Psychiatric injury was defined as “a sudden assault on the nervous system” or “a sudden appreciation of a horrifying event, which violently agitates the mind”. Psychiatric illness includes all forms of mental illness, neurosis and personality change that are medically recognised. This must be differentiated from severe fear or emotional distress, grief , or sorrow which by themselves do not give rise to liability except where the fear , distress ,grief or sorrow lead to either a physical illness such as anxiety neurosis or reactive depression. Psychiatric illness may occur either as a result of deliberate act which is intentional in future or from negligence. If the act is done intentionally , the principle of Wilkinson v Downton is applicable. Until relatively recently, the tort of negligence relating to claims for psychiatric injury was very uncertain. However, in recent times, this area of law has become slightly more certain with the laying down of various guideline and criteria governing whether an individual can recover damages as a result of witnessing an event which causes them some form of psychiatric injury.
The court have been very in detail in holding that a duty of care exists in cases where the type of damage suffered by the plaintiff is one of nervous shock though the preferred expression now is “psychiatric injury or illness” .
While the decision in McLoughlin v. O'Brien appeared to usher in a new age of judicial acceptance of psychiatric illness, the modern English approach begins with the decision of Alcock v. Chief Constable of South Yorkshire. This case re-established a very strict and cautious attitude toward claims for the negligent infliction of psychiatric illness. The case was concerned with the Hillsborough Disaster. In the spring of 1989, a football match was to be played at the Hillsborough Stadium, the ground of Sheffield Wednesday Football Club. This game was televised and heard over the radio. The game came to a halt to everyone’s surprise because the press of people in the Leppings Lane pens had created such intense pressure that some spectators were becoming trapped. They were unable to move voluntarily in any direction, and were losing the ability to breathe. Spectators in Pens 3 and 4 were receiving crushing injuries from the forces being exerted on their bodies. From such injuries, 95 spectators were killed and over 400 injured. Psychiatric illness and causation were assumed for the purposes of the hearing, which centered on the scope for recovery when the plaintiff was neither a parent nor spouse of the primary victim, and on whether a means of communication other than direct, unaided perception could ground a claim.
The House of Lords held that a claim for nervous shock may succeed if firstly, it is reasonably foreseeable that the plaintiff will sustain psychiatric illness due to his close relationship of love and affection with the primary victim , and there is physical proximity between the plaintiff and the victim in terms of time and space .The nature of the relationship between the plaintiff and the victim is also an important factor .
In the present case , the House restricted the categories of plaintiffs who could make a claim for psychiatric illness. The House made a distinction between a primary and secondary victims. A primary victim was defined to be a person who participates or is directly involved in an accident. A secondary victim is one who is a passive and unwilling witness of injury caused to the others. If a person is a secondary victim they will have to prove close ties of love and affection with the primary victim to succeed in their claim. Hence , the court held that one of the plaintiffs had failed to prove that he did enjoy a close emotional tie with his two deceased brothers , and his claim was therefore denied .
The court further held that the shock must be caused by actual sight or sound of the accident or its immediate aftermath. The House limited the aftermath doctrine to the immediate aftermath. It did not include identification of the body of the victim at the mortuary. Both mothers in McLoughlin and Jaensch succeeded because the shock they suffered was fairly contemporaneous. Two hours elapsed from the time of the accident when the plaintiff suffered shock as a result of learning the death of a loved one in McLoughlin and nine days elapsed in Jaensch. In the Hillsborough disaster, eight hours had elapsed after identifying the bodies at the mortuary. This was not considered to be contemporaneous enough, both in time and space, to allow recovery. Moreover , they must have been present at the accident or immediate aftermath and the psychiatric injury must have been caused by direct perception of accident or immediate aftermath and not hearing about it from somebody else.
In summary , the current law on liability for psychiatric illness requires the following considerations ; * It must be reasonably forseeable that damage in the form of psychiatric illness will occur .The forseeablity depends on the nature of the relationship between the plaintiff and the victim , which must be one based on love and affection which in turn must be proven in court. * Psychiatric illness must be a result of what the plaintiff himself perceives with his senses . Even, a third party unrelated to the primary victim may claim if he sees a tragedy of exceptional horror. * There must be proximity between the plaintiff and the accident in terms of time and space which means that the plaintiff must either see the accident , hear the accident , or be physically present at the scene of the accident immediately aftermath. In Alcock for instance , the arrival of the plaintiff eight to nine hours after the accident did not satisfy the immediate aftermath test. * The means by which the plaintiff comes to know about the accident is relevant and psychiatric illness as a result of being informed about the accident by a third party is outside the scope of liabilty and it was held in Alcock. * The plaintiff must suffer a medically recognised psychiatric illness. In Brice v Brown, it has been held that the precise nature and extent of the psychiatric illness need not be forseeable.

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[ 1 ]. Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 ; [1991] 4 ALL ER 907 ,HL
[ 2 ]. Norchaya Talib, Law of torts in Malaysia , 3rd Edition,2010, Sweet & Maxwell Asia
[ 3 ]. [1897] 2 QB 57
[ 4 ]. http://www.lawteacher.net/free-law-essays/health-law/psychiatric-injury.php
[ 5 ]. [1982] 2 AL ER 298 , HL
[ 6 ]. http://e-lawresources.co.uk/Negligently-inflicted-psychiatric-harm.php
[ 7 ]. This is a derogatory approach as how can one measure ties of love and affection. The law requires correspondence between the parties if any; how close one live in the family home, etc.
[ 8 ]. http://www.bailii.org/uk/cases/UKHL/1991/5.html
[ 9 ]. [1992] 1 AC 310 ; [1991] 4 All ER 907,HL
[ 10 ]. Lord Ackner in Alcock v Chief Constable of South Yorkshire Police
[ 11 ]. [1984] 1 All ER 997