Duty of care: Nervous Shock/Psychiatric injury

Question 1

Nervous shock: definition

Answer 1

where claimant has suffered some form of psychiatric illness or damage as a result of the perception of traumatic

Question 2

Primary victim

Secondary victim

Answer 2

-someone who suffers NS as a result of reasonable fear for their own physical safety
Dulieu v White - pregnant barmaid who miscarriage when the defendant negligently crushed through a wall
Page v Smith - worsened claimants ME. Take you victim as you find them
-claimant who suffered NS due to fear for someone else’s safety
McLoughlin v O’Brian
Alcock v Chief Constable of South Yorkshire Police (distinguished these two kinds of victims)

Question 3

Bystanders and rescuers

Answer 3

Chadwick v BRB - NS as a result of helpingto rescue victims
Wigg v BRB - train driver who tried to rescue someone trapped under a train suffered NS as a result of fearing for his own safety
cf
White v Chief Constable of the South Yorkshire Police - police officers on duty. They were not exposed to danger themselves
McFarlane v EE Caledonia - bystander aboard of the vessel which remained in the area collecting other survivors after an oil rig disaster - GUIDELINES TO RECOVER AS BYSTANDER:
1) cl. must have been in the actual area of danger but have escaped injury through good fortune
2) if he reasonably thought he was in danger because of sudden and unexpected nature of the event
3) came into the area of danger as a rescuer

Question 4

Test for Primary victims

Answer 4

Caparo test

1) was the damage reasonably foreseeable?
Page v Smith - def rgued that psychiatric damage suffered was not foreseeable (ME). Court disagreed.If physical injury is foreseeable to a particular claimant then that would be sufficient to enable the claimant to recover damages for NS even though he have not been physically hurt.
2) once foreseeability is established to a primary victim the remaining two elements of Caparo test are relatively straightforward. There is always geographical proximity between clai, and def.

Question 5

NS must be medically recognised form of psychiatric illness

Answer 5

Page v Smith - primary victims must prove that their particular type of NS is recoverable

Reilley v Merseyside - no liability for fear, distress and mental grief (couple trapped in the lift for an hour)

Hinz v Berry - depression
McLouhlin v O’Brian - positivi psychiatric illness

Bourhill v Young - physical illness sustained after the event in question and resulting from NS (miscarriage)

Vernon v Bosley - pathological grief that goes beyond normal human emotion

Question 6

Test for secondary victims

Answer 6

Alcock v Chief Constable of South Yorkshire Police - CRITERIA

1) whether the claimant has suffered a recognised psychiatric illness
2) foreseeability of the psychiatric damage
Bourhill v Young - def crashed and killed himself, claim. did not see the accident but later saw the blood and miscarriaged. no duty of care, because the damage was unforeseeable
3) relationship between the claim. and the victim
the closer the relationship the more likely the duty exists. Close ties of love and affection
4) proximity in time and space
McLouhlin v O’Brian - claimant need to be present at the scene or to come to the immediate aftermath of the accident
W v Essex County Council - boy who sexually abused children of the claimants. they discovered this 4 weeks later. Court refused to strike down the claim holding that the claimants had an arguable case.
5) manner of perception
McLouhlin v O’Brian; claimant must perceived the events with their own unaided senses and their psychiatric condition arose as a direct reaction to this.
Alcock - no duty of care owed by def to the viewers of the TV. Condition of the claimants must also be proved to be reaction to the immediate and horrifying impact
North Glamorgan NHS Trust v Walters - events leading to the claimants psychiatric condition took place over 36 hours, the series of events leading to death could together constitute a horrifying event.
cf
Sion v Hampstead HA - claimant failed in similar circumstances. claimant gradually came to the realisation that medical negligence had caused the injuries; this was not sudden reaction to the horrifying event.