In Mcloughlin case, Lord Wilberforce contrasted the closest of family ties, for instance, the relationship between husband and wife and parent and child, with the ordinary bystanders and considered the potential claimants who are entitled to bring an action against the defendants for psychiatric injury. %%EOF The House of Lords in White v Chief Constable of South Yorkshire Police clarified that rescuers are not a special category of primary victim. Generally, primary victims do not face too many hurdles in order to establish a claim as long as certain tests are satisfied. In this instance, mental illness was accompanied by a physical trauma i.e. According to him, the primary victims are the category of victims who mediately or immediately was involved into the accident and the secondary victims are those who passively and unwillingly witnessed the event that involved the injury of others and subsequently sustained psychiatric illness[12]. The Facts. v The Chief Constable Of South Yorkshire Police ( [1997]1 All E R.540), their Lordships holding by a majority of 3 to 2 that the claims of the police officers had been rightly dismissed by the trial judge . [50] As per McNair J. [20] Michaell A Jones, Liability for Psychiatric Illness More Principle, Less Subtlety? [1995] 4 Web JCLI. Moreover, it cannot be expected that the defendants will compensate the whole world at large. %PDF-1.5 % Over the years as claims have increased, while it is arguable, for a need for criteria to be developed , to prevent a floodgate of claims , one has to feel that some of the decisions , particularly in relation to cases such as Alcock v Chief Constable of South Yorkshire Police , appear to be particularly harsh , in respect of the claimants. They could only recover if they were exposed to physical danger as primary victims. On August 18, 1955, the defendant, namely Mr. Sanderson went to the garage along with the claimant and his son for the purpose of collecting his car as they had decided to go out for holiday. However, Ormerod LJ. [26] Davie M (1992) Negligently Inflicted Psychiatric Illness; The Hillsborough Case in the House of Lords 43 Northern Ireland Legal Quarterly 237. No rule of public policy exists that excludes claim for nervous shock . According to Lord Oliver[31], it would be unfair to create a list of the category or class of people whose claim should be allowed and whose claim should be failed. 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. Courts said the following elements are necessary to establish liability for nervous shock The plaintiff must establish that he suffered a recognizable psychiatric illness, the illness must have been shock induced; caused by the defendants act or omission. Prior to this, the initial response of the common law to claims relating to nervous shock, was to deny responsibility. . Two of the claimants found their relatives or friend severely injured whereby one of them had his relative who escaped unhurt. The English law of negligence in relation to nervous shock or psychiatric illness is often considered as unfair and unsatisfactory by the defendants, claimants and even by the judges. Although, it was admitted by the police constable that they were negligent in performing their duties in the football stadium and it was only because of their negligence the horrible disaster took place which ended the lives of ninety six spectators and caused injury to the other spectators. . The judge found in favour of ten out of the plaintiffs and against six of them. QB 335; [1995] 2 WLR 173; [1995] 1 All ER 833 , CA Entick v Carrington (1765) 2 Wils KB 275 Frost v Chief . 34 [1996] 1 AC 155. However, considering the surrounding circumstances of the present case (King v Phillips), McNair J. Lord Dyson MR felt that damages for psychiatric illness could not be recovered in respect of consequences witnessed months, and . It appears in analysing this case that the House of Lords were conscious of the judgment made in the Alcock case. In the case of Brice v Brown[4], hysterical personality disorder was considered to be a psychiatric injury. The outcome of this case is particularly note worthy. The outcome of the Frost v Chief Constable Of South Yorkshire Police case, in which the House of Lords decided that the plaintiffs ( police officers) who, as a result of assisting the victims of the Hillsborough disaster ,which had been caused by negligence,( for which the Chief Constable was liable) , were not entitled to damages for nervous shock , either because their employment relationship gave rise to duties which were not owed to strangers, nor as rescuers , I feel gives credence to this statement by Lord Steyn . No issues of. Although, there was a rebuttable presumption that, in some cases, the close tie of love may exist between the engaged couples which might be even stronger than that of the married couples. Lord Jauncey[32] took the view that such a categorization would be illogical as well as arbitrary. Info: 3380 words (14 pages) Essay However, Mr. Bankes, Atkin and Sargant L.JJ. 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. He further considered that, such a proximity relationship or close tie of love and affection might exist between the family members or friends. Before discussing the above cases, it is essential to give a brief outline of the term nervous shock and its history. However in relation to claims brought by siblings this close relationship had to be proven by evidence. .Cited Calvert v William Hill Credit Ltd ChD 12-Mar-2008 The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. By Christopher Gardner, QC, Lamb Chambers. The court took the view that, none of the claimants were entitled to recover damages for psychiatric illness. [27] As per Lord Keith [1992] 1 AC 310 at page 397. This case document summarizes the facts and decision in Frost (or White) v Chief Constable of South Yorkshire Police [1999] 2 AC 455. Potential claims of misfeasance in public office and libel might also be considered. Section A The codification of directors duties was an unnecessary step. Up until the early 20th century in England, courts have been reluctant to allow recovery for nervous shock. 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. 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. [1] Nicolas N (2002), A Remedy for Nervous Shock or Psychiatric Harm- Who Pays?-Volume 9, Number 4. However, unlike the Alcock case, it was the case of McCarthy v Chief Constable of South Yorkshire Police[33]where the claimant (secondary victims) was successful in bringing an action for psychiatric illness against the defendants (Chief Constable of South Yorkshire Police). Despite of establishing a close tie of love where the secondary victims fails to satisfy the requirement of proximity in time and place with the accident, the court will not entilte them to recover damages for psychiatric illness. [63] Tort Law; Text, Cases and Materials by Jenny Steele 2007. The father immediately started helping his son to release his trapped foot out. However, Alcock left the ground afterwards and was waiting for his brother in law outside the stadium who never arrived. [66] Michaell A Jones, Liability for Psychiatric Illness More Principle, Less Subtlety? [1995] 4 Web JCLI. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. [14] Secondary Victims and Nervous Shock by M Dunne (2000) BR 383. 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 . Judgement for the case White v Chief Constable of South Yorkshire. He became so upset with his personal life and as a result his marriage life was affected. Disclaimer: This essay has been written by a law student and not by our expert law writers. Interestingly, in White v Chief Constable of South Yorkshire Police the plaintiffs ( police officers ) relied on cases such as Dooley v Cammell Laird [1951] 1 Lloyds Rep 271, Galt v British Railways Board [1983] 113 NLJ 870, Wiggs v British Railways Board. Page -v- Smith [1995] 2 All ER 736 at 759, 761 per Lord Lloyd. That appears to be the course advocated by Mullany and Handford, Tort Liability for Psychiatric Damage. [69] As per Stephenson LJ [1981] 1 All ER 809 at page 823. 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. In that case, the defendant did not reasonably foresee that the claimant would suffer from psychiatric injury as she was too far away from the actual place of the accident. had introduced the Special Rule . The claimants were secondary victims. Abstract. In this case, the defendants servant negligently left a motor lorry on a street with the engine running. [1953] 1 All ER 617 at page 621. 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. According to Stephenson LJ[69], although the claimants psychiatric illness was reasonably forseeable by the defendants and they owed a duty of care to the claimant, but it was policy considerations that hampered the claimant from establishing a claim and recover damages for psychiatric illness. After the dismissal from the Court of Appeal, ten of the claimants made an appeal to the House of Lords against the decision given by the Court of Appeal. IMPORTANT:This site reports and summarizes cases. The winner - given the power to fire the next chief constable - will inevitably prevail on an anti-corruption ticket. Mentioned Walker v Northumberland County Council QBD 16-Nov-1994 The plaintiff was a manager within the social services department. In England, the Dulieu v White and Sons [1901]2 KB 66 9 case was a landmark case in terms of the recovery of claims for psychiatric illnesses. Finally, the secondary victim is required to satisfy the court that his psychiatric illness was a direct result of witnessing or hearing of the traumatic event or its immediate aftermath[26]. The case centred upon the liability of the police for the nervous shock suffered in consequence of the events of the Hillsborough disaster . Keywords: rescue; compensation for hillsborough rescuers. 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. Is there any liability for self inflicted physical injury which caused the claimants psychiatric illness? .Cited Glen and Other v Korean Airlines Company Ltd QBD 28-Mar-2003 The claimant sought damages for personal injuries under the Act. Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. the purpose test (Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd); the assumption . Fletcher v Commissioners for Public Works [2003] 2 I.L.R.M.94. As a result of experiencing such a dreadful event she subsequently suffered severe nervous shock resulting in the form of psychatric illness. Held: The general rules restricting the recovery of damages for . [1999] 2 AC 455. (back to preceding text) I am compelled to say that I am unable to accept this suggestion because in my opinion (1) the proposal is contrary to well-established authority; (2) the proposed control mechanism would erect an artificial barrier against recovery . 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. According to him, the existing law of negligence in relation to psychiatric illness generally recognizes a claim brought by the people who are in a close relationship with the primary victims, but reluctant to allow any claims by the bystanders. 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. 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. .Considered Campbell v North Lanarkshire Council and Scottish Power Plc SCS 30-Jun-1999 . .Cited French and others v Chief Constable of Sussex Police CA 28-Mar-2006 The claimants sought damages for psychiatric injury. 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! YMzBCCCBS$Gtds]1w6F[:s\mPq%`:CGqt`*SzTAER3 baP0/XlX>,eoWf0`X }@| D Since they were not endangered in the discharge of their service or in rescuing, as employees and/or rescuers, the police officers were only secondary victims. Disclaimer: This dissertation has been written by a student and is not an example of our professional work, which you can see examples of here. Held: . He was not a rescuer, and nor had . Updated: 01 November 2022; Ref: scu.80695. It was held by Salmon J. Do you have a 2:1 degree or higher? In order for the claimant to successfully recover compensation the court needs to consider an amalgam of rules and exceptions as well as different categories of claimants, which . He was a road worker instructed to attend by the defendant immediately after a terrible accident. Once the requirement of proximity of relationship is satisfied, the secondary victims must also establish the facts that he had physical proximity to the accident or its immediate aftermath. In order to establish a claim and recover damages for psychiatric illness the secondary victims must satisfy the proximity of relationship[15]. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. In order to support this argument, the claimant relied on the decision of the case in In re Polemis and Furness, withy & Co. Ltd[47]. But that would be contrary to precedent and, in any event, highly controversial. In support of the first proposition, the defendants rely on the principles developed in a trilogy of House of Lords decisions commencing with Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, continuing with Page v Smith [1996] AC 155, and culminating in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (on . The case for such a course has been argued by Professor Stapleton. The term is used to describe psychiatric injury or illness which is caused by the defendant. At the trial, Branson J. took the opinion that, the claimant will not be entitled to establish a claim for nervous shock and recover any kind of damages if she had not suffered the shock through the fear of her own safety. .Cited Zurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015 A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. An employer has a duty to protect his employees from physical but not psychiatric harm unless there was also a physical injury. [1952] 2 All ER 459 at page 460. 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. Although the term has been replaced by psychiatric illness but it reflects the approach of the law in such cases[2]. The requirement of establishing proximity of relationship with the primary victims is one of the criteria. 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. [36] As per Lord Hope [1995]S. C at page 364. 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. Do you have a 2:1 degree or higher? For example, in Hinz v Berry[3], the court recognized morbid depression as a recognizable psychiatric illness. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. 141. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. Although the plaintiff did not suffer physical injury, the traumatic incident (a driver lost control of his team of horses and drove them into the building where the plaintiff was working behind her husbands bar) led to nervous shock and the premature birth of her child. It was admitted by the defendants that the accident took place due to their negligence. Firstly the court held that despite the fact that the plaintiff was approximately two miles away from the incident and did not arrive at the hospital until one hour after the incident; the scene at the hospital (all victims were still covered in mud and oil) was such to render her proximate to the accident. In the case of bystanders, it is not generally foreseeable by the defendants that such a person would suffer from psychiatric injury. Nervous shock is a term used in English law to denote psychiatric illness or injury inflicted upon a person by intentional or negligent actions or omissions of another. Due to the accident, the claimants husband suffered from bruising and the other children suffered from severe physical injuries and shock. /Length 13 0 R Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. The function of the defendants was to maintain and operate the bridge. Cited - Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991. Unless and until there is clear evidence of having the close relationship or a close tie of love with the person (primary victims) who is injured or within the zone of danger, the court will not allow any claims for psychiatric injury brought by the secondary victims. denitions given by Lord Oliver in Alcock v Chief Constable of the South Yorkshire Police[1992] are sufcient for present purposes: a primary victim is someone 'who is involved either mediately or immediately as a participant in an accident' a secondary victim is someone who is 'no more than a passive and unwilling witness of an Cited Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) PC 18-Jan-1961 Foreseeability Standard to Establish NegligenceComplaint was made that oil had been discharged into Sydney Harbour causing damage. It was not reasonably foreseeable by the defendant that the claimant would suffer any kind of mental damage in such a way. The courts in different cases have recognized different type of psychiatric illnesses. [58] As per Salmon J. 164 0 obj <> endobj While Robertson was driving the van, Smith was sitting on top of the metal sheet. ]S+ dfEOP 5mr'%G-X5aD)N>M%X/sVXRGt-sVm]^ciARbDwfmB!%xDh \HKPjMQ7h{,jSZ Another claimant of this case was Rough, who was forty four years old. It must be left to Parliament to undertake the task of radical law reform.. In Alcock case, the House of Lords took the view that- the secondary victims will be entitled to establish a claim and recover damages for psychiatric injury if he can establish the fact that, the defendant could have reasonably foreseen that he would suffer from a psychiatric illness due to the negligent act as there was proximity of relationship between both the primary and secondary victims. The House of Lords reversed the Court of Appeal decision in Frost v Chief Constable of South Yorkshire [1997] 1 All ER 540, which had found that the plaintiffs were primary victims, as rescuers. The plaintiffs in the case were police officers who suffered psychiatric injury after witnessing the Hillsborough stadium disaster. In the case of Frost v Chief Constable of South Yorkshire Police [5], . He continued that, the claimants nervous shock was too remote as a head of damage. Sometimes, the policy consideration came on the way of the secondary victims as an obstacle which did not let the courts give decisions in their favour. According to the facts of this case, the claimants (Robertson and Rough) and the primary victim (George Smith) used to work together with the defendants (Forth Road Bridge Board). . Having studied this case, I feel it is significant for a number of reasons. In Frost v Chief Constable of South Yorkshire [1999] AC 455 at 507H-508A, Lord Hoffman described Lord Oliver's explanation of these 'unwilling participant' cases as "an ex post facto rationalisation" and as "an elegant, not to say ingenious, explanation, which owes nothing to the. [39] As per Cazalet LJ. Employment > Health and safety; There are a number of subsequent cases which might be contrasted with the decision given in the case of King v Philips. The later case Hambrook v Stoke Bros, highlights a number of other issues relating to duty of care and further developed claims for nervous shock .In this case, damages were awarded even though the person suffering nervous shock did not witness the incident, but was close by, and the shock was suffered as a result of fear, not for her own safety, but that of her child. 4 policeman (Ps) sued R (chief officer responsible at Hillsborough) for causing them nervous shock through his negligence in allowing the accident to occur. The Court of Appeal in Frost v Chief Constable of Yorkshire Police [1997] 3 WLR 1194 (by a majority) had held that the police officers who were allowed to recover for their psychiatric illness as a result of carrying out their professional duties as rescuers and/or employees at the disastrous Hillsborough football stadium stampede were classifiable as primary victims. 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 went on stating that, due to the policy considerations, the arguments against there being a duty of care prevails over the arguments in favour of being there such a duty of care. 223 0 obj <>stream Another appellant, namely Mr. Robert Alcock, was present in the stadium and lost his brother in law but still failed in his action as it was not reasonably foreseeable by the defendants that he would suffer psychiatric illness. 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