{"id":475,"date":"2019-03-01T14:18:10","date_gmt":"2019-03-01T14:18:10","guid":{"rendered":""},"modified":"2019-06-07T12:58:40","modified_gmt":"2019-06-07T12:58:40","slug":"nervous-shock-tort-law-0585","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/tort-law\/nervous-shock-tort-law-0585.php","title":{"rendered":"Psychiatric Injury Claims in Tort Law"},"content":{"rendered":"

After witnessing a tragic accident, it is possible to experience an extreme and traumatic response that can have a long-term impact upon the life of an individual. The psychological illness obtained from such an incident is commonly called psychiatric injury, or previously known to the courts as \u2018nervous shock\u2019.[1]<\/a> Nervous shock can appear in the form of depression, PTSD, chronic pain syndrome or panic disorder etc.[2]<\/a> However it can also be the physical reaction to the shock as seen in Bourhill v Young (1945)<\/a>.<\/em>[3]<\/a> Psychiatric injury is a newly developed, incremental extension of the law and therefore has to be addressed separately. Claims prior to the 20th<\/sup> century held little weight as they lacked proof that an individual was genuinely suffering from shock. However, due to recent medical developments it is far easier to assess someone\u2019s mental state.[4]<\/a> Further issues had arisen in the early development of this area of law as it allows the opening of the \u2018floodgates\u2019. Because of this, it was necessary to put in place a set of \u2018guidelines\u2019 that identified who is eligible for compensation and who is not. Applying this information, this essay is designed to advise the parties affected by the negligence of the track inspection and repair company and show the strengths and limitations to the tort of nervous shock. <\/p>\n

When assessing whether a person is eligible to claim for psychiatric injury<\/a>, it is crucial to identify whether they are a primary or a secondary victim. Page v Smith (1995)<\/em> [5]<\/a> is used to recognise primary victims. Here, the plaintiff was involved in a car accident that caused them little physical damage but consequently led them to relapse from myalgic encephalomyelitis. Lord Keith and Lord Jauncey held that personal harm was \u201creasonably foreseeable\u201d [6]<\/a> in this case, regardless of whether the harm was physical or psychological. Hedley describes this foreseeability as the \u201czone of danger\u201d, the extent of which is decided by the courts.[7]<\/a> As a result, individuals who are directly involved in an accident and subsequently injured \u2013 be it physically or psychologically – are classed as primary victims and therefore are easily able to claim. <\/p>\n

The issue arises when seeking
\ncompensation for secondary victims. These types of victims are not directly
\ninvolved in the accident but are
\naffected by it.[8]<\/a>
\nAs stated previously, in order to avoid \u2018floodgates\u2019, secondary victims have to
\nmeet the criteria set out in the Hillsborough litigation Alcock v Chief Constable of South Yorkshire (1991)[9]<\/strong><\/a><\/em>
\nin order to identify whether they were owed a duty of care. Initially, Jones v Wright (1991)[10]<\/strong><\/a><\/em>
\nassessed claimants on a two-part basis: \u201cFirst, the necessary degree of
\nrelationship between the claimant and the person in danger. Second, the
\nquestion of geographical proximity to the event.\u201d However, this only included a
\nparent \u2013 child relationship, meaning many cases were rejected. It also failed
\nto include people who witnessed the direct aftermath of the event, deeming only
\nthe people present in or outside the stadium within \u201cgeographical proximity.\u201d This
\nwas replaced by Alcock <\/em>where
\nsecondary claimants had to prove reasonable foreseeability, in alignment with
\nLord Wilberforce\u2019s statement in McLoughlin
\nv O\u2019Brian (1983)[11]<\/strong><\/a>,
\n<\/em>and have a medically evidenced psychiatric injury. They further had to have
\nsufficient \u201cproximity and time\u201d
\nto the incident[12]<\/a>
\nand have a \u2018close relationship\u2019 to the injured.[13]<\/a> All
\nfour requirements have to be proven in order to make a claim. This was more
\neffective in finding justice for the victims as it widened the boundaries. The
\njournal of Personal Injury Litigation in their commentary on Page v Smith
\n(1996), described such restrictions upon secondary victims being \u201c\u2026solely as a
\nfloodgates mechanism.\u201d[14]<\/a> However,
\ncould be seen as harsh as many people who were affected by the events of the
\nHillsborough failed on at least one element of the test. <\/p>\n

Catalina is a primary victim as she was
\ndirectly present at the crash and therefore exposed to the risk of physical
\ninjury. On the grounds of Page v Smith
\n(1996),[15]<\/strong><\/a>
\n<\/em>it is reasonably foreseeable that due to the negligent maintenance of the
\ntrack, the train would crash and harm those waiting at the platform. As Catalina
\nwas on the platform at the time of the accident, it would be reasonably
\nforeseeable for her to protect herself \u2013 in this instance in the form of diving
\nfor protection, thus showing that she is owed a duty of care. The action of
\n\u201cdiving\u201d shows that Catalina feared for her own safety. In this way, the case
\nof Dulieu v White (1901)[16]<\/strong><\/a>
\n<\/em>shows us that a person is eligible for damages if they are worried about
\nthe impact the accident may have on them. In White (1901), Justice Kennedy
\nstated that \u201cThe shock, where it operates
\nthrough the mind, must be a shock which arises from a reasonable fear of
\nimmediate personal injury to oneself<\/em>.\u201d[17]<\/a>
\nApplying this to Catalina, the train crashing into the platform would cause
\nfear of \u2018immediate personal injury\u2019 and therefore the depression obtained from
\nsuch an event would be sufficient enough injury to claim. <\/p>\n

Darnell may be considered a secondary victim and therefore would have to comply with the regulations set in Alcock <\/em>in order to be successful in his claim. Comparing Darnell to the claimant in Dooley v Cammell Laird (1951),[18]<\/strong><\/a><\/em> Darnell may be successful as he feared for his wife\u2019s safety; similar to the claimant\u2019s fear for their co-worker\u2019s safety in Cammel Laird (1951)<\/em>. Darnell also has a \u201cclose relationship\u201d[19]<\/a> to the injured which may be sufficient enough to claim in particularly horrific accidents according to Lords Ackner, Keith and Oliver.[20]<\/a> <\/p>\n

Despite this, however, Darnell lacks \u201cproximity and time\u201d which is imperative when claiming as a secondary victim according to the requirements of Alcock. <\/em>Due to the fact that Darnell merely witnessed the accident on the television, it is likely that he would fail in a claim as he was not physically present at the incident, nor did he turn up afterwards and experience the impact. Persons affected by the Hillsborough disaster but not present at the match were considered \u201c…not in proximity to the events and would not have suffered shock in the sense of a sudden assault on the nervous system.\u201d[21]<\/strong><\/a><\/em> Furthermore, television companies are not allowed to broadcast accidents where individuals can be identified as this would be classed \u2018novus actus interveniens.\u2019[22]<\/strong><\/a><\/em> Darnell would not have watched his wife directly suffer on television thus not witnessing the event with his own senses. As a result, Darnell would not able to claim for damages with respect to psychiatric injury. This may be seen as harsh as Darnell nevertheless feared for his wife knowing she was on the train at the time of the crash. It could further be argued that Darnell experienced the accident with his eyes and ears, regardless of whether this was through the television. <\/p>\n

Joy
\nmight make a claim as it could be argued that she fits the requirements of Alcock<\/em> with the \u2018close relationship\u2019 of
\nbeing the mother of a victim. Joy also may have the required proximity and time
\nas, although she was not at the stadium during the incident, she witnessed her
\ndaughter\u2019s corpse only four hours after. McLoughlin
\nv O\u2019Brian (1983)<\/em> added another incremental extension to the law whereby one
\ncould still witness an event with their own senses \u2018two hours\u2019 afterwards.[23]<\/strong><\/em><\/a>
\nUnlike Darnell, Joy witnessed what could be deemed the \u2018immediate\u2019 aftermath
\nwith her own senses and not through a third party, meaning she may have grounds
\nto claim. This is similar to Galli-Atkinson
\nv Seghal (2003) <\/em>where the immediate aftermath was \u201c\u2026extended from the
\nmoment of the accident until the claimant left the mortuary.\u201d [24]<\/strong><\/a>
\n<\/em>This was because there was a continued chain of events that could be
\nlikened to Joy\u2019s experience as there was little time from when she was told
\nabout the accident to when she saw her daughter\u2019s body. In the case commentary
\nof McLoughlin<\/em>, M Owen notes that
\n\u201c\u2026the mother\u2019s motivation in going to the hospital was similar to that of a
\nrescuer.\u201d[25]<\/a>
\nIn this way, it may be reasonably foreseeable that Joy would have attended the
\nmortuary after the incident and therefore it should be irrelevant how long it
\ntook her to get there. <\/p>\n

In contrast,
\nhowever, it is probable that Joy would fail in her claim as the courts take a
\nfirm approach to the amount
\nof time after an accident that can be classed as the immediate aftermath. According
\nto Lord Ackner in McLoughlin (1983) <\/em>and
\nLord Keith in Alcock (1991)<\/em>, the
\nimmediate aftermath only extends to two hours, anything thereafter is no longer
\nimmediate. Taking this into account, arriving four hours after the event would
\nnot be sufficient enough to claim. This is supported by Berisha v Stone Superstore (2014)[26]<\/strong><\/a><\/em>
\nwhere it was not acceptable to appear five hours after an incident. This is
\nanother successful strategy of the courts to avoid the \u2018floodgates\u2019 and
\nfraudulent claims. However, this is criticised as Joy fulfils the requirement
\nof a \u2018close relationship\u2019 and experienced the aftermath with her senses,
\nwhether this be immediately after or not. <\/p>\n

Randy
\nmay be able to claim as a rescuer, which is a secondary victim that experiences
\nshock from assisting primary victims in an accident. Here, Randy may be seen as
\n\u2018rescuing\u2019 by handing out bottles of water and blankets. The courts take the
\nview that it is within public policy to support such conduct and therefore
\nrescuers may be more likely to succeed in their claims.[27]<\/a> It is
\nalso reasonably foreseeable that someone would attempt to provide aid to people
\nsuffering as seen in Chadwick v British
\nRailways Board (1967)<\/em> because \u201cdanger invites rescue.\u201d[28]<\/a> However
\nit is argued that volunteering to help others affected by an accident should
\nnot allow for compensation because the rescuer has to objectively expose
\nthemselves to danger and therefore should accept the consequences of this. Randy
\nmay also fit the \u2018proximity\u2019 requirement set in Alcock<\/em> as he appeared at the scene only \u201ca few minutes after the
\ncrash\u201d and therefore would have experienced the direct aftermath of the
\nincident, unlike Joy who arrived four hours after. <\/p>\n

Regardless of this, it is likely that Randy would not be able to claim as a rescuer as he only handed out \u201cbottles of water and blankets.\u201d This was not seen as sufficient enough in McFarlane v Wilkinson (1997)[29]<\/strong><\/a><\/em> whereby the claimant suffered nervous shock after handing out blankets to those affected by an exploded oil rig. The courts found that rescuing requires a more active role and that merely handing out blankets did not constitute as rescuing. Applying this, as Randy did little to assist the injured, it is likely that he would not be able to claim. If Randy had pulled people out of the wreck, risking his own safety, then the courts might have reconsidered. Tilley observes that there should be a distinction between those that are \u201cactively helpful\u201d and others being \u201cghoulishly curious.\u201d[30]<\/a> Randy could have witnessed the commotion while driving past and been inquisitive, but being dragged to help as a result. This would not make him eligible to claim.  <\/p>\n

Finally, it is likely that Crashback Ltd
\nwould not be able to claim for damages of psychiatric injury as no one was hurt
\nwith regards to the caf\u00e9. However, it is reasonably foreseeable that if a train
\ncrashes into a platform, it will hit the caf\u00e9 located at said platform. We can
\nglean from the case of Spartan Steel
\n& Alloys Ltd v Martin & Co Ltd (1973)[31]<\/strong><\/a><\/em>
\nthat the caf\u00e9 should be entitled to damages, including payment of staff during
\nthe rebuild and loss of goods, caused by the negligence of \u2018The Rocket\u2019. <\/p>\n

In conclusion, it is obvious that the
\nlaw regarding psychiatric injury is very strict and often harsh for secondary
\nvictims. This is seen in the scenario as only Catalina would be eligible to
\nclaim as a primary victim. However, due to the requirements of Alcock<\/em>, Darnell has the relationship to
\nthe victim but was not present in time and space and Randy\u2019s attempt at
\nrescuing would not be accepted by the courts. Although the failure of both of
\nthese claims seem harsh, Joy\u2019s claim appears particularly unfair as she
\nfulfilled all of the requirements of Alcock<\/em>
\nexcept proximity, which she missed by a mere two hours. However, this is obviously
\nan effective way of avoiding the opening of the floodgates. <\/p>\n

Bibliography<\/h2>\n

Books: <\/h3>\n

J Cooke, Law of Tort<\/em> (13th<\/sup> Edn. Pearson Education Limited 2017)<\/p>\n

C Elliot and F Quinn, Tort Law <\/em>(8th<\/sup> Edn. Pearson
\nEducation Limited 2011)<\/p>\n

Law Reports:<\/h3>\n

Case Comment \u201cTest of Foreseeability \u2013
\nprimary victim \u2013 damage of same kind\u201d Journal
\nof Personal Injury Litigation <\/em>(1995) 155 \u2013 158<\/p>\n

S Hedley \u201cNervous Shock: Wider Still and
\nWider?\u201d The Cambridge Law Journal <\/em>(1997)254
\n– 257<\/p>\n

M Owen \u201cNegligence \u2013 Nervous shock\u201d The Cambridge Law Journal <\/em>(1983) 41-43<\/p>\n

J Tilley \u201cThe Risk of Shocking the
\nRescuer\u201d Cambridge Law Journal <\/em>(1967)
\n157-160<\/p>\n

\n

[1]<\/a> C Elliot and F Quinn, Tort Law <\/em>(8th<\/sup> Edn. Pearson
\nEducation Limited 2011)38<\/p>\n

[2]<\/a> J Cooke, Law of Tort<\/em> (13th<\/sup> Edn. Pearson Education Limited
\n2017)68-69<\/p>\n

[3]<\/a> Bourhill
\nv Young <\/em>[1945] AC 92<\/p>\n

[4]<\/a> Ibid 68<\/p>\n

[5]<\/a> Page
\nv Smith<\/em>
\n[1996] AC 155, [1995] 2 All ER 736<\/p>\n

[6]<\/a> Ibid<\/p>\n

[7]<\/a> S Hedley \u201cNervous Shock: Wider Still
\nand Wider?\u201d The Cambridge Law Journal <\/em>(1997)254<\/p>\n

[8]<\/a> Cooke (n 2) 71<\/p>\n

[9]<\/a> Alcock
\nv Chief Constable of the South Yorkshire Police <\/em>[1991] 4 All ER 907<\/p>\n

[10]<\/a> Jones
\nv Wright <\/em>[1991] 2 WLR 814 (QBD); [1991] 3 All ER 88 (CA)<\/p>\n

[11]<\/a> McLoughlin
\nv O\u2019Brian <\/em>[1983] AC 410<\/p>\n

[12]<\/a> Elliot and Quinn (n 1) 43<\/p>\n

[13]<\/a> Alcock
\nv Chief Constable of the South Yorkshire Police <\/em>[1991] 4 All ER 907<\/p>\n

[14]<\/a> Case Comment \u201cTest of Foreseeability \u2013
\nprimary victim \u2013 damage of same kind\u201d Journal
\nof Personal Injury Litigation <\/em>(1995) 155 – 158<\/p>\n

[15]<\/a> Page v Smith<\/em> [1996]
\nAC 155, [1995] 2 All ER 736<\/p>\n

[16]<\/a> Dulieu
\nv White <\/em>[1901] 2 KB 669<\/p>\n

[17]<\/a> Justice Kennedy: Dulieu v White <\/em>[1901] 2 KB 669<\/p>\n

[18]<\/a> Dooley
\nv Cammell Laird & Co Ltd <\/em>[1951] 1 Lloyd\u2019s Rep 271<\/p>\n

[19]<\/a> Alcock
\nv Chief Constable of the South Yorkshire Police <\/em>[1991] 4 All ER 907<\/p>\n

[20]<\/a> Cooke (n 2) 80<\/p>\n

[21]<\/a> Alcock
\nv Chief Constable of the South Yorkshire Police <\/em>[1991] 4 All ER 907<\/p>\n

[22]<\/a> Cooke (n 2) 81<\/p>\n

[23]<\/a> McLoughlin
\nv O\u2019Brian <\/em>[1983] AC 410<\/p>\n

[24]<\/a> Galli-Atkinson v Seghal <\/em>[2003] EWCA Civ 697<\/p>\n

[25]<\/a>  M
\nOwen \u201cNegligence \u2013 Nervous shock\u201d The
\nCambridge Law Journal <\/em>(1983) 42<\/p>\n

[26]<\/a> Berisha
\nv Stone Superstore <\/em>[2014] LTL<\/p>\n

[27]<\/a> Elliot & Quinn (n 1) 46<\/p>\n

[28]<\/a> Chadwick v British Railways Board <\/em>[1967] 1 WLR 912<\/p>\n

[29]<\/a> McFarlane v Wilkinson (1997) 2 Lloyd\u2019s Rep 259<\/p>\n

[30]<\/a> J Tilley \u201cThe Risk of Shocking the
\nRescuer\u201d Cambridge<\/em> Law Journal <\/em>(1967) 159<\/p>\n

[31]<\/a> Spartan
\nSteel & Alloys Ltd v Martin & Co Ltd <\/em>[1973] QB 27<\/p>\n","protected":false},"excerpt":{"rendered":"

Psychiatric injury is a newly developed, incremental extension of the law and therefore has to be addressed separately.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[29],"tags":[85],"class_list":["post-475","post","type-post","status-publish","format-standard","hentry","category-free-law-essaystort-law","tag-uk-law"],"yoast_head":"\nPsychiatric Injury Claims in Tort Law | LawTeacher.net<\/title>\n<meta name=\"description\" content=\"Psychiatric injury is a newly developed, incremental extension of the law and therefore has to be addressed separately.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.lawteacher.net\/free-law-essays\/tort-law\/nervous-shock-tort-law-0585.php\" \/>\n<meta property=\"og:locale\" content=\"en_GB\" 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