Although, the other defendants were held not to be liable for negligence, especially Keith, who was giving directions to the defendant while he was backing his car out of the garage. In this case, the British High Court ruled that a plaintiff, a bar maid, could recover damages for nervous shock even though no actual impact was involved in the accident. . They could only recover if they were exposed to physical danger as primary victims. So, however, in the light of the above case decisions it has been obvious that the secondary victim must establish proximity of relationship or close tie of love and affection in order to establish a claim for psychiatric illness. Again, in the case of Fenn v City of Peterborough[64], the claimant arived home couple of minutes after a gas explosion in which he lost his three children. Principle of Frost v Chief Constable of South Yorkshire Police (1998) police officers who were present in the aftermath of the Hillsborough disaster sued for post traumatic stress disorder. It was argued that the defendants had failed to take adequate precautions to protect the plaintiff. In Kelly v Hennessy [1995] 3IR.253 CJ Hamilton laid down criteria, which have become the standard test for nervous shock. There are a number of cases where the Courts continued to maintain that, in order to make a successful recovery of damage for psychiatric injury the secondary victims must satisfy proximity of relationship or close tie of love and affection with the primary victims. In Alcock v Chief Constable of South Yorkshire (1992) 1 AC 310 the ordinary rules of negligence were applied to allegedly negligent crowd control by the police. It was the case of King v Phillips[44] in which the claimant having suffered psychiatric illness failed to establish a claim against the defendant as the court considered that the victim was far away from the accident. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. [17] As per Mr. Bankes, Atkin and Sargant L.JJ [1925] 1 K.B 141 at page 142. Facts. However, considering the surrounding circumstances of the present case (King v Phillips), McNair J. D was under a duty to take reasonable steps to protect his employees from the risk of physical harm, but there was no extension of this duty to protect C from psychiatric harm when they were not exposed to any risk of physical injury. White v Chief Constable of the Yorkshire Police [1998] 3 WLR 1509. Kirsty Horsey, Erika Rackley, Tort Law, 6th edn, (OUP, 2019) 210. Steyn's introductory observations in his speech in R(S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196, which concerned DNA, emphasised the public benefits in law enforcement agencies using new technology at [1]- [2]: "1. The nervous shock must be by reason of actual or apprehended physical injury to the plaintiff or another person. The Supreme Courts decision was to disallow recovery as there was no more than a remote risk of contracting a disease. Music background In those cases the court still allowed the claimants to establish a claim and recover damages for psychiatric injury notwithstanding the fact that the secondary victims were not actually present at the scene of the accident. Moreover, Denning LJ[55] took the view that, the defendant was under a duty of care to the boy where there was a breach of that duty of care, but as far as the claimants nervous shock was concerned, it was not reasonably foreseeable by the defendant that the claimant could be suffered from a nervous shock as a result of the accident. If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! The appellants who had been present at the stadium during the match but failed in their action because they could not establish the fact that the primary victims were sufficiently close to them. Common Law - Evidence Law - Amissibility of Evidence Essays - Use Our Free Law Essays To Help You With Your Law Course Codification of Directors Duties was Unnecessary. According to him, it is not necessary that such class of person, to whom the defendant owes liability, have to be spouse or parent and child. There are many examples where it has been seen that a person after sustaining a genuine shock could not recover damages for psychiatric illness only because of being failure to establish the fact that there was sufficient close relationship with the primary victims. The plaintiff, Mr Smith was deemed to be a primary victim, since he was involved in the accident and risked personal injury. He argued that, in Bourhills case, the fishwife was not entitled to recover damages for psychiatric illness since she did not see the actual accident at the time it took place but only saw the outcome of it afterwards. Held: Where an accident is of a particular . White (Frost) v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (Hillsborough, police on duty) The Control Mechanisms - Alcock 1. After the disaster took place, the match was abandoned and he started looking for his brothers but couldnt find them out. Page, was involved in a minor car accident, and was physically unhurt in the collision. Thus, there could be no duty of care owed to C for purely psychiatric harm, as they were not at any point in any physical danger. The facts of this case are as follows, the plaintiff, Mr. However, an action for psychatric injury was brought by the claimant against the defendant and the owners of the garage[57]. The secondary victims must be close to the accident both in terms of time and place. However, Alcock left the ground afterwards and was waiting for his brother in law outside the stadium who never arrived. The preliminary issue before the court was whether the existing law allows the claimants to bring an action for recovery of damages against the defendants or not. The reason for such unwillingness might be presumed that- the ordinary bystanders must be assumed to have sufficient strength or courage to undergo the calamities of modern life. Study with Quizlet and memorize flashcards containing terms like Define primary victim, Define secondary victim, What was the initial definition of psychiatric damage and more. Firstly shock had to occur as a result of what the plaintiff witnessed from his / her unaided senses .This required that the plaintiffs be close to the event. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim. The unsuccessful claimants made a cross appeal to the Court of Appeal against the judges decision whereby the defendants also appealed against the ten successful claimants. [24] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition. No rule of public policy exists that excludes claim for nervous shock . 0 [40] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition: Publication date 2004. However, Ormerod LJ. 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The claimants, as secondary victims, had to satisfy the criteria for the imposition of liability formulated by the House of Lords in McLoughlin v O'Brian [1983] 1 AC 410 and Alcock v Chief Constable of South Yorkshire Police [1992] AC 310. About after two hours she was informed by a neighbour of the road accident in which her family members were involved. An action for negligence was brought into the court against the Chief Constable of South Yorkshire Police. For a secondary victim to be successful in their claim, they must prove the following: It must be reasonably foreseeable that a person of "normal fortitude" might suffer . Most importantly, the development of the law in this area has been influenced by policy considerations, that is to say, to restrict the large number of potential claimants. Page -v- Smith [1995] 2 All ER 736 at 759, 761 per Lord Lloyd. But, it has been seen from some of the above case decisions that, even after satisfying the requirement of proximity of relationship, the court still did not allow the secondary victims claim for psychiatric injury. If it was not reasonably forseeable then the defendant owes no duty of care to the claimant and there is no liability for negligence on the part of defendant. Held: The definition of the work expected of him did not justify the demand placed upon him. The plaintiffs sought damages for nervous shock. Only Parliament could take such a step. The floodgates argument may be a possible reason for this. One of the children had died due to sustaining severe physical injuries almost immediately. 223 0 obj <>stream The caimant was summoned by the hospital authority in order to see her injured family members. Such a relationship which is full of close tie and affection may be presumed to exist into the familial relationship or close friendship. The House of Lord were thus called upon to revisit the distinction between primary and secondary victims set out in Alcock v Chief Constable of South Yorkshire ([1992] 1 AC 310). However, they did not fulfill a number of criteria (Wilberforce test as in previous case). In the case of Frost v Chief Constable of South Yorkshire Police [1999] Lord Steyn stated that the area of Tort Law relating to psychiatric trauma is rather complex. [7] Again, Hoffman L.J in the case of Page v Smith[8] defined psychiatric illness as a mental trauma. Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1995 . Employment > Health and safety; They said that the defendants negligent treatment allowed the attack to take place. Like the case of Alcock v Chief Constable of South Yorkshire, this case arose from the disaster that occurred at Hillsborough football stadium in Sheffield in the FA cup semi-final match between Liverpool and . The defenadant appealed against the decision of Salmon J. The case was known as Frost and Others v Chief Constable of South Yorkshire Police and Others [1997] 1 All ER 540 in the lower courts. Cited Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991 The plaintiffs sought damages for nervous shock. White v Chief Constable of the South Yorkshire Police was a 1998 case in English tort law in which police officers who were present in the aftermath of the Hillsborough disaster sued for post traumatic stress disorder. The only prudent course is to treat the pragmatic categories as reflected in in authoritative decisions such as the Alcock case and Page v. Smith as settled for the time being, but by and large to leave any expansion or development in this corner of the law to Parliament. the purpose test (Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd); the assumption . Held: . The case Alcock v Chief Constable of Yorkshire Police relates to claims brought by Alcock and several other claimants after the Hillsborough disaster in 1989. A person will be considered as secondary victim if he was present at the scene of the horrifying event and subsequently sustained a psychiatric injury due to witnessing the accident or event in which other person was involved, although he himself was out of the range of foreseeable physical injury[10]. She alleged that, as result of suffering from psychiatric illness she had a change in her personality that seriously affected her capabilities as a mother and wife. QB 335; [1995] 2 WLR 173; [1995] 1 All ER 833 , CA Entick v Carrington (1765) 2 Wils KB 275 Frost v Chief . So according to Keiths directions the defenadant was backing his car out and paying attention to him. 1 . [41] Kay Wheat (2003) Proximity and Nervous Shock Common Law World Review 32 4 (313). According to Lord Ackner[28], if the secondary victim is a distant relative then the only way he can establish a claim is by means of showing a very close or intimate relationship with the primary victims which can be compared with the normal relationship between spouses or parent and children. All of them were connected in various ways . At common law the secondary victims (like the bystanders or spectators) who suffer psychiatric illness as a result of witnessing a defendant negligently endangering or injuring others who are unrelated to them in love and affection, cannot recover. Free resources to assist you with your university studies! All work is written to order. . Any opinions, findings, conclusions, or recommendations expressed in this dissertation are those of the authors and do not necessarily reflect the views of UKDiss.com. . In this case, the court was concerned whether the claimants fall into the category of secondary victims and therefore entitled to bring an action against the defendants. The very moment Smith was being thrown off the van by the wind, Robertson did not in fact see what happened as he was driving. This chapter considers the landmark decision in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 concerning liability for psychiatric injury, or 'nervous shock'. In favour of this argument the claimant relied on the decision given by the House of Lords in the case of Hambrook v Stokes Bros[46]. In this case, he categorized the victims in a psychiatric injury cases in to two main categories- the primary and secondary victims. During the match, he was on the west stand of the football stadium who knew that both of his brothers would be witnessing the match from the pens behind the goal. % As a result of experiencing such a dreadful event she subsequently suffered severe nervous shock resulting in the form of psychatric illness. Music has historically been a key player in society and personal life. Alcock and ors v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 As is well known, the case of Alcock involved claims by those who witnessed the death of their loved ones in the Hillsborough disaster of 1989. Lord Oliver[30] thought that, Mr. Brians action failed not only because he could not provide with evidence of close tie of love and affection but also because the perception of the shocking event was gradual as opposed to the sudden appreciation by sight or sound of a horrifying event. [10] Kay Wheat (1998), Liability of psychiatric illness- the Law Commission Report Journal of Personal Injury Litigation. 669. The victims were taken to the nearest hospital by that neighbour. . Looking for a flexible role? As soon as she arrived to the hospital, she was informed that her youngest daughter was killed. Interestingly, it was also stated the purpose of the visit was to identify the body and not to aid the injured or rescue victims as in other compensation cases. Firm Rankings. In my opinion, this case illustrates a change of approach in relation to nervous shock recovery. It does not merely include the very accident that caused the death or injury to the primary victims but it also includes the immidiate aftermath of the accident[66]. . Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the plaintiffs claims as employees. The class of potential claimants is restricted among the secondary victims, especially for those who have close relationships with the primary victims. The accident took place when the victims car collided with the defendants lorry which was itself collided with another lorry. Lord Goff said: because shock in its nature is capable of affecting so wide a range of people, there is a real need for the law to place some limitation upon the extent of admissible claims. . However, in this case, their Lordship took the similar opinion that, the issue of proximity of relationship should be decided on a case by case basis. 12 Pages. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. [1999] 2 AC 455. The Plaintiff had a pre-existing chronic fatigue syndrome, which manifested itself from time . Lord Wilberforce argued that it was necessary to develop further criteria including strict proximity in time, a close relationship, direct means of communication (personal witness). He was told however that the risk was very remote. Cazalet J. agreed with the claimant that he meets all the recovery criteria that govern a claim for psychiatric injury sustained by him. Cases in bold have further reading - click to view related articles.. Alcock v Chief Constable of South Yorkshire [1991] UKHL 5; Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd's Rep 271; Frost v Chief Constable of South Yorkshire [1997] 3 WLR 1194; Galt v British Railways Board (1983) 133 NLJ 870; Gregg v Ashbrae Ltd [2006] NICA 17; Hunter v British Coal Corporation [1998 . It is of paramount importance that the law enforcement Irish courts do not use space / time or relationship as limiting factors as applied in some of the previous English cases , but rather these factors are taken into account, although the position in relation to the latter may be changing as evident in Cuddy v May. So, therefore, a secondary victim is someone who suffers from psychiatric illness through the fear of other persons safety or injury. . Having heard the scream the father (claimant) rushed into the spot and found his son with his foot trapped by the cars wheel. X CsGPL)8eDD(!#V+x 6g9%RlTJ%R "XL9$Q)pTFb%irDs!(;wx*9y_yr:!,y|(*ch1Y.qT%f#R4xSn"4;I.lMO.d==Z:B|dU6t()M.|^~,fmO'8\W?O@OVC\%rESn,IPx$|`S|}KBn|oX]vhaa\]ncWi=tMGcvg7v~M&ClWAb]n~_uuzAU60\T!lnV_ '0HPT l#H:+pQ )cmlu-'46:ut(:&:h 1=i?|\A dY;dzCP(@QD}XMSV/bVS:|x(v@7|, ,mFFL [g59gNqTeB@)V&l33%f@)6a87<>Vb3{,>gkWBPz|}y.H%g -m(-1HN]>0Ns6t Z~\ L6M As far as the claims for psychiatric illness is concerned, it was the case of Hambrook v Stokes Bros[16], where the English courts for the first time recognized a claim for psychiatric illness by the secondary victims. This was an event of 19th October 1973. The court took the view that, none of the claimants were entitled to recover damages for psychiatric illness. Both cars suffered considerable damage but the drivers escaped physical injury. During a major football match in the Hillsborough ground, one part of the football stadium was crashed because the South Yorkshire police allowed an excessively large number of spectators in that part of the stadium which was already full. The horrible accident took place when the employees were removing a big thin piece of metal sheeting which was lying on the south-bound carriageway. A large tower was constructed in the Docklands area of East London which now goes by the name of One Canada Square Capacity and Medical Consent. [58] that the defendant was in breach of his duty of reasonable care and the claimants were entitled to recover damages. [29] As per Lord Oliver [1992] 1 AC 310 at page 417. . Info: 9733 words (39 pages) Dissertation Primary victims are victims who are imperilled or reasonably believe themselves to be imperilled by the defendants negligence.Lord Steyn said: the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify. Others failed the close ties of love and affection . . Mental Health of Adolescent and Young Adult Cancer Survivors. However, these two categories of secondary victims are exceptionally allowed to recover at common law even without a close tie of love and affection between them and the immediate victims, as required of other secondary victims. Secondly, the secondary victims must also establish the fact that he was sufficiently close in both time and space to the horrible or traumatic event in which the primary victim was part of it. Case summaries. We do not provide advice. Moreover, it cannot be expected that the defendants will compensate the whole world at large. In this chapter, I argue that Alcock was an essentially conservative decision, rather than the reactionary one which it is often assumed to have been . [1964] 1 W.L.R CA 1317 at page 1317. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . [34] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition. II. .Cited Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007 The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. [25] As per Parker LJ [1991] 3 All ER 88 at 92-94. . Firstly, it fell to be determined whether an employer owed a duty of care to protect their employees from psychiatric injuries they may incur in the course of their employment. [17] took the view that, the mother suffered nervous shock by her own unaided realization of what she had seen with her own eyes, not because of what she learnt from a bystander. Regretted Page v Smith HL 12-May-1995 The plaintiff was driving his car when the defendant turned into his path. Lord Bridge in McLoughlin v OBrian required that a plaintiff must not merely suffer grief, distress or any other normal emotion, but a positive psychiatric illness. The Facts. As secondary victims they, like the bystanders or spectators, were not entitled to recover damages for their psychiatric illness. In this instance, a victims brother in- law visited the stadium make shift morgue a few hours after the disaster . Furthermore, the issue of measurability was a concern. A possible suggestion for not allowing compensation in this instance may be directly related to a fear of a floodgate of claims if some claimants were successful. The carriageway was too high that any person fell from that distance would unlikely to survive. CA"$a& ,@jj DCn*Bt!\&;i~(JkGAI40-,,l_66PK$UHCT)FnpdC\uJ*C.W@tjJ9mG9#=8 }+,CPkkHYUTVJ_6YGw.=t]C8yjb[(B~*bhO]ijp+2C+asL!!\Bx*V'G/8W-d8y~M=_T\$eZA The House of Lords in White v Chief Constable of South Yorkshire Police clarified that rescuers are not a special category of primary victim. After a long examination of the case law by several of their Lordships, the three control of Ireland (1884) illustrate that even though no physical injury occurred, the plaintiff was clearly in physical danger and therefore was allowed recovery. As far as the secondary victims claim for psychiatric illness is concerned, Lord Keith[27] in this case took the opinion that- he must establish a close tie of love and affection with the primary victim. He further took the view that, the cases where there is insufficient proximity of relationship must be very carefully considered before allowing the claimants for psychiatric injury claims[20]. Moreover, a rescuer in relation to whom physical injury was not reasonably foreseeable could not recover damages for psychiatric injury sustained by witnessing, or participating in the aftermath of, an accident which had caused death or injury to others; such rescuers were to be categorised as secondary victims, and so would have to meet the conditions specified by Lord Oliver in Alcock. We've received widespread press coverage since 2003, Your UKDiss.com purchase is secure and we're rated 4.4/5 on Reviews.io. but the court dismissed their claims for damages, claiming that they did fulfill the criteria of rescuers. That appears to be the course advocated by Mullany and Handford, Tort Liability for Psychiatric Damage. . Cited McFarlane v E E Caledonia Ltd CA 10-Sep-1993 The court will not extend a duty of care to mere bystanders of horrific events.
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