TORT OF NEGLIGENCE: NERVOUS SHOCK (PSYCHIATRIC INJURY)

 The law on nervous shock or psychiatric injury is a sub-component of the tort of

negligence.
 In other words, the issue is whether the D/ tortfeasor, can be held liable under the
tort of negligence for the psychiatric injury suffered by the claimant/ victim.
 The issue in relation to nervous shock is whether the D owes a duty towards the
claimant in respect of the nervous shock suffered.
 Whether the D owes a duty or not in respect of the nervous shock depends on
whether the V is a primary victim or a secondary victim.

PRIMARY VICTIMS

 Primary victims are those who have been directly involved in the accident and who
are within the range of foreseeable physical injury.
 The case of Page V Smith, is an authoritative case which defines a primary victim.
 The claimant was physically uninjured in a collusion between his car and the car
driven by the D. The claimant suffered a psychiatric injury.
 The court held that the claimant was a primary V because he was directly involved in
the accident and was within the range of foreseeable physical injury. Lord Lloyd, held
that the V need not establish that he was actually physically injured.
 In Hunter v British Coal Corporation, Brooke LJ identified three categories of primary
victims as follows:

(a) Those who fear physical injury to themselves

 This is similar to what was stated in Page v Smith as these victim/s are within the
range of foreseeable physical injury.

(b) Rescuers of the injured (Professional Rescuers/ By-stander Rescuers)

 Rescuers are regarded as primary victims according to Brooke LJ because the law
believes that this could motivate people to help others in an emergency/ accident
situation.

(c) Those who believe that that they are about to be or have been the involuntary
cause of another’s death or injury (defendant)
 In Frost v CC of South Yorkshire, police officers had suffered nervous shock while on
duty in rescuing the victims of a disaster, which was caused by the negligence of
their employer (police department).
 The House of Lords, held that these police officers who were rescuers were not,
primary victims because they were not within the range of foreseeable physical
injury.
 In the case of Walker v Northumberland CC, the courts allowed a social worker to
sue his employer for the nervous breakdown he suffered due to being over-worked
by this employer.
 In W v Essex CC, the House of Lords, held that it is arguable whether the parents
could be primary victims where they felt that they were at fault when their natural
children (biological) were physically abused by their foster child because the parents
were not technically within the range of foreseeable physical injury.
SECONDARY VICTIMS
 Secondary Victims are those who are not directly involved in the accident.
 In order for a person to fall within the category of a secondary V, there are several
requirements to be satisfied.
 In other words, one main criteria and four other additional criteria must be satisfied in
order to be a secondary V.

I. MAIN CRITERIA TO BE A SECONDARY VICTIM

 In order for a person to fall within the category of a secondary V, he must first
establish that he is suffering from a medically recognised psychiatric illness or
disorder; White v CC of South Yorkshire Police.
 The following are generally regarded as medically recognised psychiatric illnesses:
1. Depression; Chadwick v British Transport Commission.
2. Personality Change; Mc Loughlin v O’ Brian.
3. Post- Traumatic Stress Disorder (PTSD); Hale v London Underground.
 The distinction between grief and a recognised psychiatric condition was discussed
in the case of Vernon v Bosley.
 In this case, the claimant suffered from PTSD, complicated by a grief reaction. It was
held that the D had to pay compensation for the PTSD but not for the grief.
 Therefore, it is clear that the D is only liable to pay compensation if the V is suffering
from a recognised psychiatric illness but not for mere emotions.
 Therefore, it is clear that the D is only liable to pay compensation if the V is suffering
from a recognised psychiatric illness whereas compensation need not be paid for
mere emotions.

II. ADDITIONAL CRITERIA TO BE A SECONDARY V - ALCOCK CRITERIA

 Having established the main criteria to be a secondary V, the claimant must then
proceed to establish the additional criteria to be a secondary V.
 These additional criteria are known as Alcock Criteria because they were formulated
in the case of Alcock v CC of South Yorkshire.

a. Proximity Of Relationship
 According to this criteria, the claimant must prove that he has a close tie of love and
affection with the accident victim.
 There is no exhaustive list of relationships recognised by the law. However, the most
common categories are parent – child, husband – wife, siblings, etc.
 Therefore, as long as the claimant can prove that he had some kind of love and
affection towards the accident V, this criteria can be established.
 This was confirmed by the HOL in the case of Alcock where it was held that the
claimant need not belong to a specific category such as Parents, spouses, etc., but
the claimant must be in a close and loving relationship with the accident V.
 However, it must be noted that rescuers are an exception to this criteria. In other
words, rescuers need not establish that they have a close tie of love and affection
with the accident V.
 It should also be noted that the courts are more willing to allow compensation to be
paid to mere rescuers rather than professional rescuers (police, fire fighters).
 However, in the case of Frost v CC of South Yorkshire, it was held that rescuers are
likely to be secondary victims rather than primary victims. This case further stated
that rescuers must satisfy the proximity of relationship test. It was also held that
whether rescuers, can sue their employer, is a questionable fact.
 In the case of Leach v CC of Gloucestershire, the Court of Appeal held that there
was no duty of care owed to a voluntary worker who had acted as an appropriate
adult during police interviews with Fred West, a notorious serial killer. However, the
court held that the employer is under a duty to provide counselling after such
interviews.
 This requirement of proximity of relationship might be in issue where a person
suffers a nervous shock based on property damage caused by the D’s negligence.
However, there are certain cases in which the courts have allowed the claimant to
sue the D based on nervous shock suffered by witnessing property damage caused
through the D’s negligence.
 Therefore, the claimant will be able to establish this requirement if he has a close tie
of love and affection with the property. This was seen in the case of Attia v British
Gas, where the Court of Appeal allowed compensation to be paid to the claimant for
the Nervous shock suffered by the claimant after witnessing her house burning down
as a result of the D’s negligence in installing central heating.

b. Proximity of Time and Space

 According to this criteria, the claimant must prove that the claimant was at the scene
of the accident, at the vicinity of the accident, or that the claimant came in the
immediate aftermath of the accident.

 In Bourhill v Young, the claimant was 50 yards away from the scene of the accident
which she could hear but not see. The court held that the proximity of time and
space was not satisfied.
 Similarly, in King v Phillips, the D was a taxi driver who negligently ran over a boy’s
tricycle. The claimant was the boy’s mother who witnessed the accident from a
distance of 70 yards. The court held that she was insufficiently proximate to the
scene of the accident.
 However, there was a change in the attitude of the courts where the courts were
willing to allow compensation in cases such as McLoughlin v O’ Brian. In this case
the claimant was 2 miles away from the accident but rushed to the hospital to see
her family. The court held that proximity of time and space was satisfied as she
came in the immediate aftermath of the accident.
 On the other hand, in the case of Palmer v Tees Health Authority, the claimant was
the mother who saw the body of her murdered child 3 days after the death, was
regarded as insufficiently proximate.
 In Duncan v British Coal Corporation, the claimant who was 275m away from the
scene of the accident and who arrived at the scene of the accident 4 minutes later
but did not see any injury or blood was insufficiently proximate.

c. Reasonable Foreseeability of Psychiatric Injury

 According to this criteria, the claimant must prove that the D had reasonably
foreseen a psychiatric injury – Bourhill v Young.
 When compared with the other additional criteria, this criteria is difficult to be
established because the D should have reasonably foreseen psychiatric injury as
opposed to physical injury.

d. Direct Perception
 According to this criteria, the claimant must prove that the claimant witnessed the
accident/ accident victim with his own eyes or heard it with his own ears.
 This criteria excludes situations where people witness or hear accidents through
media such as TV, radio, social media, etc.
 In McLoughlin v O’ Brian, Lord Wilberforce stated that the direct perception
requirement will be satisfied where the claimant has seen or heard the accident with
his own unaided senses.
 This criteria of direct perception, excludes situations where the accident has been
informed by a third party; Ravenscroft case.
  Therefore, provided the main criteria and the four additional criteria are satisfied, the
claimant will be able to claim compensation from the D in respect of the psychiatric
injury suffered as a secondary V.

ASSIGNMENT NO: 2

Hettie was a patient at the Manpool Hospital. Ian the junior doctor in her ward decided
that to combat an infection, she should receive a daily course of injections. In entering the
details in the computer he put the decimal point in the wrong place. When Jane, the newly
qualified nurse in the ward gave Hettie her injection, she was surprised by the dosage but
was too shy to question it. She therefore gave Hettie the dose shown, which was 10 times
than which was appropriate. Within hours, Hettie’s face, arms and legs had become
extremely painful, swollen and grossly disfigured.
Hettie’s brother, Kevin, came to visit her the next day. He had not been told of her
appearance and was extremely shocked. Both Jane and Kevin have suffered a severe
psychiatric damage.
Advise Hettie, Jane and Kevin.