motor vehicles do not reflect the highest risk involved in driving, which is killing someone. In this respect, motoring does not pay its own way because it is, in fact, ‘subsidized’ by those who die in traffic accidents and their relatives. They suffer a terrible loss for which tort law as such does not provide compensation.

703 THE RIGHT TO PHYSICAL INTEGRITY

Th e ECHR does not protect the right to physical integrity as such. It is only very partially protected by Article 2 to the extent that the infringement of the physical integrity is caused by an immediate and life-threatening danger caused by the criminal act of a third party (Section 1807), and by Article 3 to the extent that the physical harm is caused by torture, inhuman or degrading treatment, or punishment (Section 1808-1).

In tort law, the right to physical integrity is probably the best protected right. When someone is physically injured, liability will generally be rather easy to establish: in many cases either a rule of strict liability will apply or the wrongdoer has not acted with due care. Usually it will not be difficult to find the wrongdoer and to prove the causal connection between the wrongful conduct and the damage.

Th is position does not differ from the protection of the right to life. However, compensation for damage caused by the infringement of the right to physical integrity is much more adequate than in cases where someone has died: in cases of injury the pecuniary loss, particularly medical expenses and loss of income, is compensable as is nonpecuniary loss, particularly for pain and suffering. The amounts for the latter can be rather substantial (Section 1205-1).

It should, however, be borne in mind that the level of protection of a right or interest and, indeed, its content and scope, depends on the character of the activity in which the victim suffered physical harm (Section 711-2). Examples can be found in sports cases. If someone suffers physical injury in the course of a game, he may have more difficulty in obtaining compensation if risks to bodily integrity are inherent in the sport. For example, a footballer who is injured by a tackle from his opponent or a tennis player who is hit in the eye by a ball during a game. In these cases, the fact that bodily injury is caused does not bring the victim close to the successful claim he may have had if the same injury had happened outside the sporting arena. It also has to be established that the opponent acted in a way that the claimant did not expect within the framework of the game (Section 809-3). This example illustrates that the scope and extent of someone’s right (here: to bodily integrity) depends on the need to grant other persons the freedom to act.

A related topic that has come up in recent case law is the legal status of sperm. If someone’s sperm is stored in a hospital and it is destroyed, should this be considered an infringement of physical integrity or property? Legal systems answer this question differently. Section 402-3 mentioned the German case of a man who had his sperm frozen by a hospital prior to an operation which carried the risk of becoming infertile. Some time later the hospital destroyed the man’s sperm without his consent. The German BGH considered this to be a breach of the bailment contract and an infringement of the man’s

right to bodily integrity. In the system of the German Civil Code at that time, the latter provided for damages for non-pecuniary loss, whereas property harm did not.7 Th e BGH emphasized that the infringement of bodily integrity does not apply if the severed body substance does not have the purpose of being reintegrated with the human body.

Th e English Court of Appeal took a different approach but reached a similar result. In this case the six claimants’ sperm thawed before it could be used because the hospital failed correctly to maintain the storage facility. Counsel for the men referred to the German decision but the Court of Appeal considered it to be influenced by contextual considerations (the limited system of the BGB to award damages for non-pecuniary loss) that did not apply in English law.8 Whilst the Court of Appeal rejected the contention that the men had suffered personal injury, it accepted that the claimants had ownership of the sperm they had produced. They had generated it from their bodies, with the sole object that it might later be used for their benefit. Such property harm could give rise to a claim for non-pecuniary loss provided the distress and psychiatric injury were a foreseeable consequence of the hospital’s breach of duty. However, the Court of Appeal preferred not to wade into the muddy waters of the distinction between primary and secondary victims (Section 705-4) and found that an action in bailment provided a more favourable legal basis for the men’s claim. They were entitled to compensation for psychiatric injury or actionable distress that was the foreseeable consequence of the breach of the hospital’s promise to the men that the sperm would be stored at freezing temperature.9

Th ese developments show that in novel cases national courts can be creative in order to do justice to the interests at stake. The question whether destroying sperm amounts to personal injury or to property loss is subservient to the outcome of the case and the redress and vindication that can be provided.

See on the protection of the right to physical integrity of a foetus, Section 708-1.

704 THE RIGHT TO PHYSICAL HEALTH

Th e right to physical health protects people against the consequences of disease, for instance cancer (mesothelioma), AIDS, or Legionnaire’s disease. German tort law differentiates between the right to bodily integrity and the right to health (§ 823 I BGB, see Section 402-3), but there is no reason to elaborate the difference or to look for strict definitions. ‘It is generally accepted that most types of damage to a person’s body commonly also constitute an impairment of his health.’10 Article 10:202(1) PETL uses the words ‘bodily health’.

7 BGH 9 November 1993, NJW 1994, 127 = JZ 1994, 464.

8 Yearworth v North Bristol NHS Trust [2010] QB 1 at 22, ETL 2009, 155 (Morris and Oliphant). 9 Yearworth v North Bristol NHS Trust [2010] QB 1, ETL 2009, 152 (Morris and Oliphant).

10 Von Bar (2000), N 57.

However, the distinction illustrates the practical difficulty of protecting the right to health compared with the protection of the right to bodily integrity. Although the right to health is globally considered to be of the utmost importance and stands at the same level as the right to bodily integrity, effective protection by tort law often depends on the possibility of proving causation between the negligent conduct and the damage. In the course of the twentieth century, medical science has increasingly proved able to establish causal connections in a general sense.11 In individual cases, however, it may still be impossible to establish a causal connection.

A good example is the English Fairchild case, involving someone who had been exposed to asbestos.12 Exposure to asbestos increases the risk of several illnesses, of which the most serious is mesothelioma—a lethal form of lung cancer caused by the inhalation of asbestos fibres—which has an incubation period of 20–40 years. Technically it is impossible to establish where and when a patient inhaled the fatal asbestos fibres. Hence, such cases will be decided by the question of who has to prove the causal connection. Basically, the burden of proof for causation is on the claimant but, in order to ensure reasonable protection of the claimant’s health interests, courts are under certain circumstances inclined to relax the burden of proof and this was in fact what the House of Lords did, referring to similar decisions in other European jurisdictions (Sections 104-2 and 1107-3).

When is it possible to speak about an infringement of the right to health? In German and French law it is held that an infection, for instance with HIV, can be considered an interference with health because it is an impairment of normal bodily functioning, even if no pain is suffered or no marked change is apparent.13

Th is case law can be contrasted with the English Pleural plaque case. The tort of negligence is not based on the infringement of a right (Section 608), but similar issues arise when it comes to the question whether the claimant in a negligence case has suffered actionable damage. The Pleural plaque case concerned four employees who had been exposed to asbestos and developed pleural plaques (fibrous tissues on the membrane of the lung). Pleural plaques are not harmful in themselves but they indicate an enhanced risk of developing asbestosis or mesothelioma. The House of Lords unanimously dismissed the employees’ claims, considering that pleural plaques did not constitute actionable damage, particularly since they were neither visible nor disfiguring nor the first stage of an asbestos-related disease. The fact that the employees had an enhanced

11Eg the increased chance of developing a certain type of cancer if living in the neighbourhood of a nuclear plant.

12Fairchild v Glenhaven Funeral Services Ltd & Others [2002] 3 All ER 305.

13Germany: BGH 30 April 1991, NJW 1991, 1948 (contaminated blood transfusion), on which see Van Gerven (2000), 84–85. France: Cour d’appel Paris 7 July 1989, Gaz. Pal. 1989. 752, on which see Van Gerven (2000), 122–123 and Act 91-1406 of 31 December 1991 pour l’indemnisation des victimes contaminées par le virus de l’immunodéficience humaine, creating a special fund for persons who were infected with HIV as a result of blood transfusions; see Van Gerven (2000), 629–630; Le Tourneau (201204), nr 8502–8561.

risk of developing such a disease could only come into play once actionable damage had been established.14

Th e ECHR does not protect the right to physical health as such and the same goes for the right to mental health (Section 705). These rights are only very partially protected by Article 2 (Section 1807) to the extent that the physical or mental illness is caused by an immediate and life-threatening danger caused by the criminal act of a third party, by Article 3 (Section 1808-1) to the extent that it is caused by torture, inhuman or degrading treatment, or punishment, and by Article 8 to the extent that it amounts to an infringement of the right to private life and home (Sections 1416-4 and 1808-2).

705 THE RIGHT TO MENTAL HEALTH

705-1 VARIOUS NATIONAL THRESHOLDS

In daily life, people often suffer feelings of discomfort caused by others. As such, however, they are usually not compensable. ‘Just as some harm to the body is negligible, eg pushing and shoving on the underground, or noise, or dirt on the skin, and does not constitute “injury”, negligible impairments of a person’s psyche are equally insufficient bases for action.’15 A certain level of discomfort needs to be reached, such as grief and sorrow, pain and suffering, unconsciousness, or psychiatric problems, such as a posttraumatic stress disorder, neuroses, or psychoses.

Th e starting point in many legal systems is that pecuniary loss caused by mental harm is only compensable if it amounts to a medically recognized psychiatric illness (France takes a less strict stance in this respect). However, non-pecuniary loss caused by physical harm (eg discomfort, grief and sorrow, pain and suffering) does not need to fulfil the requirement of a medical condition (Section 1205-1). Hence, compensation for non-pecuniary loss concerns the infringement of mental well-being rather than mental health in a strictly medical sense (see Section 705-7). It needs to be kept in mind, however, that a claim for non-pecuniary loss can only lie if it is consequential on the infringement of a right to physical integrity or health.

Th ese distinctions can be relatively easily made in German and English law where the infringement of mental health is subject to the requirement of a medical condition. In France, there is no such objective threshold: also the negative impact on someone’s

14Rothwell v Chemical & Insulating Co. Ltd, Re Pleural Plaques Litigation [2007] UKHL 39, ETL 2007, 239 (Oliphant). See also the case notes by Miquel Martín Casals, Sébastien Beaugendre, Faro Sobczak, David Townend, Gerrit van Maanen, Albert Azagra, Anton Dulak, Bajrte Askeland, and Nadia Coggiola, ERPL 17 (2009), 177–247. This may be contrasted with other forms of damage which have been deemed to be actionable in English law, such as negligent imprisonment, as well as wrongful conception and untreated learning disorders as a form of personal injury; see Donald Nolan, ‘New Forms of Damage in Negligence’, Mod LR 70 (2007), 59–88.

15Von Bar (2000), N 60.

feelings can amount to mental harm. This means that in French law the distinction between the protection of mental health and mental well-being is more blurred.

Th ere is another distinction to be made with respect to compensation for mental harm. In the first category are victims who have also suffered physical harm or were in the zone of physical danger. In these cases, the mental harm is usually consequential upon or in concurrence with the physical harm. In such situations, the courts are usually generous in accepting a causal link between the accident and the medical condition.

A fine illustration is the English case of Page v Smith. Page was involved in a minor car accident; he was physically unhurt but three hours later felt exhausted and the exhaustion continued. He claimed that this was a recurrence of the chronic fatigue syndrome (CFS) from which he had suffered for 20 years but was in remission at the time of the accident. Smith argued that the CFS was not a foreseeable consequence of the accident but the House of Lords held that it only needed to be foreseeable that Page would suffer some form of personal injury, be it physical or psychological, as a consequence of the accident.16

In the second category are those who are not directly involved in an accident but have suffered harm as close relatives of the primary victim or because they witnessed the accident or its aftermath. This category includes rescuers, bystanders and family members of the primary victim, who suffer inconvenience, grief, or mental health issues. This is called ‘pure mental harm’ as it is not consequential upon or in concurrence with one’s own physical harm. These victims need to cross higher hurdles to obtain compensation and in many cases they will not be entitled to compensation at all.

Generally speaking, French law only requires that the victim’s mental harm is a direct and certain consequence of the defendant’s conduct. In principle, all forms of mental harm are eligible for compensation; a recognized medical illness is not required.17

English and German law require, first, that the victim’s mental harm is a foreseeable consequence of the defendant’s conduct. Moreover, these jurisdictions require that the mental harm amounts to a recognized medical condition. And on top of this, English law sets out a number of additional requirements for a claim for mental harm to be successful. These various approaches will be discussed in more detail in the following sections.

Th is section discusses the national requirements for infringement of the right to mental health with an emphasis on the so-called secondary victims: those who were not physically injured themselves and thus suffered ‘pure mental harm’. The claim for compensation for the damage caused by this infringement is discussed in Chapter 12; compensation for non-pecuniary loss in particular in Sections 1205 and 1206.

16Page v Smith [1996] AC 155, on which see Van Gerven (2000), 103–105.

17Civ. 2e 22 February 1995, D. 1996. 69, comm. Chartier and Cour d’appel Paris 10 November 1983, D. 1984. 214, on which see Van Gerven (2000), 118–119. Terré-Simler-Lequette (2009), nr 700–703.

705-2 FRANCE

Th e starting point in French law is that mental harm can be compensated if it constitutes damage (dommage) in the sense of articles 1382 and 1384 CC. Damage to health or sentiments are generally seen as dommages extrapatrimoniaux in the sense that they are not concerned with a person’s property. There is no general test for what, in this respect, may amount to mental harm and it is for the courts to assess on a case-by-case basis the subjective issue of the level of distress suffered by the victim appearing before them.18

In French tort law, it is not only the victim who is directly injured who may claim, but also the indirect victim. The latter is known as the victime par ricochet. Th is can be translated as the ‘rebound victim’ in the sense that the damage, like a ball, first hits one person, rebounds off them and hits a second person close by. As with any other type of damage in French law, the ‘rebound’ must be proven to be a direct and immediate consequence of the relevant fault (Section 1105).

Rebound victims usually concern close family members, not only of a victim who has died as a result of someone else’s conduct but also of a victim who has suffered serious injury. These relatives may suffer emotional pain, grief, and possibly a loss of income.19 Th e mental aspect of the damage suffered by a victime par ricochet is called the préjudice d’affection (affection injury),20 a doctrine that has been accepted in France since the late nineteenth century.21 For both fi nancial and mental harm, the rebound victim must fulfil certain conditions in order to claim compensation.

First, there must be a connection between the primary victim and the claimant. The jurisprudence initially required a legal link between the primary victim and the claimant, such as a marriage;22 however, in 1970, it accepted that a partner of a victim could claim indirect reparation if they could prove a material or sentimental link with the primary victim.23 Th e minimum relationship needed is that the claimant knew the victim personally and that the relationship was established in person between the victim and the claimant—a family link will create a presumption of a ‘link of affection between the two’.24

Initially, the right to indirect reparation was limited to the death of a loved one, but has been extended to the pain caused when seeing a loved one suffering or maimed. Hence, the relative of a person who suffered an injury of a ‘certain severity’ may also claim compensation.25

18Fabre-Magnan (2010), 124.

19Fabre-Magnan (2010), 130.

20Terré-Simler-Lequette (2009), nr 713.

21Crim. 22 March 1877, Bull. crim., nr. 86.

22Fabre-Magnan (2010), 131.

23Ch. mixte 27 February 1970, D. 1970, 201 note Combaldieu; Crim. 17 October 2000, Bull. crim., nr.

297.

24Fabre-Magnan (2010), 131.

25V. Bourrié-Quenillet, Le préjudice moral des proches d’une victime blessée, JCP 1988.I. 186 and Civ. 2e 23 May 1977, Bull. civ. II, no. 139.

Th ere are no clear criteria for what level or type of distress of the rebound victim qualifies as an injury of affection. Unlike the German and English systems, a medical condition is not required. The courts seem to apply the criteria none too strictly as they have sometimes compensated a person for the emotional distress caused by the loss of a cherished pet.26

705-3 GERMANY

In Germany, the right to compensation for mental harm for people who were not themselves physically injured, is in practice limited to close relatives, including the fiancé(e) and the partner in an amatory relationship. Their feelings need to amount to a medically recognized illness, which means that the harm must have surpassed the normal levels of pain, grief, and distress (Section 402-3). Generally, a claim is only awarded in the case of a traumatic disorder with consequences lasting for a certain time.27 For example, the BGH awarded the claim of a woman who received a shock after hearing that her husband had been killed in a car accident28 but rejected the claim of a couple who had to cancel a cruise after their son died in a car accident. The couple asserted that the cancellation costs were caused by the grief and distress on hearing of the death of their son but the BGH held that this did not amount to an infringement of the right to health.29 German law does not require the victim to have witnessed the accident, although if he did, this might be of relevance in cases of less severe injury.30

It also has to be foreseeable that someone will suffer some form of mental incapacity as the consequence of an accident. This means that an extreme reaction to an accident can be unforeseeable, even though it exceeds the normal degree of suffering and amounts to medical condition. For example, the BGH considered that it was not foreseeable that a woman whose husband died in a traffic accident would suffer from ‘a serious mental shock resulting in character changes manifesting themselves as depression, uncontrollable fits of crying, extreme excitability, insomnia, and nervous trembling at the slightest sign of excitement.’31

Th e claim for mental harm in German law needs to be seen in connection with the fact that it is not possible to receive compensation for grief and sorrow following the

26Civ. 1re, 16 January 1962, D. 1962, 199, note Rodière.

27BGH 4 April 1989, NJW 1989, 2317, on which see Markesinis and Unberath (2002), 119–122.

28BGH 11 May 1971, BGHZ 56, 163 = NJW 1971, 1883 = VersR 1971, 905: ‘bei der Klägerin über noch im Bereich normaler Reaktion liegende Erscheinungen von Schmerz, Trauer und Niedergeschlagenheit hinaus unmittelbar zu einer “traumatischen” Schädigung der physischen oder psychischen Gesundheit geführt hat.’ See Markesinis and Unberath (2002), 115–119. See also BGH 5 February 1985, BGHZ 93, 351 = NJW 1985, 1390.

29BGH 4 April 1989, NJW 1989, 2317, on which see Van Gerven (2000), 87–89 and Markesinis and Unberath (2002), 119–122.

30BGH 5 February 1985, BGHZ 93, 351 = NJW 1985, 1390.

31BGH 11 May 1971, BGHZ 56, 163 = NJW 1971, 1883 = VersR 1971, 905, on which see Markesinis and Unberath (2002), 115–119; translation derived from von Bar (2000), N 65. See also BGH 31 January 1984, NJW 1984, 1405.

death of a loved one (Section 1206-3). Particularly in cases where the loved one, for example a child or an elderly person, did not financially maintain others, there is no other legally relevant damage than that which follows from the infringement of the right to (mental) health. This means that in such cases there is an incentive to challenge the limits of protection of this right.32

705-4 ENGL AND

In the tort of negligence, the question whether there is a right to compensation for mental harm is framed as whether one person owes another a duty of care to protect him against mental harm (Section 503-6). The case law has answered this question in a sophisticated way.

If a person is not a primary victim (someone who has suffered personal injury of some form or has been in the zone of foreseeable physical danger, Section 705-1), he may be a secondary victim. These are mainly passive and unwilling witnesses of injury caused to others.33 Whether they can claim compensation for their mental harm was to a great extent answered in one of the Hillsborough cases in which relatives and friends claimed compensation after witnessing spectators being crushed to death in a surging crowd during an FA Cup match in Sheffield in 1989. In order to receive compensation these victims had to satisfy a number of requirements.

First, the victim must prove that he suffers from a recognized psychiatric illness as a consequence of the event.34 Second, there needs to be proximity of relationship, which means a close tie of love and affection with the primary victim. Some relationships, such as those between parents and children and between married couples (including registered partners), are presumed to satisfy this criterion.35 Others, such as siblings and grandparents, have to prove that such a relationship existed in order to make the psychological damage foreseeable. In such cases, the relationship needs to be sufficiently close and loving to establish foreseeability of the psychological damage.36

32In these cases § 254 is not directly applicable because the relative has a separate claim on the basis of § 823 I (infringement of health). Hence, in these cases courts apply § 254 analogously (Section 1208-1). BGH 11 May 1971, BGHZ 56, 163 = NJW 1971, 1883 = VersR 1971, 905, 1140, on which see Markesinis and Unberath (2002), 115–119.

33Lord Oliver in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; Lunney and Oliphant (2010), 342–350.

34See for criticism of this requirement, Rachael Mulheron, ‘Rewriting the Requirement for a Recognized Psychiatric Injury in Negligence Claims’, OLJS 32 (2012), 77–112. She argues, inter alia, that the stage has been reached whereby something lesser than a recognized psychiatric illness should be sufficient to trigger a compensable injury in law.

35Lord Keith, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, suggested including engaged couples, as their tie of love and affection was often stronger than long-term marriages, but the House of Lords declined.

36Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, on which see Van Gerven (2000), 101–103. Lords Ackner and Oliver suggested a residual exception for a bystander not having a close tie of love and affection with the deceased where he was exposed to ‘circumstances of such horror as would be likely to traumatize even the most phlegmatic spectator’ (apparently, the Hillsborough scenes did not satisfy this

Th ird, the House of Lords required proximity in time and space: the claimant needs to have witnessed the accident or its immediate aftermath with his own eyes. This excluded all the relatives who had watched the Hillsborough disaster on television.37 In McLoughlin v O’Brian a woman received the message that members of her family had been taken into hospital after a serious car accident. When she arrived at the hospital, she found one of her children dead and two other children and her husband seriously injured. The House of Lords accepted proximity even though she was not a witness to the accident but only faced its ‘immediate aftermath’.38 In theory, this case law leads to a race with the ambulance because the less time that passes, the more likely it is that the victim or deceased shows signs of the accident’s immediate aftermath. Even the quality of the hospital care may play a role. The arbitrariness of this third requirement has put pressure on the courts to interpret the ‘immediate aftermath’ in a flexible way.39

Fourth, the psychological harm must be caused by a shock. This is ‘the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind’.40 Hence, gradually developing psychiatric illnesses do not give rise to a right to compensation for secondary victims.

Th is requirement implies that for a duty of care to be established it is not only the seriousness of the harm that is relevant but also the way the harm has occurred. From a medical point of view, it is doubtful whether mental harm can only be suffered (and hence need to be compensated) in the case of a shock-induced medical condition by witnessing an accident or its immediate aftermath.41 Although the mental impact will be more obvious in these situations, it is possible that a relative can suffer mental harm without having been a witness. Fleming wrote that in this respect, ‘the law is short on principle and predictability. It is a compound of compassion and fear of opening the floodgates of indeterminate liability.’42

criterion). In McFarlane v E.E. Caledonia [1994] 2 All ER 1, the Court of Appeal rejected the idea of liability of mere bystanders altogether.

37Th e television broadcast pictured people closely enough for them to be identified. The current Broadcasting Code bans depiction of the suffering of recognizable individuals.

38McLoughlin v O’Brian [1983] AC 410; Lunney and Oliphant (2010), 339–342. Markesinis and Deakin (2008), 139–157; Winfield and Jolowicz (2010), para. 5.66.

39In Atkinson v Seghal, The Times, March 2003, the Court of Appeal extended the immediate aftermath to the moment a mother had left the mortuary an hour and a half after the accident where she had witnessed the disfigured body of her daughter. Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792, ETL 2002, 157 (Oliphant), concerned a woman witnessing her baby son suffering for 36 hours from severe brain damage caused by a major epileptic seizure, which the hospital had wrongfully failed to prevent. The Court of Appeal considered the full 36 hours as being the immediate aftermath causing the mother’s ‘shock’.

40Lord Ackner in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Lunney and Oliphant (2010), 346.

41Th e Law Commission Report, Liability for Psychiatric Illness (1998), para. 5.23, quoted the Royal College of Psychiatrists Mental Health Law Group: ‘For psychiatrists the “shock-induced” requirement causes serious problems. The term is vague, has no psychiatric meaning and is emotively misleading. The requirement should be abandoned.’

42Fleming, The Law of Torts, 9th edn. (Sydney: Law Book Co., 1998), 178. See also the Law Commission’s Consultation Paper No. 137 (1995), para. 5.6 and Law Commission Report No. 249 (1998), paras. 6.5–6.9.

Finally, ‘the defendant should have foreseen injury by shock to a person of normal fortitude or “ordinary phlegm” ’.43 In other words, it must have been foreseeable that a person of normal fortitude would develop psychiatric injury in the circumstances of the case. As Lord Wright said, ‘I think, a reasonably normal condition, if medical evidence is capable of defining it, would be the standard.’44

705-5 RESCUERS

Not only family members can be witnesses to an accident or its aftermath but, obviously, also rescuers, including police officers. A striking similarity between German and English law can be found in respect of the liability for mental harm suffered by rescuers.

In English law, the leading case is White v Chief Constable of South Yorkshire, handed down in 1998, one of the cases following the Hillsborough disaster (Section 705-4).45 The case was brought by police officers who had not been directly involved in trying to remove spectators from the pens, or trying to resuscitate them but had attended at the scene to assist in other ways. They claimed compensation from their employer for damage suffered as a result of post-traumatic stress disorder caused by being confronted with the horrific scenes of people being crushed to death. In Alcock, it was suggested (but not held) that rescuers could be considered to be primary victims to whom a duty of care is owed. However, in White, the House of Lords made clear that rescuers only qualify as primary victims if they have been in the zone of foreseeable physical danger, or reasonably believe that they were.46 If not, they can only qualify as secondary victims if they satisfy the extra requirements set out in Alcock (Section 705-4), which in practice will be highly unlikely, if only for the requirement of a close tie of love and affection between the rescuer and the primary victim.47

Nine years later, the German BGH had to decide a rescuers case and came to virtually the same conclusion: rescuers such as police officers only have a right to compensation for mental harm if they were directly involved in the accident. The case concerned two

43Lord Lloyd in Page v Smith [1996] AC 155 (HL); Lunney and Oliphant (2010), 351–357.

44Lord Wright in Bourhill v Young [1943] AC 92, 110; Lunney and Oliphant (2010), 129–132; Markesinis and Deakin (2008), 145. See also The Wagon Mound (No. 1) [1961] AC 388, on which see Section 1104. See also

Rothwell v Chemical Insulating (Pleural Plaques) [2008] 1 AC 281 (HL).

45White v Chief Constable of South Yorkshire [1998] 3 WLR 1510; Lunney and Oliphant (2010), 357–362; see also Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (HL).

46Chadwick v British Transport Commission [1967] 1 WLR 912: a man became depressed after helping out in the aftermath of the Lewisham train disaster in 1957. He was in hospital for six months and was awarded damages for misery and discomfort. This case would now be dismissed following Alcock and White. In McFarlane v E.E. Caledonia [1994] 2 All ER 1 (CA), the Court of Appeal held that acts of assistance of a peripheral nature are not sufficient to make the claimant a rescuer.

47See on such a coincidence Greatorex v Greatorex [2000] 1 WLR 1970: a fire officer was called to the scene of a car accident in which his son was injured through his own negligence. The father sued his son for the posttraumatic stress disorder he consequently suffered. It was held that if a person injures himself and his close relative sustains psychological injury, the relative’s claim should be dismissed ‘as it would be potentially productive of acute family strife’ (Cazelet J). See also Basil Markesinis, ‘Foreign Law Inspiring National Law: Lessons from Greatorex v Greatorex’, CLJ 2002, 386.

police officers, one of whom witnessed a horrific road traffic accident and the other who arrived at the scene moments later. Both suffered from post-traumatic stress disorder. The BGH dismissed their claim for compensation against the (liability insurer of the) driver who was liable for the accident. The court acknowledged that the police officers suffered from a recognized medical illness but held that they did not fall within the protective scope of § 823 I BGB and § 7(1) StVG (Road Traffic Law). The reason was that they were neither involved in the accident nor close family members of the primary victims. In fact, they were merely coincidental witnesses of an accident and therefore had to bear the consequences as part of the general risks of life.48

It is likely that both the English and German decisions were driven by the desire to keep the floodgates closed. This may partly concern the fact that the cases dealt with professional rescuers, as it is their task to assist in accidents, including those with severe consequences. This argument is, however, unconvincing. Neither is it a convincing argument that rescuers are usually covered by an occupational insurance scheme. The point is that the courts reject claims from people who suffer from a recognized medical condition caused by an accident where it was entirely foreseeable to the tortfeasor that this may happen, particularly if the consequences of the accident are severe. Obviously, rescuers usually belong to a group of people who are more robust than the average person. However, it cannot be expected that they should be on tenterhooks under every circumstance, more so when they work in the interests of others and their salaries are usually not a reflection of the risks they run. The limited approach of the German and English courts in this respect may therefore not appeal to everyone’s sense of justice.

705-6 ANXIET Y

A special category of mental harm is anxiety for something that may, but not necessarily will, happen. For example, anxiety caused by the possibility of being infected with HIV such as through a blood transfusion, rape, or a bite. In such a case, the victim has to wait for some time to know for certain whether he or she is infected. The national courts take different approaches to whether to grant compensation for anxiety as a form of mental harm. Tort law protection against the consequences of serious anxiety is only at the beginning of its development.49

A French example concerned a case of defective pacemakers. The manufacturer stopped marketing the particular model and recommended that patients who had the pacemaker implanted were subjected to more frequent checks. A woman who could not face the prospect of living with a life-threatening device, had it removed during a different surgical procedure that she already had to undergo. The pacemaker appeared not to be defective but the patient sued the manufacturer for compensation for shock and stress after discovering the risk that the pacemaker was defective. The Cour de

48BGH 22 May 2007, JZ 2007, 1154, ETL 2007, 291 (Fedtke).

49Von Bar (2000), N 61 with further examples including Wilkinson v Downton [1897] 2 QB 57 on which see Section 504-5.

cassation held that the patient had to undergo surgery in any event and that the probe was not defective, therefore the pecuniary damage was purely hypothetical. However, the court also held that damages for non-pecuniary loss could be awarded for the stress and anxiety caused by a defective product.50 In another case, the Cour de cassation also allowed compensation to be awarded for anxiety caused to employees who had been exposed to asbestos but had not developed any asbestos-related illnesses.51 Th e anxiety has to be triggered by an existing circumstance, here the extensive exposure to asbestos.

In the English Pleural plaques case (Section 704), the House of Lords took a different view. The case concerned employees who suffered psychiatric illness after they were diagnosed with pleural plaques as a consequence of being exposed to asbestos. The court held that it was not reasonably foreseeable that the employees would suffer such a psychiatric illness because of the employer’s breach of duty.52 In this case, it was clear that the employees had been in the zone of danger and that they had developed a recognized psychiatric illness. Therefore, they could be considered to be primary victims (Section 705-1), but the House of Lords dismissed their claim because it took the view that the pleural plaques as such did not amount to physical impairment and thus actionable damage. It can be argued that the case is at odds with Page v Smith. Indeed, in Pleural plaques, two Law Lords actually reserved their opinion on the correctness of Page v Smith.53 On the other hand, once a physical impairment is established (eg after the diagnosis of mesothelioma), the English courts (like other national courts) award compensation for non-pecuniary loss that includes the anxiety caused by the sudden reduction of life expectancy.54

If someone lives in anxiety waiting for something negative to happen, he may be able to assess the risk and prevent it from happening. Think, for example, of the woman in the French case mentioned earlier who would have undergone surgery solely for the purpose of removing the pacemaker. Particularly if the risk is higher than the costs of preventing it from happening, there is a strong case for accepting a claim for compensation for such preventive measures from the person liable. One could argue that this might deter companies from disclosing risks in their products but they are in any event obliged to do so under the Product Safety Directive (Section 1406). Most national

50Civ. 1re 19 December 2006, JCP 2007. II. 10052, note Hocquet-Berg, RTD Civ. 2007, 352, obs. Jourdain, ETL 2006, 282 (Moréteau). This is in line with the Product Liability Directive, which leaves it to national law to provide for ‘pain and suffering and other non-material damage’ (see Section 1409).

51Soc. 11 May 2010, Bull. soc. V. 206, ETL 2010, 188 (Moréteau).

52Rothwell v Chemical & Insulating Co. Ltd, Re Pleural Plaques Litigation [2007] UKHL 39, ETL 2007, 239 (Oliphant). See also the case notes by Miquel Martín Casals, Sébastien Beaugendre, Faro Sobczak, David Townend, Gerrit van Maanen, Albert Azagra, Anton Dulak, Bajrte Askeland, and Nadia Coggiola, ERPL 17 (2009), 177–247.

53At [52] per Lord Hope and [104] per Lord Mance.

54See eg Bell v Secretary of State for Energy & Climate Change [2012] EWHC 145 (QB), a mesothelioma case. See on cases of work-related stress eg Hatton v Sutherland [2002] 2 All ER 1, ETL 2002, 155 (Oliphant); Lunney and Oliphant (2010), 363–370; Rahman v Arearose Ltd [2001] QB 351. See also Winfield and Jolowicz (2010), para. 5.71.

courts are reluctant to allow compensation for preventive measures. In this respect, Article 2:104 PETL seems to be leading rather than following the courts in Europe by stating: ‘Expenses incurred to prevent threatened damage amount to recoverable damage in so far as reasonably incurred.’

705-7 COMPARATIVE REMARKS

Whereas German and English law limit the right to compensation to infringements of mental health in a strictly medical sense, French law takes a more liberal position. It does not require that the victim suffer from a medically acknowledged psychological condition or that he be a witness to an accident. All forms of mental harm caused by the death or severe injury of another person, including natural grief, are eligible for compensation. French case law uses the requirement of causation as a control mechanism by requiring that the damage is direct and certain.55

Whether someone suffers from a mental illness, as is required in German and English law, will generally be for an expert to assess and to advise the court. In 1994, psychiatric diagnoses were categorized in the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association. Better known as DSM-IV, this manual covers all mental health disorders and also lists known causes of these disorders and statistics in terms of sex and age.56

Over the past century, psychology and psychiatry have made considerable progress but there are still uncertainties as to the assessment of psychological harm. It is also well known that certain psychological problems can be simulated or exaggerated. Although this may be true, it cannot be decisive. Problems of simulation and exaggeration also occur in cases of physical harm, for instance in relation to back injuries, but this argument is never used to dismiss a claim for damages for this type of injury.

Th e differences between the legal systems can be well illustrated by referring to Article 2:201(2)(b) DCFR and Article 10:202(1) PETL. Both proposals pretend to have found a European compromise by virtually copying the German rule and requiring that mental harm needs to amount to a medical condition or a recognized illness, but that it is not required to have been a witness to the accident or its immediate aftermath.

Th is compromise would imply that English law needs to remove the witness requirement and French law needs to introduce the requirement of a medical condition. This is, indeed, a balanced compromise but not one that will be easily acceptable to both England and France. France would prefer to continue to cherish its liberal and flexible approach, whereas England would fear an avalanche of claims.

Developing the law in this area is primarily a task for the courts, as it is unlikely that a legislator will step in to regulate these matters. All legal systems accept that mental harm is legally relevant damage, which implies that the right to mental health

55Civ. 2e 22 February 1995, D. 1996. 69, comm. Chartier and Cour d’appel Paris 10 November 1983, D. 1984. 214, on which see Van Gerven (2000), 118–119. Terré-Simler-Lequette (2009), nr 700–703.

56Th e fifth edition will be published in 2013: see <http://www.dsm5.org>.