Proximity, Psychiatric Injury and the Primary/secondary Tortfeasor Dichotomy: Rethinking Liability for Nervous Shock in the Information Age

By Lim, Eugene C. | Nottingham Law Journal, Annual 2014 | Go to article overview

Proximity, Psychiatric Injury and the Primary/secondary Tortfeasor Dichotomy: Rethinking Liability for Nervous Shock in the Information Age


Lim, Eugene C., Nottingham Law Journal


INTRODUCTION

Digital technology has revolutionized the way human beings communicate. It is now possible for us to see and to interact with others, to be shocked, saddened, thrilled, tickled, amused, enthralled and even traumatized by scenes or images sent from many miles away. The potential to view and perceive events in other parts of the world through the screen of a mobile communication device or other audio-visual equipment has melted away the distance between individuals, rendering physical barriers less of an obstacle to human communication.

This article seeks to examine the impact of modern communication technologies on the law relating to psychiatric injury (1) in the United Kingdom, and to critically evaluate the compatibility of existing case law with the new modalities of communication in the digital age. It will consider whether the traditional restrictions placed on the scope of negligence liability for nervous shock might prevent deserving claimants from recovering compensation for severe emotional harm arising from the viewing of transmitted video footage. It will also critically evaluate the extent to which the bounds of negligence liability ought to be expanded in this area.

Furnishing proof of clinically recognized psychiatric injury has always been more challenging than adducing evidence of physical injury. (2) While the latter might take the form of an X-Ray image of a broken bone, the former often requires expert medical testimony from a trained psychiatrist based on observation, interaction with the patient and other clinical tests. (3) Mental conditions such as post-traumatic stress disorder and chronic fatigue syndrome are arguably easier to "feign" than physical injuries with objectively observable characteristics, such as bruises and lacerations. (4) In light of these concerns, the law of negligence relating to nervous shock has traditionally restricted liability and recovery to claimants in specifically enumerated categories. (5) Recovery in psychiatric injury cases is generally confined to primary victims and secondary victims. (6) While primary victims are physically endangered in some manner, with physical injury being reasonably foreseeable, secondary victims suffer shock not from their own personal involvement in the accident but from their perception of an accident, or its immediate aftermath, that had injured or killed other individuals with whom they had a close tie of affection. (7)

In most of these cases, the claimant must either be physically present at the site of an accident or disaster, or physically present at its immediate aftermath, in order to stand a plausible chance at recovery. (8) This criterion of physical and temporal proximity appears to be a key element that animates much of the jurisprudence on nervous shock; a criterion that is often viewed as a sine qua non for a successful tort action for psychiatric damage. (9)

The astounding growth of modern digital technology has, however, redefined the boundaries of the human sensory experience. It is now possible, through the use of communication devices that have become ubiquitous, to view, perceive and experience events (occurring elsewhere) in real time. Some of these technologies are beginning to offer the potential of real-time "immersion" experiences, (10) which allow users to perceive themselves as having been transported to another environment, either real (depicting actual natural or urban landscapes) or simulated (such as a fantasy world designed by software programmers).

This article seeks to challenge the viability of existing restrictions against recovery in nervous shock cases, in light of these technological developments. It will focus on two issues relating to psychiatric injury arising from the digital transmission of audio-visual content in the information age. First, it will consider whether the requirement of "direct, unaided perception" of a tragic event or its immediate aftermath should continue to be a criterion for a successful claim by a secondary victim who has suffered nervous shock. …

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