the resources of managing a lot of psychiatric harm settlements would be chaotic and overburdening to the courts(Archibald, 2001).

Compensation for rescuers

What is the position of psychiatric harm redress of a rescuer at common law? Sometimes, a tort feasor may be negligent enough to create a tragic situation under the impression that people will be morally compelled to rescue potential victims. In such cases, it is well settled that that the tort feasor will be liable for any injury inflicted on the rescuers in the form of physical harm. It is prudent to note that the tort feasor is not liable to compensate a rescuer against foreseeable psychiatric harm. If this were the case, the courts would flood with people claiming compensation even for negligible assistance rendered during accidents.

In McFarlane v. E.E. Caledonian Limited [1994] , it was decided that a person is considered a rescuer after a critical assessment of the relevant facts in a particular incident. No compensation is dispensable for peripheral assistance. (McLean, 1998)


In light of the above discourse, it is quite evident that recovery of damages on account of pure psychiatric infliction is full of complexities that are difficult to rationalise. These intricacies arise as a result of the special nature of the issue. The numerous control mechanisms are devised to regulate the number of claims for compensation to avoid flooding the courts with petty affairs. However, certain bits of the law are too rigid and they ought to be reconsidered.


Alcock and others v Chief Constable of the South Yorkshire Police [1992] 1 A.C. 310 Online at

Archibald H. Throckmorton (2001) Damages for Fright, Harvard Law Review 24 Harvard L. Rev. 260

Eason, Kevin (2009). “Hillsborough: the disaster that changed football”. London: The Times

Hedley, Steve (1997). Nervous Shock: Wider Still and Wider? The Cambridge Law Journal, 56 pp 254-257

Jane Stapleton (1994) ‘Frontiers of Liability: In Restraint of Tort’ Oxford: Oxford University Press

Mullany & Handford (1993) ‘Tort Liability for Psychiatric Damage: The Law of Nervous Shock, Oxford: Oxford University Press

McLean H (1998) Negligent Regulatory Authorities and the Duty of Care 18 Oxford Journal of Legal Studies 442

Morgan J (2003) Lost Courses in the House of Lords: White v Chief Constable of South Yorkshire’ Modern Law Review 277