Negligence is concerned with compensating people who have suffered damage as a

result of the carelessness of others. However, the compensation is restricted through the
doctrine of duty of care. Based on the issue, Christopher is negligence in failing to check the
harness that Adrienne used. Psychiatric injury has traditionally been known by the courts as
‘nervous shock’. Those who claim for nervous shock, which is Shelly, Nigel, Gill and Paul
must prove that they have suffered a real psychiatric illness for example clinical depression,
personality changes, and post-traumatic stress disorder. Based on the issue, Shelly, Nigel,
Gill, Paul has been diagnosed as suffering from various forms of depression and other
psychiatric problems.

In White and others v Chief Constable of Yorkshire has laid down three type of
categories if people that can claim for psychiatric injury. The category is the primary victims,
who are physically injured and psychiatric injury in an event caused by the defendant. The
next category is those that put are put in danger of physical harm, but actually suffer
psychiatric injury which also falls under primary victims. The next category is the secondary
victim, which they are not put in danger of physical injury to them, but suffer psychiatric
injury as a result witnessing such injury to others. A duty of care to secondary victim will
arise only if they can satisfy very restrictive requirements. Shelly, Nigel, Gill and Paul all
falls under the category of secondary victims.

In Alcock v Chief Constable of Yorkshire, it has established that secondary victim

could only claim for psychiatric injury in very limited circumstances. And also in
McLoughlin v O’Brian, those who claim for psychiatric injury must prove that they have
suffer from a recognised psychiatric illness and medical evidence will be needed to prove
this. People who are simply upset by a shock are not included. The House of Lords held that
only witnesses who were actually present at the scene of a shocking incident is allowed to
recover for psychiatric injury. However, Lord Wilberforce suggest that while psychiatric
injury did have to be reasonably foreseeable, this in itself was not enough to create a duty of
care towards secondary victims. Secondary victims would have to satisfy a series of other
requirements, concerning their relationship to the primary victims of the shocking incident
and their position in regard to the incident.

In order for the secondary victims to claim for ‘nervous shock’, they must first prove
that the psychiatric injury to them was a reasonable foreseeable consequence of the
defendant’s negligence. Based on the case, it was reasonably foreseeable for Shelly, Nigel,
Gill, and Paul to suffer psychiatric injury when the saw Adrienne fall to her death due to
Christopher’s negligence. Once it is established, there are there test that the court must
consider which is laid down in Alcock. In contrast with Bourhill v Young, where it is
unlikely for a bystander who have no relationship with the primary victims of an accident are
very unlikely ever to be able to sure successfully for psychiatric injury experience as a result,
because it is expected that an ordinary bystander could withstand the shock of such sight, and
it was not reasonably foreseeable for the claimant would in fact suffer psychiatric damage as
a result.

Once reasonably foreseeable is established, the three further tests which the court must
consider is the nature and cause of the psychiatric injury, the class of person into which the
claimant falls, and the claimant’s proximity to the shocking incident in terms of both time and
place. The first test requires that the psychiatric damage must have been caused by the claimant
suffering a sudden and unexpected shock caused by a ‘horrifying event’. In Sion v Hampstead
Health Authority, the claimant watch his son slowly die in intensive care as a result of negligent
medical treatment. The claim for ‘nervous shock’ failed because the claimant’s psychiatric illness
had not been caused by a sudden shock. In contrast with North Glamorgan NHS Trust v
Walters, the Court of Appeal held that the ‘horrifying event’ referred to in Alcock could be made
up of a series of event, where is distinguish from cases where psychiatric injury was caused by a
gradual realisation that a child was dying. Shelly, Nigel, Gill, and Paul have fulfilled the first test
because the shock was caused by the immediate effect of the incident or the aftermath of the
incident.

The next test is the class of person that falls within the law to allow claiming compensation
for ‘nervous shock’. These are relatives and friends, rescuers, employees, and ‘unwitting agents’
which are people that cause death or injury to someone else but due to negligence of others. Lord
Wilberforce held in McLoughlin v O’Brian case that the ties have to be close ‘not merely in
relationship, but in care’. A claimant fails his claim in Alcock’s case because he failed to prove
that he was close to his brother. Adrienne’s sister, mother and grandfather which are Shelly, Gill
and Paul respectively need to prove that they are close to Adrienne not merely in relationship but
in care in order to claim for ‘nervous shock’. The other class which is rescuers, employees and
unwitting agent is not relevant to this issue.

However, Shelly’s friend Nigel who has no close relationship with Adrienne will be
claiming as other bystanders. Bystanders who have no relationship with the primary victims are
very unlikely ever to be able to sue successfully for psychiatric injury experienced as a result.
However, there are rare occasion where an incident was so horrific that psychiatric damage to
even uninvolved bystanders was foreseeable, and there a duty of care would arise. The incident
must need to be very horrific in order for Nigel to claim for ‘nervous shock’.

The third test is proximity, which is how close the claimants were to the shocking event in
terms of both time and place. Alcock established that to claim for nervous shock, the claimant
must have been sufficiently proximate to the accident or its immediate aftermath; hearing it on
the television is not usually enough. There House of Lords made it clear that being informed of
the incident by a third party was not sufficiently proximate. McLoughlin was considered to be a
borderline case by Lord Ackner and was stated that identifying with the body of a loved ones
after the incident did not fall within seeing the immediate aftermath of the tragedy.

Christopher does not have a duty of care towards Paul and Gill, because both of them does
not fulfil the third test of proximity, where Paul saw the incident on the television and Gill had to
go to the hospital several hours later to formally identify her body. However, Shelly and Paul will
succeed in their claim if Shelly could prove the she is close to Adrienne not merely in relationship
but in care. And Paul need prove that the incident was so horrific that it was foreseeable that a
duty of care would arise for a bystander.