Nervous Shock - Summary Law PDF

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Nervous Shock....

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Nervous Shock The Tort Nervous shock is a psychiatric illness or injury inflicted upon a person by intentional or negligent actions. It is a “special” form of negligence where duty, breach and damage apply. All victims of Nervous Shock must have… A recognised psychiatric condition illustrated in the case – Reilly v Merseyside Regional Health Authority    

A couple became trapped in a lift as a result of negligence. As a result they suffered from insomnia and claustrophobia. Principle: because both insomnia and claustrophobia isn’t a recognised medical condition their claim failed as anyone can claim they have these two conditions. Claim failed

Injury must be from a single, shocking event illustrated in the case – Sion v Hampstead Health Authority

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Claimant’s son suffered from a motorcycle injury where doctors failed to diagnose him. His condition deteriorated and he was placed into intensive care and unfortunately died 14 days after. The claimant remained beside his son and as a result suffered psychiatric injury witnessing his son’s gradual death. Principle: Claimant failed as the court held that it must be a single shocking event and the gradual death over 14 days isn’t. Claim failed

Foreseeable risk of harm illustrated in the case – Bourhill v Young    

Pregnant wife stepped off a tram and following heard the impact of a crash involving a motorcyclist. Later seeing blood on the road she gave birth to a still born baby. Principle: The House of Lords held that as a stranger to the motorcyclist, she was outside the area of foreseeable shock and her claim failed. Claim failed

After the criteria is met the victims are differentiated into primary and secondary categories. Primary Victims Primary victims traditionally included those who were present at the scene, and may suffer physical injury or their own safety was threatened. All primary victims must have… Physically injured themselves in the incident illustrated in the case – Page v Smith    

Page was involved in a car accident caused by the defendant’s negligence. Although he suffered no physical injury he suffered a recurrence of “chronic fatigue syndrome” which he suffered some years before. The courts held that the defendant was liable for psychiatric injury. Claim was successful

A foreseeable risk of injury to themselves illustrated in the case – Dulieu v White & Sons

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A woman suffered nervous shock after a horse and van negligently burst through the pub windows. She was able to recover damage because she had been put in fear for her own safety. Claim was successful

Secondary Victim – Alcock Criteria Definition: A person who is present at the scene of an event and who is injured as a direct result of witnessing the event. The law sets out certain requirements for a successful claim by a secondary victim outlined in Alcock v Chief Constitution of South Yorkshire. All secondary victims must apply to the test of... Dearness – close tie of love and affection for example; parent, child and spouse. Case: Hambrook v Stokes    

A woman recovered damages when she witnessed a lorry going downhill where she had left her children. She later then heard there had been an accident involving children. The court held that it would be unfair not to compensate a mother who feared the safety of her own children. Claim was successful

Nearness (proximity) of a two hours’ time limit Case: McLoughlin v O’Brian    

A woman was summoned to hospital after her children and husband was involved in a car crash. One child was dead, and two were badly injured and had not been cleaned up yet. The courts held since the relationship was sufficiently close and she was present at the immediate aftermath she should claim. Claim was successful

Hearness – must witness the event with own unaided senses. Case: Alcock v Chief Constitution of South Yorkshire       

Police permitted a large crowd of supporters all into one caged pen. 95 of those suffered crushed injuries and were killed which was all aired on live TV. As thousands had tuned in a number of claims were made from friends and family. All claims were denied by the courts and identified factors which determined a claim which are: The dearness of the relationship to the victim of the incident. The proximity of the time and space of the incident. And lastly the cause of the nervous shock.

Rescuers/Bystanders The law has always made a fine distinction between those who are rescuers, and those who are merely bystanders whom have no claim. Case: White v Chief Constable of south Yorkshire 

Police officers who claimed to have suffered from PTSD following their part in the rescue of the Hillsborough disaster were denied by THOL.

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The reasoning seems to be that they did not put themselves at risk and that public policy prevented them from recovering when the relatives of the deceased in the disaster could not. Claim failed

Hale v London Underground (Rescuer)   

A fireman who had been involved in the rescue at the Kings Cross. Later on was diagnosed with Post Traumatic Stress Disorder and recovered damages for nervous shock. Claim was successful

Chadwick v British railway board   

When 2 trains crushed in a tunnel a man who lived nearby was asked to go in as he was small and give injection to the trapped passengers. He claimed for NS as he suffered anxiety neurosis. There was reasonable foresight that someone might try to say passengers. Claim was successful

Restrictions Fear of fake claims as well as a fear of opening floodgates. Case: Victoria Railway Commissioners v Coultas 

Psychiatric injury resulting from a train crash isn’t liable because of the “floodgate” argument.

Anomalous cases: Case Inconsistency Can be used in A02 to compare cases Case: Attia v British Gas    

A woman witnessed her house burning down which she then successfully claimed for nervous shock. The claim was said to be reasonably foreseeable as the contractors had installed the heating incorrect. However it to be inconsistent even though the tests applied a house is not a close tie of love and affection it is merely an object. If siblings cannot claim for their nervous shock why a house must be excusable.

Owens v Liverpool Corporation     

Here relatives of a deceased person recovered damages for NS where the coffin fell out of the hearse that they were following. One restriction on this development was to prevent a party from recovering who was not with in the “area of impact.” Also there claiming NS from a dead person who could not really be in any danger as they’re dead. Can be compared to Alcock where they denied NS to relative and many people. Case was successful.

W v Essex    

Foster parents wished to foster another child, and explicitly told the council that they did not want a child who had been, or was suspected of being, a child abuser The child who they subsequently fostered abused the existing foster children in the house The issue was that Could the parents be said to have been part of the immediate aftermath of the abuse incidents, could they recover for their concerns and resulting mental injury The reasoning was that the categories of primary and secondary victims are not fixed It is arguable whether the parents could be classed as primary victims, trial should proceed

Restrictions of a Secondary Victim           

There is a 2 hour time limit EXACT so if the victim is present at the immediate aftermath 5 minutes pass that time limit there will be no valid claim. This is unfair, because that victim would have still suffered the same Nervous Shock 5 minutes does not make the slightest difference. The mother in McLoughlin v O’Brian I would consider her fortunate as she was able to successfully claim. Another restriction is having to prove the dearness of the relationship illustrated in the case Alcock v Chief Constitution of South Yorkshire. There is an apparent relationship there for a claim though in fact all the cases were denied. This is unfair on the victim, and the law drawing in quiet harsh from my point of perspective. The Alcock test is also quiet harsh on siblings as they too are not allowed to claim for their nervous shock though the gap in the law is in the case Attia v British Gas. The woman was able to successfully claim for nervous shock for a house of bricks which is bigoted as siblings are not allowed to claim. This creates inconsistency in the law, produces unreliable results and lastly creates doubts to inconsistency. In relation to valid claims in the case Victoria Railway Commissioner v Coultas even though he has a valid claim, because of the “flood gate” argument his claim was denied. This is unfair as this individual did suffer nervous shock though didn’t have the sufficient grounds to prove so because of the “flood gate” argument....