BPP SG Ch 4: Nervous Shock Flashcards

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1
Q

What kind of action is a claim for nervous shock?

A

a negligence action

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2
Q

Define nervous shock.

A
  • C has suffered some form of psychiatric illness or harm
  • as a result of the perception of traumatic events
    (- dealing with liability for psychiatric injury)
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3
Q

What case summed up the high point of claims for nervous shock/psychiatric injury?

A
  • McLoughlin v O’Brian
  • C was informed of an accident involving her family and suffered nervous shock when she saw them in hospital
  • extended liability to those who suffered nervous shock in the immediate aftermath of an event
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4
Q

What important distinction is made in nervous shock cases? From what case?

A
  • Alcock v Chief Constable of South Yorkshire Police

- distinction between ‘primary’ and ‘secondary’ victims

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5
Q

What is a ‘primary victim’?

A
  • one who suffers nervous shock as a result of reasonable fear for their own physical safety
  • objective test
  • involved in the traumatic events in question
    (- did not suffer actual harm)
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6
Q

What is a ‘secondary victim’?

A
  • a victim who suffers nervous shock as a result of fear for someone else’s safety. No fear for their own safety
  • witnesses traumatic events but is not involved in them.
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7
Q

Give a case involving a primary victim.

A
  • Page v Smith
  • C involved in a car crash caused by D’s negligence
  • C suffered no physical injury but the psychological impact of the crash worsened his preexisting ME and he became permanently disabled
  • primary victim: his condition arose from a reasonable fear for his own safety
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8
Q

Give a case involving a secondary victim.

A
  • McLoughlin v O’Brian
  • C suffered psychological damage as a result of concern for her family
  • did not fear for her safety at any point
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9
Q

How does the issue of bystanders and rescuers relate to primary/secondary victims? Give an example.

A
  • to succeed in a claim for nervous shock they must be categorised as a primary or secondary victim and treated as such.
  • eg Wigg v British Railways Board - the train driver who tried to rescue someone trapped under a train was classed as a primary victim who suffered nervous shock as a result of fearing for his own safety
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10
Q

What case set out guidelines for bystanders wanting to claim? What are they?

A
  • McFarlane v EE Caledonia
    1) C must have been in the actual area of danger and escaped through good fortune or chance
    2) although C was not actually in danger, he reasonably thought he was because of the sudden and unexpected nature of the event
    3) although not originally within the area of danger he came into it later as a rescuer
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11
Q

What is the test for establishing a duty of care for primary victims? Where does it come from

A
  • decided in Page v Smith:
  • normal Caparo v Dickman test
  • much easier than for secondary victims.
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12
Q

How does foreseeability work in relation to establishing a duty of care for primary victims? From what case?

A
  • Page v Smith

- if physical injuries are foreseeable to a particular claimant then they can recover damages for psychiatric injuries

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13
Q

How is the ‘floodgates’ issue guarded against for claims by primary victims?

A
  • Page v Smith

- claimant must have suffered a medically recognised form of psychiatric illness.

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14
Q

Give a case where the harm suffered did not meet the medical requirements.

A
  • Reilly v Merseyside HA

- trapped in a lift for over an hour

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15
Q

What happens if physical damage results from psychiatric harm?

A
  • eg a miscarriage (Bourhill v Young) or heart attack

- must establish that both the psychiatric harm and the physical harm are material and are recognised conditions.

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16
Q

What is the leading case relating to secondary victims?

A

Alcock v Chief Constable of South Yorkshire

17
Q

What criteria need to be met to establish whether a duty of care is owed to a secondary victim? What case?

A
- Alcock
RPRPF
1) Recognised psychiatric illness?
2) Foreseeability of psychiatric harm
3) Relationship between claimant and 'victim'
4) Proximity in time and space
5) manner of Perception
18
Q

How is foreseeability of harm established in regard to secondary victims?

A
  • must be reasonably foreseeable that psychiatric harm specifically was reasonably foreseeable
  • eg Bourhill v Young: not foreseeable for the motorcyclist (who crashed and killed himself) that a pregnant woman who heard the crash might suffer psychiatric shock.
19
Q

How does the thin skull rule relate to foreseeability of damage in nervous shock cases for secondary victims?

A
  • court expects people to have ‘normal fortitude’
  • but thin skull does apply if the injury is foreseeable - if the victim suffers extraordinary damage due to their medical circumstances the D must take them as they found them
20
Q

What relationship must be established between the primary and secondary victims for a secondary victim’s claim to succeed?

A
  • Alcock
  • closer the relationship, the more likely a duty of care will exist eg mother/child/spouse McLoughlin v O’Brian
  • more distant relationships less likely to succeed, but each case judged on own merits. in Alcock, Hillsborough victims were generally not sufficiently close if they were siblings, uncles and aunts or grandparents.
21
Q

What kind of proximity needs to be established in time and space?

A
  • McLoughlin v O’Brian the claimant arrived while the catastrophe was ongoing
    vs
  • Alcock one of the claimants arrived 9 hours after the events to identify a body
    BUT
  • W v Essex County Council HoL recognised need for flexibility when dealing with new situations and allowed a claim when Cs were far removed from the actual events.
22
Q

What does the requirement for the manner of perception mean?

A

1) claimant must normally have perceived the events with their own unaided senses and the psychiatric condition arose from this.
- eg McLoughlin witnessing immediate aftermath herself
2) Claimant’s condition must be a ‘reaction to the immediate and horrifying impact’
- eg North Glamorgan NHS Trust v Walters psychiatric illness as a result of negligent medical treatment that led to the rapid death of her child
vs
- Sion v Hampstead HA gradual realisation that negligent care had put her child in intensive care.