The above statement sums up the current state of the law in regards to claims for mental injury that may or may not amount to the notion of nervous shock. Whether or not a secondary victim; that is, a person who experienced mental suffering but was not physically injured or placed in physical danger by the defendant’s negligence, is able to claim for compensation depends on whether or not they satisfy the tests set out by the common law. That is, whether or not the incident was reasonably foreseeable, the proximity of the plaintiff to the accident, the relational proximity between the plaintiff and the primary victim, the means by which the mental suffering is caused and the degree of mental distress suffered. This essay will discuss these restrictions on recovery for the secondary victim by referring to several leading cases within this jurisdiction. It will then attempt to provide an argument as to what the preferred approach in Australian law should be in light of van Soest.

This was the New Zealand Court of Appeal’s first consideration of the substance of the right of recovery for secondary victims, and not surprisingly, the majority favoured a limited approach to recovery as suggested by English and Australian decisions.

The facts of the case as delivered by Blanchard JJ state that:

This comment by Justice Blanchard shows the Court of Appeal’s position in regards to whether secondary victims should be able to recover for damages even if their injury does not amount to the legal notion of nervous shock. The Court’s main concern was with whether or not the injury suffered by the plaintiff’s satisfied the medical definition of a psychiatric or psychological illness. The Court concluded that it was not persuaded that they should depart from previous precedent set in England and Australia, that a claim by a secondary victim for mental suffering will not lie unless the effect on the mind of the secondary victim has been manifested itself in a recognisable psychiatric illness.

There was however, a powerful dissent by Thomas J. In his view, a more principled approach to recovery should be recognised, based on the reasonable foreseeability of mental injury. He describes the law as "indefensible" and that the decision of the majority was "arbitrary and illogical". He proposed two central reforms to make the law more "coherent and just"; the rule that recovery should be allowed only where the plaintiff has suffered a recognisable psychiatric illness should be relaxed to include any injury "plainly outside the range of ordinary human experience", and an abandonment of all rules relating to geographical, temporal and relational proximity.

Justice Thomas then goes on to dismiss the policy considerations that the Courts have used to justify their conservative approach to this area of law; with reference to the ‘floodgates’ argument, Justice Thomas comments: "In my view, the fear that the floodgates will open and flood the Courts is an exaggerated fear. And it is certainly overused."

In his belief, liability should be determined solely by reference to the reasonable foreseeability of psychiatric injury. He proposes that a limitation already exists in the concept of reasonable foreseeability as a negligent wrongdoer is not liable for a consequence that is not foreseeable. Thomas J also suggests that the scope of mental and emotional harm for which relief could be regarded could be ‘negatively framed’. That is, damages may be recovered for mental and emotional harm suffered by a plaintiff unless that mental and emotional suffering is of the kind which is part of human experience as opposed to the current condition that all compensation is denied unless the harm suffered amounts to ‘nervous shock’.

In summary, Justice Thomas believes that he law could be greatly improved if the Courts were to hold that the sole test for recovery for mental and emotional harm in this area of law is the reasonable foreseeability of that harm. And within that framework the rule requiring the plaintiff to be suffering from a recognisable psychiatric illness can be relaxed so as to become a general principle, but one which does not preclude plaintiffs from recovering if their mental suffering is their suffering is plainly outside the range of ordinary human experience.

Similarly to van Soest, this case dealt with the distinction between psychiatric injury and normal grief. The primary judge (Urquhart DCJ) dismissed the claims on the basis that neither plaintiffs represented a distinct psychological or psychiatric injury and each had shown no more than a normal grief reaction which did not give rise to an entitlement to damages. On appeal, the majority of Gleeson CJ and Clarke JA held that the appellants had not shown that the primary judge was wrong to conclude that they had failed to establish a relevant psychological or psychiatric injury, for which alone, as distinct from ordinary grief, they could recover damages for nervous shock.

Thus, this is another case where the plaintiffs were unable to recover for damages due to the strict definition of nervous shock. The dissenting judge in this case, Kirby P makes the comment that the Court had a too narrow definition of nervous shock and in some situations, it needs to be expanded to achieve justice. He also perceives the current law as out-of-date and that it needs to move forward. Justice Kirby’s reasoning as well as the reasoning of the majority will now be discussed.

The judgement of Gleeson CJ was nearly all devoted to establishing the fact that the appellants had not suffered a psychiatric illness or injury. He referred to expert evident which described the appellants’ condition as "within the bounds of a normal reaction to grief". The judge then went on to say that the trial judge’s conclusion that either appellant had suffered a recognisable psychiatric illness was in error and thus no compensation could be awarded. He stated that there an onus on the appellants of proving that they had suffered nervous shock, and that they failed to discharge this onus, and thus could not recover for damages.

Similarly, Clarke JA said in his judgement, "the only issue contested was whether the appellants, or either of them, had established that he or she had suffered from compensable nervous shock." His Honour comments:

The decision the tribunal makes will of course be dependant on how strict it views the law of recovery with regards to the narrowly defined notions of nervous shock. Most judges, like the majority in this case and in van Soest will follow previous precedent and rule that unless the plaintiff has suffered a medically recognised psychiatric illness, they will not be able to recover for damages. However, dissents such as the one from Thomas J give new thought to this area; he felt that in some circumstances where the plaintiff’s grief and suffering were well beyond the normal reactions for a person, but did not amount to ‘nervous shock’, that they should not be immediately barred from recovering for damages. Thus, if Justice Thomas’ ideas were put into this case, where the judge accepts that "Steven suffered from significant grief which extended over a lengthy period" and "[Suzanne] suffered from a grief reaction ‘greater than would have normally be expected’", then perhaps with the expanded scope of recovery as suggested by Justice Thomas, a different decision may have been reached in the interests of justice.

This is the stance that Kirby P adopts in his dissenting judgement. Like Thomas J, Justice Kirby dismisses the ‘limiting factors’ that have been put in place to prevent the opening of the ‘floodgates’. He is also an advocate of having reasonable foreseeability as the main test for liability. The Judge also wants an expansion in the proximity test in order to make it less demanding; he rejects the idea that the plaintiff must have perceived directly from active, physical proximity of the tort, or to its immediate aftermath. He then quotes "once a breach of duty is established the difference between seeing and hearing is immaterial. Hearing can be just as direct a consequence as seeing." Thus, following this idea, hearing by telephone, or by later oral message can, in today’s society, it would be just as foreseeable and just as directly related to the wrong sued upon as if the vulnerable observer had received the shocking perception by his or her own eyes and ears at the moment of the relevant wrong.

Kirby P is critical of the courts’ requirement for damages being a proof of a recognisable psychiatric illness; he feels that if this is the case then the catalyst or initial reaction that triggers or leads to this illness should not matter. That is, if a person suffers a recognisable psychiatric illness, then the requirement of ‘initial shock’ should not need to exist. The judge also feels that "nineteenth century notions of psychological illness and an abiding suspicious of such claims lurk in the cases to forbid recovery where prolonged grief is shown, extending beyond the norm deemed acceptable our society." He believes that because the Australian community has changed significantly since these principles were put into place, that this area needs reconsideration as different cultural and societal attitudes have changed with regards to profound grief and thus current definitions of "abnormal grief" derived from England, may work an injustice upon Australian litigants.

Justice Kirby concludes by saying that Urquhart DCJ, applied too narrow a view of psychiatric illness and that the dismissal of the claim for nervous shock "portrays too much of the old reluctance of the common law to acknowledge serious mental dislocation as a proper subject matter for compensation." He mentions that there is little more the plaintiff could do to recover for the distress suffered. They were the children of the deceased. Each was very close to him. Each was at a vulnerable age at the time of his death and each suffered depression and mental dislocation. And in each case this went, to some extent, beyond the ordinary expectations of "normal" grieving.

Thus, Justice Kirby’s stance is that when relational proximity is established, and consequentially, reasonable foreseeability, and that the suffering of the plaintiffs amounted to more than just ‘normal’ grieving, damages, though not large, should be awarded. He feels the current definition of ‘nervous shock’ is out-of-date and needs to be reviewed to reflect today’s society’s culture. His stance, as well as Thomas J’s both attempt to extend the scope in which damages can be recovered by a secondary victim when their conditions do not amount to nervous shock. Though their arguments are sympathetic to the victim and seem to suggest they favour an approach that would see more people compensated, it seems too idealistic. The current law is clearly defined; if the plaintiff did not suffer a recognisable psychiatric illness induced by shock, then they cannot recover for damages. However, if the approach by Kirby P and Thomas J in Coates and van Soest respectively were to be applied, then the system would in my opinion become fragmented and less clear. Not only would there be many more cases to be dealt with, all that has changed is the test for a ‘recognisable psychiatric illness’ being changed to whether or not the grief suffered was beyond ‘normal’. Thus, such an expansion in liability to the defendant and an increase in scope of recovery for the plaintiff as suggested by Justices Kirby and Thomas do not seem appropriate given such consequences.

This is one of the leading cases in England, where the tests for whether a plaintiff can recover for damages in cases of nervous shock are outlined. The Court held that a secondary victim who sustained nervous shock which resulted in psychiatric illness could only recover for damages if he satisfied both the test of reasonable foreseeability that he would be affected by psychiatric illness as a result of the consequences of the accident because of his close relationship of love and affection with the primary victim and the test of proximity in relationship to the tortfeasor in terms of physical and temporal connection between the plaintiff and the accident.

Of these factors controlling the scope of recovery, the one most open to debate is the proximity factor. Proximity is defined as the concept of a person being closely and directly affected by the incident. As earlier discussed, the dissenting judgements of Justice Kirby and Justice Thomas both wanted to tone down the strict restrictions on claims imposed by the notion of proximity. The Court in Alcock stated that there were three ‘control elements’ that operate as a limitation of the mere application of the foreseeability test. They introduce the requirement of proximity as a conditioning the duty of care. The three elements are described as (i) the class of persons whose claims should be recognised – that is the degree of relational proximity by the secondary victim to the primary victim. (ii) The proximity of the plaintiff to the accident – that the secondary victim has to be close to the accident both in time and space, tho direct and immediate sight or hearing of the accident is not required. (iii) the means by which the shock is caused – that the shock must come from the direct sensory perception of the incident, an ‘attack on the nervous system’.

Thus, Alcock sets outs the limitations that are imposed upon the plaintiff in cases with regards to mental suffering. The Court clearly notes that "even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock" and "mere mental suffering, although reasonably foreseeable, if not accompanied by physical injury, is not a basis for claims". The approach adopted by this court is in vast contrast to the stances of Justice Kirby and Justice Thomas whose main argument was that the Courts should loosen the restrictions, and in Thomas J’s case, he suggested abandoning the test of foreseeability altogether. In my opinion, the Court’s decision in Alcock was not too harsh and was in the interests of justice and public policy. It would not be in the interests of the community if the tests for recovery were weakened nor is it required at this point in time.

The current strict tests of foreseeability and proximity mean that plaintiffs must truly be suffering a psychiatric illness as well as satisfying the conditions that they deserve compensation in order to get it. If the rules were to be relaxed, there would be many more secondary victims who have suffered some degree of mental distress applying for recovery of damages. This would not be in the best interests of the legal system or the community as it exposes everyone to potentially limitless liability. Who is to say that the next tort one commits may result in them being sued by a secondary victim who was not at all proximate to the tort but happened to suffer some degree of grief? This potential liability on the general public is just too much for any relaxation of the current tests for recovery.

As the Court concedes:

Agreeing with the Court, I see no need for a change in current the Australian approach, which is relatively similar to the approach adopted by the Court in the present case. It seems that the current system has enough control mechanisms to exclude cases which do not amount to a need for compensation but also has enough leeway to compensate those who are in need, ie secondary victims with close relation proximity to the primary victim who have suffered a recognisable psychiatric illness as a result of the shocking insight they received as to the initial tortious wrong.

As discussed above, I see the current Australian approach as being sufficient in dealing with cases involving secondary victims who have suffered a mental illness but where it does not amount to the definition of nervous shock.

Firstly, the idea that secondary victims should be able to recover for mere grief or minor mental sufferings should be able to recover for damages given reasonable foreseeability is a rather poor one. Justice Thomas proposes that there is a self-controlling element in reasonable foreseeability that a defendant is not liable for a tortious wrong unless the result was ‘reasonably foreseeable’. This is fine in the current scenario where the plaintiff must have suffered a recognisable psychiatric illness in order to recover for damages. Thus, the defendant must have foreseen this illness for him to be liable. However, if the Courts started awarding damages for ‘mere grief’, the liability to defendants would be too great; as one could argue that the defendant would always be able to foresee at least some grief in his/her tortious act.

In conclusion, the van Soest case provided some insight as to the modern day approach to the law with regards to nervous shock. I agree with the majority’s conclusion that simply because there was no recognisable psychiatric illness suffered, the defendants cannot claim for damages. Although this method sounds cruel, it has worked effectively for many years and there is yet no public policy to change it. Though Thomas J’s dissent gave us a look at what the law could be, that is, the sole test for recovery would be reasonably foreseeability, but as argued above, this approach would not be in the interests of society.

However, having said that, there are areas in the law which should be looked at in the future should any need for change arises. Namely the requirement that the injury must be acquired through immediate ‘shock’ and the requirement of physical proximity to the accident. As Deane J quotes in Jaensch v Coffey:

"The most important explanation of nervous shock resulting from injury to another is the existence of a close, constructive relationship with that person and that it is largely immaterial whether the close relative is at the scene of the accident or how he or she learns of it."

Thus, it can be said that the current state of law is sufficient with today’s society’s requirements and is in the interests of public policy whilst still doing enough in the interests of justice and therefore, I see no need for a change in the approach of Australian courts in light of van Soest.