He had known Smith just as a colleague for few years. In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way that is coherent and morally defensible. So, it is the secondary victims who are required to prove the fact that he has sustained a psychiatric injury because the person with whom he is in a close relationship has in fact suffered from a severe physical injury. But that would be contrary to precedent and, in any event, highly controversial. Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5, [1992] 1 AC 310 is a leading English tort law case on liability for nervous shock (psychiatric injury). There was no doubt that each claimant had a nervous shock from the horrible disaster which caused psychiatric illness to them, but the question arose whether they were entitled to establish a claim and recover damages for psychiatric illness. Mentioned Walker v Northumberland County Council QBD 16-Nov-1994 The plaintiff was a manager within the social services department. complexities encountered by the court in Frost in applying the principles laid down by Alcock v Chief Constable of the South Yorkshire Police14 and Page v Smith15 are also highlighted. 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 . You would be correct that rescuers are generally an excluded category of primary victim, as seen in cases like White v CC of South Yorkshire Police (if family cannot claim, rescuers should not be allowed to) . That appears to be the course advocated by Mullany and Handford, Tort Liability for Psychiatric Damage. Alcock -v- The Chief Constable of South Yorks [1992] 1 AC 310. [10] Kay Wheat (1998), Liability of psychiatric illness- the Law Commission Report Journal of Personal Injury Litigation. The plaintiffs sought damages for nervous shock. The facts of this case are as follows, the plaintiff, Mr. Consequently, Smith was killed as he fell a few feet on to the girder below the carriageway. The claimants (C) were all police officers who had been on duty within Hillsborough Stadium during the eponymous disaster, in which 95 Liverpool FC fans were killed and many others injured. CA"$a& ,@jj DCn*Bt!\&;i~(JkGAI40-,,l_66PK$UHCT)FnpdC\uJ*C.W@tjJ9mG9#=8 }+,CPkkHYUTVJ_6YGw.=t]C8yjb[(B~*bhO]ijp+2C+asL!!\Bx*V'G/8W-d8y~M=_T\$eZA It appears to have played an unjustifiably large part in the . Lord Jauncey[32] took the view that such a categorization would be illogical as well as arbitrary. Bourhill v Young[49] was a case of Edinborough fishwife who suffered nervous shock as a result of the negligence of the defendant motorcyclist who brought about a collision and made the claimant so upset that she had a miscarriage. Taylor v Somerset HA [1993] PIQR P 262 2. Others identified bodies in temporary constructed morgues in the stadium. It was not disputed that D was negligent or, indeed, that this had caused nervous shock to C. The Court of Appeal had previously found in favour of C and D appealed to the House of Lords. The court did not allow any damages to the claimant for her psychiatric injury. So, however, in the light of the above case decisions it has been obvious that the secondary victim must establish proximity of relationship or close tie of love and affection in order to establish a claim for psychiatric illness. The plaintiff, Mr Smith was deemed to be a primary victim, since he was involved in the accident and risked personal injury. I conclude by wholeheartedly agreeing with Lord Steyns statement that The Law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify and I feel, the cases discussed in this essay clearly support my viewpoint. In Alcock v Chief Constable of South Yorkshire (1992) 1 AC 310 the ordinary rules of negligence were applied to allegedly negligent crowd control by the police. In the case of Frost v Chief Constable of South Yorkshire Police[5], the court considered the post traumatic disorder to be a recognizable psychiatric injury. Cited Chadwick v British Railways Board 1967 Mr Chadwick tried to bring relief and comfort to the victims of the Lewisham train disaster in December 1967. However, Ormerod LJ. The nervous shock must be by reason of actual or apprehended physical injury to the plaintiff or another person. C brought an action in negligence (and/or breach of statutory duty) against their employer, the Chief Constable of South Yorkshire Police (D), for the psychiatric harm they had suffered as a result of witnessing the tragedy first-hand. [26] Davie M (1992) Negligently Inflicted Psychiatric Illness; The Hillsborough Case in the House of Lords 43 Northern Ireland Legal Quarterly 237. Having witnessed the tragic death of Smith, both his workmates-Robertson and Rough suffered nervous shock. CJ Keane criticized the logic of distinguishing between psychiatric illnesses resulting from a traumatic event as opposed to suffering grief in its aftermath. As far as the secondary victims claim for psychiatric illness is concerned, Lord Keith[27] in this case took the opinion that- he must establish a close tie of love and affection with the primary victim. The Greatorex v Greatorex and another[37]is another case in which the question arose whether a defendant owes any duty of care towards the claimant for not causing him a psychiatric injury by self inflicted injuries. Cited Mount Isa Mines Ltd v Pusey 1970 The court considered how progress is made in developing the law of liability for damages for psychiatric injury, saying The field is one in which the common law is still in course of development. Traditionally, the category of close relationship indicates the familial relationship, such as the relationship between the spouses, parents and children, brothers and sisters etc. She suffered nervous shock that affected her pregnancy and caused her injury. Donaghue v Stevenson [1932] A.C. 532. The Plaintiff had a pre-existing chronic fatigue syndrome, which manifested itself from time . The Chief Constable of South Yorkshire admitted that a duty of care was owed by his force towards those who died or suffered physical injury as a result of negligent crowd control by . Different kinds of harm The horrific events of 15 April 1989 at the . The claimants were secondary victims. We and our partners share information on your use of this website to help improve your experience. In the case of bystanders, it is not generally foreseeable by the defendants that such a person would suffer from psychiatric injury. About after two hours she was informed by a neighbour of the road accident in which her family members were involved. Comparison of the Effect of Classical and Heavy Metal Music on Productivity and Mental Health. In a subsequent case, Packenham v Irish Ferries Limited this principle was upheld and damages were not awarded as there was no recognized psychiatric illness. Lists of cited by and citing cases may be incomplete. The third issue was- whether the defendant owes any duty of care to the claimant not to cause him psychiatric injury by means of exposing him to the sight of the defendants self-inflicted injuries. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. When faced with these two decisions, one can't help but recall the comment of Lord Steyn in Frost v Chief Constable of South Yorkshire [1992] 2 AC 455 (at 511), who considered that "the search for principle was called off in Alcock". See para 1.5 n 14 below. Subsequently, breaking news in relation to the disaster was broadcasted over the television as well as radio time to time. 12 0 obj [15] Kay Wheat (2003) Proximity and Nervous Shock Common Law World Review 32 4 (313). The claimant brought an action against the defendant for causing psychiatric injury to him. (now Lord Justice Waller) and the majority in the Court of Appeal erred in reversing him: Frost v. Chief Constable of South Yorkshire Police [1997] 3 W.L.R. White v Chief Constable of South Yorkshire. These standard criteria have made it more difficult to claim damages in Irish courts. Although, according to the guidelines of television broadcasting, none of the television channels highlighted any scenes that relate to the dying or suffering of the spectators in that disaster[24]. [1] Nicolas N (2002), A Remedy for Nervous Shock or Psychiatric Harm- Who Pays?-Volume 9, Number 4. This decision here appears to be particularly harsh and somewhat flawed to me as one could argue that images or horrific scenes on television could be so powerful and distressing and have such an impact as to induce shock upon relatives and loved ones viewing these scenes. The secondary victims must be close to the accident both in terms of time and place. He submitted that the court must take into account the decision given by the House of Lords in the case of Bourhill v Young[59]before reaching its final decision in the present case. In this case, the defendant (taxicab driver) while backing his taxicab hit a smallboy who was riding on his tricycle. Two of the plaintiffs were spectators in the ground, but not in the pens where the disaster occurred, the remainder of the plaintiffs learned of the disaster through . After the disaster took place, the match was abandoned and he started looking for his brothers but couldnt find them out. .Cited Taylor v A Novo (UK) Ltd CA 18-Mar-2013 The deceased had suffered a head injury at work from the defendants admitted negligence. 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 . Frost v Chief Constable of Yorkshire Police [1997] 3 WLR 1194. Although there was a big age difference between them but they had been working together for many years. One of the children had died due to sustaining severe physical injuries almost immediately. .Cited McLoughlin v Jones; McLoughlin v Grovers (a Firm) CA 2002 In deciding whether a duty of care is established the court must go to the battery of tests which the House of Lords has taught us to use, namely: . Reference this School King's College London; Course Title LAW 10999; Uploaded By ColonelHeatKudu28. Eventually, at about midnight, having gone to the mortuary he managed to identify the bruising dead body of his brother in law. In support of my opinion I will discuss and analyse the outcomes of a number of relevant law cases, namely, Dulieu v White and Son[1901]2 KB 669 , Hambrook v Stoke Bros [1925] 1 KB 141, McLoughlin v O Brian (1983) AC 410 310 AT 407, Alcock -v- The Chief Constable of South Yorkshire [1992] 1 AC 310, Page -v- Smith [1995] 2 All ER 736 AT 759, 761 per Lord Lloyd, White v The Chief Constable of South Yorkshire Police[1992]1 AC.310. [39] As per Cazalet LJ. 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. Criticism o f this seem ingly unpalatable result has been widespread: see Law Com m ission Report 249, Liability for Psychiatric Illness, 1998 (Report) at [1.1]. They said that the defendants negligent treatment allowed the attack to take place. The most recent of which was Frost v The Chief Constable of South Yorkshire which resulted from the Hillsborough tragedy. This took place while Robertson was driving the van on a carriageway which was high above the water. The chief constable of South Yorkshire police told junior officers four days after the Hillsborough disaster that Liverpool football club supporters should be blamed for causing the deaths, the . Section A The codification of directors duties was an unnecessary step. The claimants eight year old son was very close to the near side door of the car and was playing there. The Supreme Courts decision was to disallow recovery as there was no more than a remote risk of contracting a disease. Cases in bold have further reading - click to view related articles.. Alcock v Chief Constable of South Yorkshire [1991] UKHL 5; Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd's Rep 271; Frost v Chief Constable of South Yorkshire [1997] 3 WLR 1194; Galt v British Railways Board (1983) 133 NLJ 870; Gregg v Ashbrae Ltd [2006] NICA 17; Hunter v British Coal Corporation [1998 . . The employer could have checked up on him during his . In the case of Alcock v Chief Constable of South Yorkshire,[6] Lord Ackner defined the term nervous shock or psychiatric illness as Sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. On the other hand, Lord Keith defined psychiatric illness as Sudden assault on the nervous system. Tel: 0795 457 9992, or email david@swarb.co.uk. So, in this situation- Singleton LJ. Only Parliament could take such a step. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. 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. 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. Looking for a flexible role? However, in this case, Lord Hope[36] adopted the explanation given by Lord Oliver in Alcock and held that, since there was no sufficient close tie of love between the claimants and the deceased, so therefore the claimants were not entitled to establish a successful claim for psychiatric illness. The test of reasonable foreseeability was applied and issues of space, time and relationship were considerations in determining the degree of foreseeability of psychiatric illness. A primary victim could now recover for psychiatric illness even when this is not reasonably foreseeable, so long as the physical injury, which need not actually occur, is foreseeable. In the present case, the claimants family members including her husband and three children had a severe road accident. Up until the early 20th century in England, courts have been reluctant to allow recovery for nervous shock. Hopes had been pinned on the decision of the House of Lords in Frost v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509, but by and large Frost is a disap- pointment. Held: Being directly involved, the pursuer was a primary victim, and accordingly not subject to the limits on claiming for . He argued that, in Bourhills case, the fishwife was not entitled to recover damages for psychiatric illness since she did not see the actual accident at the time it took place but only saw the outcome of it afterwards. According to the facts and circumstances of the present case, the clamant was not close to the place of the accident who was informed by someone of that after two hours. (see Frost v Chief Constable of South Yorkshire Police, or the recent case of Paul for an overview of the law on secondary victims.) It was held by the court that (according to the decision of Bourhill case), the defendant owes no liability towards the claimant although there was a liability in relation to the accident of the boy. 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. Lord Bridge in McLoughlin v OBrian required that a plaintiff must not merely suffer grief, distress or any other normal emotion, but a positive psychiatric illness. The children had severe head and face injuries, concussion and fractures. of Ireland (1884) illustrate that even though no physical injury occurred, the plaintiff was clearly in physical danger and therefore was allowed recovery. The floodgates argument may be a possible reason for this. The law on recovery of damages for psychiatric illness is entirely based on common law. hYn86 ,tV!%TvIrD9f%E0jBA%r`$)8 In this case, the claimant argued that he was entitled to recover damages for psychiatric injury as he satisfied all the additional criteria for recovery which have been laid down in the case of Alcock[38]. The case centred upon the liability of the police for the nervous shock suffered in consequence of the events of the Hillsborough disaster . As a result of the negligence of the police department, ninety six spectators died in a massive crash and more than approximately four hundred spectators were severely injured in that accident. [1992] 1 AC 310 Lord . However in relation to claims brought by siblings this close relationship had to be proven by evidence. D h.d.CFPxe @0RI4 #Pm'Qc^FF" -P!P)Hljc6f.X{81,qxn;G#1t._!c 6jlw(9OAEiQ*Jr.JEW; v}qsF{-HE qx#>#erJ5$afH" :s8C1@( di4)bH'=8 pKzx2DjkZhh"lc+*`>p@>*& "$x 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 Court of Appeal's judgment has been discussed at some length by the present authors in an earlier article, "Nervous Shock, Rescuers and Employees - Primary or Secondary Victims?" [1998] SLJS 121. 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). They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. Abstract. The requirement of immediate aftermath principle was firmly established in the case of Mcloughlin v O Brian[67]. Keywords: rescue; compensation for hillsborough rescuers. The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy. Both cars suffered considerable damage but the drivers escaped physical injury. 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. Top Tier Firm Rankings. . So, finally, the House of Lord dismissed the appeal made by the claimant. 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. Essays, case summaries, problem questions and dissertations here are relevant to law students from the United Kingdom and Great Britain, as well as students wishing to learn more about the UK legal system from overseas. Evidence Law - Admissibility of Evidence Essays. Tel: 0795 457 9992, or email david@swarb.co.uk, Ultrasun v EUIPO (Ultrasun) (European Trade Mark Order): ECFI 20 Oct 2020, Hackney London Borough Council v Mullen: CA 22 Oct 1996, Frost and Others v Chief Constable of South Yorkshire, White, Frost and others v Chief Constable of South Yorkshire and others, British Airways Plc v British Airline Pilots Association: QBD 23 Jul 2019, Wright v Troy Lucas (A Firm) and Another: QBD 15 Mar 2019, Hayes v Revenue and Customs (Income Tax Loan Interest Relief Disallowed): FTTTx 23 Jun 2020, Ashbolt and Another v Revenue and Customs and Another: Admn 18 Jun 2020, Indian Deluxe Ltd v Revenue and Customs (Income Tax/Corporation Tax : Other): FTTTx 5 Jun 2020, Productivity-Quality Systems Inc v Cybermetrics Corporation and Another: QBD 27 Sep 2019, Thitchener and Another v Vantage Capital Markets Llp: QBD 21 Jun 2019, McCarthy v Revenue and Customs (High Income Child Benefit Charge Penalty): FTTTx 8 Apr 2020, HU206722018 and HU196862018: AIT 17 Mar 2020, Parker v Chief Constable of the Hampshire Constabulary: CA 25 Jun 1999, Christofi v Barclays Bank Plc: CA 28 Jun 1999, Demite Limited v Protec Health Limited; Dayman and Gilbert: CA 24 Jun 1999, Demirkaya v Secretary of State for Home Department: CA 23 Jun 1999, Aravco Ltd and Others, Regina (on the application of) v Airport Co-Ordination Ltd: CA 23 Jun 1999, Manchester City Council v Ingram: CA 25 Jun 1999, London Underground Limited v Noel: CA 29 Jun 1999, Shanley v Mersey Docks and Harbour Company General Vargos Shipping Inc: CA 28 Jun 1999, Warsame and Warsame v London Borough of Hounslow: CA 25 Jun 1999, Millington v Secretary of State for Environment Transport and Regions v Shrewsbury and Atcham Borough Council: CA 25 Jun 1999, Chilton v Surrey County Council and Foakes (T/A R F Mechanical Services): CA 24 Jun 1999, Oliver v Calderdale Metropolitan Borough Council: CA 23 Jun 1999, Regina v Her Majestys Coroner for Northumberland ex parte Jacobs: CA 22 Jun 1999, Sheriff v Klyne Tugs (Lowestoft) Ltd: CA 24 Jun 1999, Starke and another (Executors of Brown decd) v Inland Revenue Commissioners: CA 23 May 1995, South and District Finance Plc v Barnes Etc: CA 15 May 1995, Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited: CA 28 May 1999, Thorn EMI Plc v Customs and Excise Commissioners: CA 5 Jun 1995, London Borough of Bromley v Morritt: CA 21 Jun 1999, Kuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Al Bader;Qabazard; Stafford and H Clarkson and Company Limited; Mccoy; Kuwait Petroleum Corporation and Others: CA 28 May 1999, Worby, Worby and Worby v Rosser: CA 28 May 1999, Bajwa v British Airways plc; Whitehouse v Smith; Wilson v Mid Glamorgan Council and Sheppard: CA 28 May 1999. 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