Nervous Shock and Akock: The Judicial Buck Stops Here. K.J. Nasir

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1 Measures in Misrepresentation for a similar sum, not the profits which the defendant s business might have made if the defendant s customers had continued to patronise that salon - that latter profit would only have been recoverable if the misrepresentation had been a warranty by the defendant. The decision emphasises how thin the line between contractual damages and deceit damages can be. In impinging on traditional contract areas of damages, the case gives the impression at least of bringing damages in deceit closer to contractual damages. Profits are, after all, so closely tied in with the notion of expectation - of the reward for the risks that one takes in entering into a contract - that it is difficult to classify them as a loss (from detrimental reliance) rather than as a potential gain (from bargain). It could be argued that, if other cases follow East v Maurer, it will eventually be possible to get loss of bargain damages under section 2( 1) after all. However, despite the slippery aspects of classifying financial loss, it is possible to distinguish in some cases between profits lost as a result of reliance as opposed to those lost as part of the bargain, and it seems sensible that the reliance loss should also be protected; if so, the out of pocket loss formula emphasised in the case may serve to differentiate the two. The case may indeed actually sharpen the distinction between damages in deceit and in contract: it represents a helpful illustration for assessing consequential damages in the two differing ways and a practical example of what falls to one side of the line (into deceit) as opposed to the other (contract). Practical examples will be particularly valuable of course if the deceit rule is now to provide the basis for assessment of damages in misrepresentation generally. Finally, East v Maurer also demonstrates another practical point about damages: Beldam W reiterates the view that, however precisely the principles are stated, there is little or no science about putting principles into practice in particular cases. He repeats Winn LJ s statement in Doyle v Olby that the amount has to be considered as a jury assessment - assessed in the round, rather than arithmetically; principles are only the starting point. Perhaps this is inevitable, but, given the proliferation of principles, it is rather disturbing. If, despite the complexity and intricacy of the rules for damages for misrepresentation, the rules can only provide the starting point for a wide discretion, the endeavour to distinguish between the remedies and to refine the principles may seem a rather pointless exercise. Nervous Shock and Akock: The Judicial Buck Stops Here K.J. Nasir The recent House of Lords decision in Alcock v Chief Constable of the South Yorkshire Police, denying relief to relatives of victims of the Hillsborough disaster, who suffered psychiatric illness through nervous shock incurred (in most cases) by witnessing the scenes on television and subsequently being informed of the relevant victim s death, raises two important issues. First, should direct perception of an accident or its immediate aftermath be a condition of recovery? Second, does watching *London. I All ER

2 ~~ The Modern Law Review [Vol. 55 television, or even listening to the radio, qualify as direct perception? In the following discussion, the boundaries of liability for similar cases of nervous shock will be examined, in an effort to show that the answer to the first question should be a definitive no, so that the second issue need not trouble the courts. Overview The most striking feature of the law relating to nervous shock caused to persons as a result of apprehending the infliction of physical injury, or the risk thereof to another person, is that a question seemingly concerned with the extenc of a defendant s liability for a negligent act has been turned into one of his culpability. At least since Bourhill v Young,2 a claimant has had to establish an independent duty of care on the part of the defendant, notwithstanding that in most cased the foreseeability of harm to such a plaintiff can have little if any impact on the defendant s standard of care.4 As it turns out, of course, the duty concept is better suited to a discussion of the various policy issues influencing a decision, in particular of whether the plaintiffs interest is primafacie worthy of protection. Indeed, nervous shock cases have long stood out as an all-too-isolated forum for judicial articulation of the various premises underlying the application of the elements of a cause of action in negligence. However, this theoretical contortion does nothing to advance the essential philosophy of negligence, as entailing a level of conduct measurable by reference to both the demands of the situation at hand and the perceived consequences of one s actions. Be that as it may, the courts have been reluctant to embrace mental injury as a form of legitimate harm, notwithstanding mounting medical evidence, to say nothing of human experience, to the contrary. Fear of the unknown has undoubtedly played its part, as have predictions of imaginary claims and a more understandable willingness to limit the extent of a defendant s liability for what appear to be remote consequence^.^ As a result, strict constraints on recovery have been established and, by and large, maintained.6 Three have gained prominence. First, the requirement that the plaintiff suffer a recognisable psychiatric illness. Second, that the plaintiff be within certain defined categories of relationship to the so-called primary victim. Finally, that he or she directly perceive either the accident or its immediate aftermath [ AC 92, viz a claimant cannot build on a wrong to someone else, per Lord Wright, at p 108. cf negligent words. See eg Barnes v Commonwealth (1937) SR (NSW) 51 1 (wife falsely informed that husband admitted to asylum held entitled to recover). For a discussion of the relevance of ulterior harm at the duty stage, see Hart and Honore, Causation and the Law (Oxford, 2nd ed, 1984) pp See generally Fleming, Ihe Law of Torts (7th ed, 1987) pp On the subject of remoteness, the test invoked in Ihe Wagon Mound (No 1) [1961] AC 388, involving a distinction between various kinds of harm, cannot realistically be applied to cases of mental illness. Since the egg-shell skull rule has now been applied to such cases (see Brice v Brown [ I All ER 997), a defendant could be said to be facing disproportionate liability were it not for other limitations. The reference here is to shock inflicted through perceiving injury or threatened injury to others. Of course, viewed as a whole, the law relating to nervous shock has undergone a transformation since the refusal of the Privy Council to recognise any form of mental illness, or even shock culminating in a palpable physical reaction, in Victoria Rfy v Coultas (1881) 13 App Cas 222. Hinz v Berry [I QB 40 per Lord Denning MR, at p 42. The requirement that the plaintiff be of normal fortitude is best regarded as a corollary of reasonable foresight. In any event, it can only be very loosely applied. See Fleming, me Law of Torts (7th ed, 1987) p

3 Nervous Shock and Alcock In Alcock and Others v Chief Constable of South Yorkshire,v the House of Lords has reaffirmed the first requirement, dispensed with the second, if only nominally, in favour of the more pragmatic requirement of foreseeability of harm, and come down in favour of the third - not as a relevant determinant of foreseeabilityi0 but as a limitation on it, finding its niche in the requirement of proximity between the plaintiff and the defendant. All the indications are that any expansion of liability is now firmly in the hands of Parliament. It is submitted that, in view of the manifest injustices yielded by the law, Parliament should respond by dispensing with the requirement of direct perception, at least for claimants with a strong bond of affection with the primary victim. The Facts and Ratio of AZcock The Alcock case arose out of the Hillsborough football tragedy in 1989, when the police allowed an excessively large number of people into a section of the ground already filled to capacity. In the ensuing crush, 95 spectators died and over 400 were injured. The scenes were intermittently broadcast live on television, though the suffering of recognisable individuals was not shown, in accordance with broadcasting ethics guidelines. The plaintiffs, some of whom were at the ground though in a different section and all of whom were relatives, or in one case the fianck, of persons who were in the affected area, claimed damages from the police for nervous shock occasioning psychiatric illness allegedly caused by watching the events. Causation was presumed, as was the requirement of a psychiatric illness, and the only issue for determination was whether the police owed the plaintiffs a duty of care. The House of Lords unanimouslyll upheld the Court of Appeal in denying relief to all the plaintiffs, more or less applying Lord Wilberforce s judgment in McLoughlin v O Brian.I2 Those plaintiffs who were not at the ground did not satisfy the requirement of proximity in that watching the disaster unfold on television, at least in view of the broadcasting guidelines, could not be equated with direct perception of the event. As for those at the ground, although they were related to the primary victims, there was insufficient evidence of the closeness of relationship needed for their illnesses to be reasonably foreseeable. Finally, the various identifications that took place afterwards in the mortuary, coming as they did at least nine hours after the death of the relevant individual, did not form part of the immediate aftermath. Proximity Perhaps the attribute of foreseeability that has done most to ensure the courts adherence to it as the foundation of liability in negligence, is its susceptibility to a diversity of unarticulated premises fuelling the development of the law. In nervous shock cases, as elsewhere, the tendency has been to present it, in one form or 9 [1991] 4 All ER 907. Alcock is the latest of three House of Lords decisions on nervous shock. The other two are Bourhill v Young (see n 2) and Mcbughlin v O Brian (19831 I AC The approach favoured by Lords Bridge and Scarman in Mcbughlin, ibid. I1 Full judgments were delivered by Lords Keith, Ackner, Oliver and Jauncey. Lord Lowry agreed with their conclusions but made no further comment. 12 [I9831 I AC

4 me Modern Law Review [Vol. 55 another,i3 as the sole determinant of a duty of care whilst in effect applying different criteria, based on a variety of policy convictions. Yet the sort of fiddling at standard contbls that has characterised most areas of negligence, with the notable exception of economic loss, has shown itself to be quite inadequate in the cases of nervous shock under discussion. By way of example, it is a brave soul who would venture that it is any less foreseeable that a woman who is told by a policeman of the deaths of her children will suffer mental illness, than one who, say, witnesses her husband being severely injured in a car accident.i4 However, the main criticism of the judicial view, that reasonable foreseeability simpliciter should govern recovery, has been the parallel insistence that direct perception is an important factor in the application of the test.is But often, and particularly where there is a close relationship between the plaintiff and the primary victim, it is suggested that direct perception will have little, if any, bearing on the plaintiff suffering nervous shock. The judgments in Alcock can, then, be commended for externalising the requirement of direct perception, thereby allowing foreseeability to retain at least some of its natural meaning. This is not to say that reasonable foresight of injury should not be the sole determinant of a duty of care - indeed, Lord Bridge s adherence to it in McLoughlin v O Briun16 betokened a welcome expansion of liability - simply that, as things stood, the concept was being stretched to breaking point. To this extent then, the requirement that the plaintiff directly perceive the accident or its immediate aftermath, coming in the shape of the even more nebulous concept of proximity, is to be welcomed.i8 Less welcome is the further condition, again under the rubric of proximity and also unanimously invoked, that the plaintiff must be at or near the scene of the accident or its immediate aftermath at the time of its occurrence. Quite what this adds to Historically, the courts have vacillated between a test based on the foreseeability of mental harm and one based on the foresight of physical harm. The latter operated, not by accident, as a substantial limitation on the scope of recovery. For criticism of it, see Goodhart, The Shock Cases and Area of Risk (1953) MLR 14. See eg Lord Oliver in Alcock [1991] 4 A11 ER 907, at p 926. The difference in severity of the accidents in the textual comparison is intended only to show that the law makes no allowance for it. Nowhere is this more apparent than in the well-known judgment of the Supreme Court of California in Dillon v Lgg (1968) 441 P 2d 912, where direct perception, presence at or near the scene and closeness of relationship were advanced as guidelines of foreseeability. Not surprisingly. these guidelines have subsequently been treated as rigid limitations. See eg Arausz v Gerhardr (1977) 137 Cal Rptr 619. (19831 I AC 410. Compare, for example, the approaches of the members of the Court of Appeal in King v Phillips [ QB 429, in holding that a mother s shock on hearing the screams of her son and looking out of an upstairs window to see his tricycle crushed under the wheel of a taxi, was not foreseeable. A number of brave but unconvincing attempts have been made to justify direct perception as a nonarbitrary requirement, arguably the best coming from Justice Deane in Jaensch v Cofsey (1984) 54 ALR Aust HC 417, at p 462 (his judgment was extensively quoted in Alcock): The other (rationale) lies in considerations of causal proximity in that in the one class of case the psychiatric injury results from the impact of matters which themselves formed part of the accident and its aftermath. such as the actual occurrence of death or injury in the course of it, whereas in the other class of case, the psychiatric injury has resulted from contact with more remote consequences such as the subsequent effect of the accident upon an injured person. By contrast, Lord Oliver in Alcock admitted, at p 926, that in the end, it has to be accepted that the concept of proximity is an artificial one which depends more upon the court s perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction. In the end, a defendant whose act or omission causes physical injury to the primary victim no less causes shock to a plaintiff who is informed of it by a third party than to one who actually witnesses it. However, it is fair to say that the more remote the relationship between the plaintiff and the primary victim, the greater the likely impact, and relevance, of a direct perception of the accident. 708

5 Nervous Shock and Alcock direct perception is not entirely clear - except that it must preclude any perception through television or radio. However, since at least two of their Lordships accepted that in appropriate circumstances the impact of the simultaneous television pictures would be as great, if not greater, than the actual sight of the accident, it seems that the requirement is not to be taken literally. It is suggested that the best approach, accepting the law as it stands, would be to ignore it altogether. On the facts, viewing the scenes on television was held to be insufficient in that it did not amount, according to Lord Keith, to a sudden assault on the nervous system 2o and, according to Lord Ackner, to the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. * Clearly, for the purpose of nervous shock claims, direct perception must be qualified in these or similar terms. Accordingly, a plaintiff who becomes mentally ill from watching the deteriorating health of a close relative (caused, for example, by the hazardous fumes the latter was negligently exposed to at work), would therefore be left without a remedy - notwithstanding contemporaneous perception of the injury.? Such a manifestly unjust rule can only be explained by the fact that cases of nervous shock had their origin in situations where the plaintiff sufferer was threatened with physical injury by a sudden Whilst recovery for gradually sustained physical injury has never been in doubt, it appears that the courts are too blinkered to recognise such a possibility for mental injury. Even accepting the refinement, however, it is not easy to see why the plaintiffs in Alcock failed to satisfy it. Anyone watching television that afternoon would have been appalled at the scale and intensity of human suffering on display. The knowledge that someone very dear was in the affected area must surely have been capable of precipitating a sudden assault on the nervous system in all but the most hardened of citizens. The uncertainty as to whether or not a loved one was amongst those being crushed to death, not to mention the feeling of powerlessness, can only have increased their torment. However, Lord Oliver described the sequence of events culminating in the mental trauma as a more elongated and, to some extent, retrospective process. 24 That may be so, but the experiences undergone by most successful claimants are to some extent protracted, notably those viewing not the accident itself but its immediate aftermath. Nor does his Lordship s distinction necessarily reflect the underlying merits. The fact that one claimant s experience is less protracted than another s does not mean that the latter has suffered any the less - on the contrary, on an abstract analysis he or she will usually have suffered more. One is left, then, with a rule that is unjust, not merely for excluding meritorious claims, but for including less meritorious ones [ All ER 907 per Lord Ackner, at p 921. His Lordship, along with Lord Oliver (at p 931). had in mind the example given by Nolan U in the Court of Appeal. namely where television cameras. whilst filming and transmitting pictures of a media event of children travelling in a balloon. showed the balloon suddenly bursting into flames. ibid at p 915. ibid at p 918. See, however, Krdj v McGrarh [ I All ER 54, discussed by N. Grace, (1986) 2 PN 46, where Woolf J awarded a woman damages for nervous shock caused as a result of learning of the death of her newborn child and of watching it happen during her visits to the hospital over a period of three weeks. Cf where the plaintiff suffers psychiatric illness as a result of caring for an already injured victim, where the requirement of direct perception would not be met. Dulieu v Wire [ 1901] 2 KB 669, the first English case to recognise mental illness as legal harm. albeit in terms of a link in the chain of causation leading to actionable physical harm (in that case. a premature birth), conditioned recovery on a reasonable fear of immediate personal injury to oneself. per Kennedy J, at pp 675 and 682. [I All ER 907. at p

6 The Modern Law Review [Vol. 55 The conclusion to be drawn from this aspect of the case is that their Lordships envisage that the requirement of direct perception should be strictly applied - notwithstanding the somewhat tentative concession that viewing simultaneous television scenes may, in narrow circumstances, be sufficient. Such a result, involving the abandonment of yet more flexibility in an area where the features of the harm, both in terms of its nature and the variety of means possible for its onset, are both wide-ranging and largely uncertain, involves, it is submitted, a wholly inappropriate abdication of judicial discretion. Another aspect of proximity merits consideration at this juncture, one that has developed by analogy from standard bystander cases and which is revealing of the law s attempts to patch up some of the harshness of the requirement of direct perception whilst seeking to conserve its overall coherence. This is the doctrine of immediate aftermath. Immediate Aftermath In certain circumstances, a plaintiff who witnesses, not the accident itself, but its immediate aftermath, may recover damages for nervous shock. According to Justice Deane, the aftermath of an accident encompasses events at the scene after its occurrence, including the extraction and treatment of the injured. In a modem society, the aftermath also extends to the ambulance taking an injured person to hospital for treatment and to the hospital itself during the period of immediate post-accident treatment. 25 However, just as the inclusion of initial treatment at a hospital can be justified on the ground that liability cannot rationally be made to depend upon a race between a (plaintiff) and an ambulance, 26 so an extension from immediate post-accident treatment can be justified on the basis that a traffic jam, perhaps even a traffic light, on the way to the hospital could conceivably make all the difference between recovery and failing to recover for an ensuing psychological illness. The impact of the law on relatives of a deceased victim in this context is especially troubling. Here, the urgency impelling a plaintiff to rush to the primary victim s side would be lacking, at least if he or she was certain of the said victim s death. Perhaps more importantly, the body of the deceased is rarely as accessible so soon after the event. Moreover, Lord Jauncey in Alcock drew a quite legitimate distinction between dead and injured victims, in that visits to a mortuary are not made for the sake of giving comfort to the victim but purely for the purpose of identificati~n.~ Consequently, whether such visits take place one hour after the accident, or one week later, is very much a matter of chance.28 If the distinction as regards hospital treatment previously discussed is unsatisfying, it is an even sadder reflection on the state of the law when relatives of the deceased victim of a defendant s negligence are in a significantly worse position than relatives of an injured victim.29 The manner in which immediate aftermath cases have become established, on Jaensch v Cofley (1984) 54 ALR 417, at p 462. ibid per Brennan J, at p 439. [I All ER 907, at p 937. Lord Ackner, however, considered that identifications could form part of the immediate aftermath, though not on the facts, the earliest coming about nine hours after the victim s death; ibid at pp Though the plaintiffs in Hevican v Ruane [I All ER 65 and Ravenscroft v Rederiaktiebolaget Transatlantic [ All ER 73 each succeeded on the basis of being informed of the respective son s death, both cases were doubted in Alcock, and Ravenscroft has now been reversed by the Court of Appeal. See The Times, 6 April

7 Nervous Shock and Alcock the basis of logical necessity, would, if allowed to continue unabated, undoubtedly lead to the extinguishment of the whole requirement of direct perception. One can see, then, how a strict application of that requirement is essential for its continued existence and how the lawmaker s choice is limited to applying it stringently, or not at all. In real terms, its extension to include immediate aftermath cases as defined, but to exclude all others, is less the product of any spurious justification on grounds of causation, than of an attempt to mitigate the blanket rejection of what can be significantly more meritorious claims. The extension can also be looked at as reintroducing, by the back door, a degree of flexibility into the law. It has already been mentioned that liability in these cases has little if any impact on a defendant s standard of care. Thus, the exercise is more directly one of achieving a balance between the acknowledgement of a cause of action in situations which cry out for one, and limiting the defendant s liability. The difficulty, however, is that the criterion of direct perception will not often reflect the underlying merits of a case, whether in terms of the degree of foreseeability of the claimant s injury or by reference to any other measure. The point has already been made that the closer the relationship between the primary victim and the plaintiff, the more arbitrary the requirement. In the end, the difficulty is so pronounced because the vast majority of cases in this area have involved and are likely in the future to involve, very close relationships. In addition, it is probably also true to say that the more enduring psychiatric illness, of the type that the law has singled out for compensation, occurs almost exclusively as a result of the intimacy of a relati~nship.~~ Further, as has already been illustrated, there is no facility to deal with claimants falling on the wrong side of the line, no matter how deserving. Immediate aftermath cases, far from remedying the situation, have in fact only emphasised the problem. Degrees of Relationship The House of Lords in Alcock unanimously rejected a requirement that the plaintiff be within any specific categories of relationship with the primary victim. In doing so, in theory it spawned two propositions. First, the relationship need not actually be that of parent-child or spouse, notwithstanding that, in all the decided cases,? the successful plaintiff either was so related to the primary victim, or else was an employee of the defendant and suffered the shock during the course of his employment.32 Second, according to the majority of the House, the relationship need not cf temporary sensations of fright or distress caused by viewing an accident. The distinction is between primary and secondary reactions - see eg Teff, Negligently Inflicted Nervous Shock (1983) 99 LQR 100, at pp In this sense, it could be said that the terms nervous shock and psychiatric illness are somewhat at odds. Except involving rescuers. See Chadwick v British Transport Commission (19673 I WLR 912 and the landmark US case of Wagner v Inrernarional Rly Co (192 I ) 232 NY 176, NY Ct of App. Notwithstanding the reliance in such cases on foreseeability (eg danger invites rescue ), the law is clearly giving effect to a policy of encouraging the rescuers activities. In Wagner, the plaintiff, though intending to rescue his friend who had fallen off a train, went to the wrong area and so could not possibly have rescued him. Nonetheless, he recovered damages for his illness. Each of the two plaintiffs in Alcock who were at the ground also conducted a fruitless search for their brothers. Yet, according to all four of their Lordships, they still had to establish the necessary closeness of relationship (not required in rescuer cases), which they both failed to do. Lord Oliver, at p 93 I, also suggested that they failed to satisfy the proximity requirement in that their realisation of what had happened was gradual. For an analysis of search and rescue cases, see Evatt J in Chester v Waverlqv Corporarion (1939) 62 CLR I, at pp Dooley v Cammell Laird & Co Lrd [ I Lloyd s Rep

8 The Modern Law Review [Vol. 55 (in theory) be capable of being equated with that of parent or Whatever the degree of care, it would have to be viewed in the context of the surrounding circumstances, the nature of the accident and the seriousness of the injury, threatened or actual, to the primary victim being paramount. Hence, the same majority conceded that if the circumstances of a catastrophe occurring very close to him were particularly horrifi~, ~ a description surely satisfied by the events at Hillsborough stadium, a bystander unconnected with the victims of the accident could recover for an ensuing psychiatric illness. In practice, however, plaintiffs who are not parents or spouses (or the equivalent) of the primary victim are likely to have considerable difficulties in recovering damages. Quite apart from the fact that successful claimants outside these categories are almost unpre~edented,~~ their Lordships express indication that the requisite level of foreseeability can be presumed for these relationships tends to suggest that there is something of a presumption against everyone else. There can be few more graphic examples of this than the case of one of the plaintiffs in Alcock, namely Brian Harrison, who witnessed the scenes from a stand immediately behind the affected area. Mr Harrison lost two brothers, whom he knew to be in that area at the time of the disaster. However, their Lordships unanimously held that in his case there was insufficient evidence of the closeness of relationship sufficient to place him within the class of persons to whom a duty of care was owed, as being foreseeably at risk of mental illnes~. ~ This despite the majority dicta attaching importance to the nature of the accident. If a person who loses two brothers in circumstances as horrifying as those in the Hillsborough disaster cannot recover, it is not easy to conceive of a situation where someone other than a parent or spouse, and certainly a mere bystander, can.3n One has then potentially a recurrence of the familiar vice of using a foreseeability test as a mask for the application of other criteria. It is suggested that the courts can, and should, resist this temptation. The ratio of Alcock, in this respect, is that the categories of relationship between the plaintiff and the primary victim are both open and embodied in the requirement of foreseeability - as are the nature of the accident and the gravity of the actual or apprehended injury. The failure of Brian Harrison to recover should be treated as a failure on the evidence alone. How, then, should the twin issues of foreseeability of harm and degree of relationship be tackled were the requirement of direct perception to be discarded? Ideally in the same way, considering all the circumstances together and imposing strict requirements of proof - supplemented, if need be, by the implementation of a threshold recovery perk@ and even by the introduction of an outer monetary limit in respect of the damages payable. However, should Parliament insist on a more stringent safeguard, it is suggested that in the final analysis it would be better to 33 Lord Jauncey insisted that the claimant establish so close a relationship of love and affection to the victim as might reasonably be expected in the case of spouses or parents and children I All ER 907, at p A considerable degree of hindsight would therefore have to be attributed to the defendant, putting strain on the notion of foresight. 35 hid at p Though just how many have tried is impossible to tell. ibid. eg per Lord Keith, at p 915. Though note Lord Ackner s suggested example of a passer-by witnessing a petrol tanker careering out of control into a school in session and bursting into flames, ibid at p 919. cg the three-month period advocated by the Royal Commission on Civil Liability and Compensation for Personal Injury (the Pearson Report ) for all personal injury claims, (1978) Cmnd 7054, vol 1, para 388. See Teff, Liability for Negligently Inflicted Nervous Shock (1983) 99 LQR 100, at p 105.

9 Nervous Shock and Alcock have closed categories of relationship than to adhere to direct perception. This, surely, would more accurately reflect the merits of the majority of cases. Conclusions In Afcock itself, Lord Oliver recognised the need for change in this area of law, remarking: I cannot, for my part, regard the present state of the law as either entirely satisfactory or as logically defensible. 41 It is suggested that the following changes would best serve the interests of justice: (1) The requirement of direct perception of the accident or its immediate aftermath should be abandoned. (2) Should a limitation on liability be deemed necessary, the categories of plaintiff afforded a remedy should be restricted to those involving close familial ties (or the equivalent) to the primary victim - to include parents, spouses and, possibly, siblings. Such a limitation should be without prejudice to the requirement of foreseeability. (3) A threshold period for recovery should be introduced. To dispense with the requirement that the plaintiff directly perceive the accident or its immediate aftermath would be a bold step: there are genuine policy arguments or more accurately fears, against such a move.42 But the stage is often reached, as it is submitted it has been in this instance, where the injustices and inconsistencies thrown up by the law present themselves as a greater evil. Nor is there much reason to expect an over-abundance of claims in the wake of such a change - a contention borne out not only by the strict requirements of proof but also the marked paucity of decided cases. It is a matter for comment that whenever the House of Lords has considered the floodgates argument, the overwhelming consensus has been that it is far o~errated.~~ Finally, more positive reasoning, based on principles of loss distribution, can be readily invoked in this context. In other words, should the loss fall on a defendant whose negligent act caused the mental injury, or on a plaintiff, whose illness is both legitimate and foreseeable? When senior judges express grave dissatisfaction with the state of the law in an area of such importance, the time is ripe for Parliament to step in A welcome side-effect of such a development is that the role of foreseeability would, in this area, be formally relegated to that of a bit-part player. It is readily appreciable that in cases of indirect harm, a test involving the relatively high level of foreseeability associated with the establishment of a duty of care is extremely difficult to apply. It is no accident that the test for remoteness, where the recoverability of indirect harm has usually to be decided, involves a far lower threshold of foreseeability. See eg Fleming, The Passing of Polemis (1961) Cunudiun Bur Review 489, esp pp [I All ER 907, at p 932. See also Lord Scarman in McLoughlin v O Briun (19831 I AC 410, who also felt that Parliament ought to intervene, though for different reasons. Indeed, the law in this country may be compared quite favourably with the law in the US where a large number of States still adhere to the so-called impact rule, requiring that the plaintiff be exposed to a risk of direct physical injury in order to recover for mental injury. Many of those that do not, insist on strict limitations: see eg the five conditions laid down by the Supreme Court of Iowa in Burnhill v Davis (1981) 300 NW 2d 104. By contrast, in New South Wales, Australia, a statute has been enacted allowing parents or spouses of the primary victim to recover, no matter how they learn of the relevant injury (without prejudice to proof of causation, etc). See Law Reform (Miscellaneous Provisions) Act 1944, s 4(1). See also Rowe v McCurrney [I NSWLR 544, at p 549 (the Act leaves room for the operation of common law principles). See, in particular. all five judgments in Mckiughlin v O Briun [ I AC