In this piece of coursework, I will seek to establish when adefendant may claim for nervous shock. Aim to examine the provisions which lawuses to determine what category the claimants fall under when claiming fornervous shock.
(Primary or secondary)When establish the defendant’s liability in negligence thedefendant must inflict nervous shock or psychiatric damage. In establishing the defendant’s liability, itis a requirement that the defendant responds in a traumatic manner due to anevent caused by the defendant. Psychiatric harm is a form of personal injury.In regards to psychiatric injuries it must be noted that claims fall under aprimary and secondary victim category. Lord Oliver explained this in the caseof 1’those cases in which the injured plaintiff was involved, either mediately orimmediately, as a participant(Primary), and those in which the plaintiff was nomore than a passive and unwilling witness of injury caused to others.
‘(Secondary) Historically when thecourts dealt with psychiatric injuries they focused on the way harm tends to becaused by an ‘assault on an individual’s mind or senses rather than physicalimpact on the claimant’s body’, which gives us an understanding of liabilityrelating to nervous shock. Due to policy issues being raised by psychiatricinjuries the courts now take into account the type of harm suffered by theclaimant as opposed to the type of harm suffered. According to the case of2’even though the risk of psychiatric illness is reasonably foreseeable, the lawgives no damages if the psychiatric injury was not induced by shock.
Psychiatric illnesses caused in other ways,such as the death of a loved one, attracts no damages.’ Not possible to claim3for grief, anxiety or distress’. Control mechanism only apply to secondaryvictims have been put into place by courts to restrict recovery for negligentlyinflicted psychiatric harm (this is due to the high proportion of sham claimsand doubts in regards to causation. For a duty of care to be established in thecase of primary victims they must satisfy the Caparo test4’an example of the scope of duty of care can be seen in Case of Carparo v Dickmanin which the judge developed a three stage test; A) The harm caused by thenegligent actions must be reasonably foreseeable; B) the relationship betweenthe parties to the dispute must one of reasonable proximity and C) it must befair, reasonable and just to impose liability. In the case of5the House of Lords rejected her claims on the basis that her injuries were notforeseeable, that as a pregnant woman she was susceptible to shock. Andrew would be regarded as a secondary victim this is wherepsychiatric injury occurs a result of witnessing someone else being harmed orendangered.
When claiming damages as a secondary victim; claimant must showthat the psychiatric harm suffered was reasonably foreseeable in a person ofordinary fortitude in the same circumstances. This is demonstrated in 6Bourhillv Young. The claimant who was eight months pregnant had witnessed an accident,she had not actually seen the accident but had heard it and seen the motoristblood on the pavement. She claimed to have suffered psychiatric injuries. Houseof Lords rejected her claim on grounds that her injuries were not foreseeable.
The modern approach towards secondary victims wasestablished in the case of7in which the claimant suffered psychiatric harm after hearing upon ‘ immediate aftermath’ that her children andhusband had been involved in a serious car accident which resulted in herdaughter losing her life and her other children and husband being injured. Shehad arrived at the accident two hours later and was going through the mostextreme of circumstances which would go beyond mere sorrow or grief. The houseof lord had first rejected her claim on the basis that she was two miles awayfrom the accident and didn’t know about it until two hours later, she was notentitled to recover damages for nervous shock. However the defendant hadappealed and the court had said ‘ that the nervous shock assumed to have beensuffered by the plaintiff had been the reasonably foreseeable result of theinjuries to her family caused by the defendants’ negligence; that policyconsiderations should not inhibit a decision in her favour; and that,accordingly, she was entitled to recover damages’8.1Alcock v Chief Constable of South Yorkshire (1992) 22 ALCOCK AND OTHERS APPELLANTS AND CHIEF CONSTABLE OF SOUTHYORKSHIRE POLICE RESPONDENT – 1992 1 A.C. 3103 Hicksv Chief Constable of the South Yorkshire Police 1992 1 All ER 6904 CaparoIndustries plc v Dickman and others – 1990 1 All ER 5685 Bourhill v Young1943 AC 92(HL)6Bourhill v Young1943 AC 92(HL)7 MCLOUGHLINAPPELLANT AND O’BRIAN AND OTHERS RESPONDENTS – 1983 1 A.
C. 4108Mcloughlin Appelant and O’BRIAN AND OTHERS RESPONDENTS-1983 1 A.C. 410