Tort Law

“There is little justification for the distinction drawn between primary and secondary
victims of nervous shock”.

It is problematic that it can be difficult to distinguish between primary and secondary victims.
Even if we find any such distinction to be unsatisfactory, it is crucial that we define these terms
with some degree of accuracy if we want to continue distinguishing between primary and
secondary victims. Primary and secondary victims are distinguished by the law. A secondary
victim is a witness to the upsetting events but was not directly involved, whereas a primary
victim is someone who has been personally harmed in an accident. Although the concepts seem
straightforward, identifying primary and secondary victims who have been present at the site of a
significant incident can be significantly more challenging. There may be circumstances where
people who were near the event but were unharmed physically occur. If they experience
psychiatric harm, it is difficult to determine whether this was a reasonably foreseeable result of
the negligent act. In a situation when a person has felt threatened with bodily harm and at risk,
they may be able to make a claim as a principal victim. The person will typically be unsuccessful
in making a claim where it is not.

According to the 1992 decision in Alcock v. Chief Constable of South Yorkshire Police,
secondary victims may only seek compensation for an injury in the event of a particularly
gruesome incident in which a loved one was directly involved and they were present at the scene,
in the area, at the time of the incident, or immediately after it. On the other hand, thanks to
technological advancement, a primary victim's loved ones may feel "proximate" to the terrifying
occurrence and experience shock even if they are far away. It is not a stretch to understand that
there can be a difference between watching an unedited video in real-time or just after an
accident and reading about it in news article hours afterwards. Some people who have suffered
major injuries as a result of what they have witnessed will inevitably be barred by the law from
pursuing compensation.

For legislative action, there have been increasing appeals. The most notable example is when a
defendant who negligently kills, injures, or puts in danger another person is liable for any mental
harm suffered by any "member of the family" who witnesses the incident in question, as well as
by the parent or spouse of the person involved in the accident, whether or not they were present
at the scene. However, the Law Commission recommended in its Report on Liability for
Recovery for Psychiatric Illness in 1998 that liability to secondary victims should continue to be
limited and that reasonable foresees ability. It did, however, make the case for modifying the
Alcock decision to lessen the disparities between the primary and secondary victim categories
and to limit the impact of its "control mechanisms." The Law Commission specifically advocated
against requiring a secondary victim to demonstrate proximity in terms of time, distance, and
perception. Instead, it was thought that requiring a strong bond between love and attachment
would be the most efficient way to limit claims.

To combat invasive evidence being acquired by defendants seeking to escape liability, the Law
Commission suggested a set list of connections where a tight bond of love and affection is
unmistakably established, including parents, children, spouses, cohabitates, and siblings. Those
who weren't on the list would still need to create this tie in the typical manner. The Law
Commission also suggested changing the current law to allow liability to arise in cases where the
defendant's actions put themselves at risk and resulted in the claimant's psychiatric injury. This
would eliminate the requirement of a sudden shock and include negligently caused psychiatric
injury that had developed over a period of years. This field of law is "a patchwork quilt of
distinctions that are difficult to justify," according to Lord Steyn. A similar statement was made
by Lord Hoffmann, who said that "the hunt for principle" in this area of law had been "called
off." Even the Law Commission acknowledged that there has been a "mistake" in the law
regarding compensation for psychiatric injuries brought on by negligence.

It was decided in Alcock, though, that the term "nervous shock" did not yet include psychiatric
disorder brought on by a series of slower, more cumulative attacks on the nervous system.
According to the precedent set in McLaughlin v. O'Brien (1993), shock must be experienced
directly—either by seeing, hearing, or experiencing the incident itself. The need that the incident
be not only sufficiently sudden and shocking but also actually produce the mental injury and that
it do so as a result of its sudden and shocking nature is formed by the frank psychiatric injury
element and the nerve shock element. The relationship between parties that is required to
establish a duty of care owed by one to the other. But in situations involving secondary victims,
the word proximity is sometimes used in a different context to denote a person's physical
proximity to an occurrence in both time and place. In this regard, it functions as a control
mechanism; Crystal Taylor v. A Novo (UK) Ltd. (2013). Reasonable foresee ability was deemed
to be a more fundamental control mechanism in the negligence tort in Page v. Smith in 1996.
This means that for there to be a duty violation, the circumstances must be such that a person
with what the law refers to as "normal fortitude" could experience psychiatric impairment
through shock. To put it another way, it had to have been reasonably foreseeable that someone
with typical fortitude would be affected by what happened.

Liability for Psychiatric Illness 1995, a consultation paper from the Law Commission, including
reform recommendations. Legislative change is required to improve legal coherence and offer a
remedy that accurately reflects the scope and gravity of harm. However, a legal framework is
founded on the foreseeable risk of mental or emotional harm and has a "moderate severity"
culpability standard. In order to address concerns regarding the proliferation of claims, changes
must also be made to the system of compensation for personal injuries.

Question 4
In Fairchild v Glen haven Funeral Services Ltd Lord Nicholas hoped for considerable
restraint’ in any future relaxation of the ‘but for test’ for causation in negligence.

Has negligence case law developed in the way that Lord Nicholas suggested?

In this essay, I'll argue that even while there is evidence that the Fairchild exception is a
principled rule in some circumstances, it should be disregarded since it is ambiguous and the
extent of its limits is unknown, both of which could give it the appearance of being arbitrary.
And will the case law has been developed as Lord Nicholas stated. The Fairchild exception and
the notion of a principled rule will be discussed first.

Fairchild had been exposed to asbestos dust by multiple irresponsible employers, according to
Fairchild v. Glen haven Funeral Services Ltd. He was unable to demonstrate, using the balance
of probability, the connection between the duty violation and the harm (mesothelioma), as the
disease's beginning could not be linked to a specific exposure. In the Fairchild exception to
causality, which was developed as a modified method of proving causation, it was sufficient to
show that the defendant's negligence had considerably raised the probability of developing the
disease in order to meet the causal requirements for his liability.

In Fairchild, Lord Nicholls explained what a principled rule is when he said, “To be acceptable
the law must be principled. The basis on which one case is distinguished from another should be
transparent and capable of identification”. The primary justification for overruling the Fairchild
exception as a criterion for assessing causality is that it is arbitrary rather than principled due to
the uncertainty surrounding its parameters and the circumstances to which it applied.

There is proof that the Fairchild exception is turning becoming a fundamental norm. As an
illustration, it has been determined that this exception exclusively covers single agent causes.
Wilshire v. Essex Area Health Authority3 held that the claimant was unsuccessful because the
sickness could have been caused by factors other than the misplaced catheter. It is also
acknowledged that both tortuous and non-tortuous instances are covered by the exception. In the
non-tortuous case of McGhee, the rule was followed.

The argument surrounding this exception's applicability, namely whether it is restricted to

mesothelioma instances, will serve as my first argument for why it should be disregarded.
Mesothelioma claims, according to Lord Brown in Sienkiewicz v. Greif, "are in a category all
their own" and the Fairchild exemption could not be expanded or generalized to cover other
diseases. This was in contrast to McGhee v. National Coal Board6, where the judges argued that
evidence demonstrating how this violation had significantly raised the probability of acquiring
dermatitis was adequate to establish causation.

In Zurich, Lord Hodge stated that he had come to the realization that the bounds of the Fairchild
exception are "not coterminous with culpability for mesothelioma and that the precise
boundaries... may have to be worked out in subsequent situations." Such uncertainty promotes
the rule's arbitrary application.

In Fairchild, Lord Hoffman set a rule that the exemption would only be applicable in cases where
"the impossibility of demonstrating that the defendant caused the damage emerges out of another
putative causative agent which functioned in the same way." In Novartis Grimsby Ltd v.
Cookson, where lung cancer was induced by smoking and by amines in ago-dyes in the same
way, this was put to the test. Despite passing the test, however, it was not able to identify the
results as a single agent. The regulation lacked moral standing.

In Gregg v. Scot, Lord Nicholls tried to include examples of medical negligence where there was
uncertainty in the Fairchild exemption. Gregg "submits that the extraordinary rule in Fairchild's
case should be generalized and damages granted in all circumstances where the defendant may
have caused an injury and has raised the possibility that the injury would be incurred," the
speaker stated. This, however, went beyond the scope of the exception. Because there was no
impossibility of evidence and the claim was rejected on the basis of a balance of probabilities,
Fairchild did not apply. The Fairchild exception's basic tenets were being attempted to be
expanded in this way.

The "double risk" standard, according to Lord Rodger's interpretation, simply shows that it is
likely that the defendant's negligence led to the dermatitis. This is insufficient evidence of
causation. Finding out whether the Fairchild rule of causation of an elevated in material risk is
sufficient in this case presents a problem. By allocating responsibility, this might be resolved.
According to the ruling in Fairchild, the defendants share joint and several liabilities for all the
harm. In dissenting opinion, Barker v. Corus argued that "proportionate" culpability was
preferable. If this point of view had prevailed, the Fairchild exception might have been used to
single exposure instances to alleviate the problem because the defendant would only be held
accountable for the fraction of the risk increase he was responsible for.

The success of the argument can be argued to be due to the fact that it was made in retrospect,
despite the fact that the aforementioned reasoning favors overruling the exception. No evidence
exists to suggest that the Fairchild decision, which permits Parliament to change the common
law where fairness and the public interest appear to demand it, should have been overturned. It's
possible that the judge might have made more effective judgments if they had been liberal and
teleological.