BPP SG Ch 4: Nervous Shock Flashcards
What kind of action is a claim for nervous shock?
a negligence action
Define nervous shock.
- 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)
What case summed up the high point of claims for nervous shock/psychiatric injury?
- 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
What important distinction is made in nervous shock cases? From what case?
- Alcock v Chief Constable of South Yorkshire Police
- distinction between ‘primary’ and ‘secondary’ victims
What is a ‘primary victim’?
- 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)
What is a ‘secondary victim’?
- 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.
Give a case involving a primary victim.
- 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
Give a case involving a secondary victim.
- 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
How does the issue of bystanders and rescuers relate to primary/secondary victims? Give an example.
- 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
What case set out guidelines for bystanders wanting to claim? What are they?
- 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
What is the test for establishing a duty of care for primary victims? Where does it come from
- decided in Page v Smith:
- normal Caparo v Dickman test
- much easier than for secondary victims.
How does foreseeability work in relation to establishing a duty of care for primary victims? From what case?
- Page v Smith
- if physical injuries are foreseeable to a particular claimant then they can recover damages for psychiatric injuries
How is the ‘floodgates’ issue guarded against for claims by primary victims?
- Page v Smith
- claimant must have suffered a medically recognised form of psychiatric illness.
Give a case where the harm suffered did not meet the medical requirements.
- Reilly v Merseyside HA
- trapped in a lift for over an hour
What happens if physical damage results from psychiatric harm?
- 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.