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 . Capacity plays a vital role in determining whether a person can exercise autonomy in making choices in all aspects of life, from simple decisions to far-reaching decisions such as Our academic writing and marking services can help you! Times 06-Nov-1996, [1996] EWHC CA 173if(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[320,100],'swarb_co_uk-medrectangle-3','ezslot_6',114,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-3-0'); Bailiiif(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[250,250],'swarb_co_uk-medrectangle-4','ezslot_5',113,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-4-0'); Appeal from Frost and Others v Chief Constable of South Yorkshire QBD 3-Jul-1995 Trained rescuers have to be assumed to have a higher distress threshold because of their training and experience, and if a claim for psychiatric injury is to be made out, they must show some exceptional and particular situation to justify the claim. 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. In the present case, the claimants family members including her husband and three children had a severe road accident. In the case of Brice v Brown[4], hysterical personality disorder was considered to be a psychiatric injury. The courts in different cases have recognized different type of psychiatric illnesses. Similary, the defendant argued that, in the present case, the claimant was far away from the actual place of the accident and did not see what happened there. Held: The claim failed: these claimants have no . Appeal from White, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998 No damages for Psychiatric Harm Alone The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy. 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. This essay aims to provide a critical evaluation of the common law duty of care for negligently inflicted nervous shock in the context of the above statement by Lord Steyn. During the course of the disaster, scenes were broadcasted live on the television. However the crash did result in a recurrence of magic encephalomyelitis (Chronic fatigue syndrome) from which he had suffered for 20 years but was then in remission. [1964] 1 W.L.R CA 1317 at page 1317. During a major football match in the Hillsborough ground, one part of the football stadium was crashed because the South Yorkshire police allowed an excessively large number of spectators in that part of the stadium which was already full. The claimant brought an action against the defendant for causing psychiatric injury to him. Info: 9733 words (39 pages) Dissertation Only Parliament could take such a step. However, during the journey, a very strong wind thrown the metal sheet and Smith away while he was sitting on top of it. However, Mr. Bankes, Atkin and Sargant L.JJ. Frost v Chief Constable of South Yorkshire Police [1998] QB 254 permitting recovery by injured on- duty police officers. . 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. But, it has been seen from some of the above case decisions that, even after satisfying the requirement of proximity of relationship, the court still did not allow the secondary victims claim for psychiatric injury. The boy screamed loud enough and tried to take his foot out the cars wheel by kicking the car with the other foot. In the case of Benson v Lee[62], the claimant was informed that her son had an accident and sustained injuries. 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. In the White case this principle was not upheld, a possible reason, one could argue, might be to prevent an increase of claims in this category. 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. Regretted Page v Smith HL 12-May-1995 The plaintiff was driving his car when the defendant turned into his path. However, in this case, their Lordship took the similar opinion that, the issue of proximity of relationship should be decided on a case by case basis. Lists of cited by and citing cases may be incomplete. Two recent nervous shock cases in Ireland, Fletcher v Commissioners for Public Works [2003] I.L.R.M.94 and Packenham v Irish Ferries Limited [2004] will be discussed , concluding that in Ireland , a policy approach has been adopted based on a standard set of criteria. [39] that- the defendant did not owe any duty of care towards the claimant for not causing a psychiatric injury by self inflicted physical injuries. Cazalet J. agreed with the claimant that he meets all the recovery criteria that govern a claim for psychiatric injury sustained by him. However, to satisfy the proximity of relationship with the primary victims might be considered a major obstacle for the secondary victims when there is an issue of establishing a claim for the psychiatric illness. Free resources to assist you with your legal studies! Mental Health of Adolescent and Young Adult Cancer Survivors. Again this development of the proximity of relationship in this case seems quite unfair to some of the claimants who were seeking compensation as they would not have been aware previously of this .The principle of proximity of time and place was also applied in this case, where a claimant failed to recover. The requirement of immediate aftermath principle was firmly established in the case of Mcloughlin v O Brian[67]. However, as far as their claim for psychiatric illness was concerned, the court was neither convinced with the surrounding facts and circumstances that there was sufficient close tie of love and affection with the claimants and the primary victim nor was convinced that the psychiatric illness that they had sustained was reasonably foreseeable by the defendant in accordance with the recovery criteria for psychiatric illness established in the leading case of Alcock. Most importantly, the development of the law in this area has been influenced by policy considerations, that is to say, to restrict the large number of potential claimants. hYn86 ,tV!%TvIrD9f%E0jBA%r`$)8 Before making any decision, you must read the full case report and take professional advice as appropriate. 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. 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. His brother in law and his nephew also had been present in the football ground who was watching the live match from the terrace. 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. [45] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition. .Cited Waters v Commissioner of Police for the Metropolis HL 27-Jul-2000 A policewoman, having made a complaint of serious sexual assault against a fellow officer complained again that the Commissioner had failed to protect her against retaliatory assaults. Generally, the burden of proving such a close tie of love and affection lies with the person who wishes to establish a claim for psychiatric illness. Sixteen separate actions were brought against him by persons none of whom was present in the area where the disaster occurred, although four of them were elsewhere in the ground. The law on recovery of damages for psychiatric illness is entirely based on common law. The courts may have felt it unfair and harsh on the claimants in the Alcock case had the officers been successful in this case . Having studied this case, I feel it is significant for a number of reasons. The defendant relied on the decision of the case in Bourhill v Young[48] with a view to support his arguement and stated that the psychiatric injury to the mother was not reasonably foreseeable as she was not within the range of reasonable anticipation. The case of White and Others v Chief Constable of South Yorkshire (1998) QB 254 elicited need for necessary distinctions between physical injury and nervous shock and has had an impact on nervous shock claims by bringing other policy considerations into play, for example the Criminal Injuries Compensation Scheme and the Criminal Justice Act of . It must be left to Parliament to undertake the task of radical law reform.. However, the trial judge, Boreham J[68], took the view that- although the claimant was a person of reasonable fortitude and the mental condition that she had suffered due to shock was different from mere grief and sorrow, but it was held that the defendant was not liable for causing psychiatric injury to her because it was not reasonably foreseeable. Lord Goff said: because shock in its nature is capable of affecting so wide a range of people, there is a real need for the law to place some limitation upon the extent of admissible claims. The carriageway was too high that any person fell from that distance would unlikely to survive. He went to the psychiatrist and took medical treatment. While Robertson was driving the van, Smith was sitting on top of the metal sheet. He was not a rescuer, and nor had . In the case of bystanders, it is not generally foreseeable by the defendants that such a person would suffer from psychiatric injury. Positive/Neutral Judicial Consideration . Again, in the case of Fenn v City of Peterborough[64], the claimant arived home couple of minutes after a gas explosion in which he lost his three children. [51] took the view that, if the two cases of Hambrook v Stokes Bros[52] and In re Polemis and Furness, withy & Co. Ltd[53]on which the claimant relied on are considered then the there is every possibility that the decision goes in favour of the claimant. There was a fear that it would be difficult for the courts to distinguish between a genuine claim and a fictitious claim, and also the fear that if one person recovered, this would in turn lead to a possible floodgate of claims. The House of Lords ' Cases In any action for damages in the tort of negligence, the plaintiff has to The court further considered the issue if both the claimants suffered nervous shock as a result of witnessing the accident. 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. miscarriage. 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 . 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. . Although the policy of the court seems to pose a substantial barrier or obstacle to the success of claims of this sort, but the court has justified this policy by showing an intention to restrict wide range of potential claimants who can bring successful action. In this case, he categorized the victims in a psychiatric injury cases in to two main . In this case, he categorized the victims in a psychiatric injury cases in to two main categories- the primary and secondary victims. Free resources to assist you with your university studies! He then got really worried and started looking for him around but there was no trace of his brother in law. The House of Lord were thus called upon to revisit the distinction between primary and secondary victims set out in Alcock v Chief Constable of South Yorkshire ([1992] 1 AC 310). 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. .Cited Salter v UB Frozen Chilled Foods OHCS 25-Jul-2003 The pursuer was involved in an accident at work, where his co-worker died. He had returned to work, but again, did . Although there was a big age difference between them but they had been working together for many years. The Court of Appeal upheld the judgement that was delivered by Boreham J but on different ground. This was a case which involved a huge disaster in the Hillsborough football stadium[23]. (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. Page -v- Smith [1995] 2 All ER 736 at 759, 761 per Lord Lloyd. 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. Having heard this, the claimant ran approximately hundred yards from her place in order to see her son who was eventually died. . .Cited Barber v Somerset County Council HL 1-Apr-2004 A teacher sought damages from his employer after suffering a work related stress breakdown. Irish courts do not use space / time or relationship as limiting factors as applied in some of the previous English cases , but rather these factors are taken into account, although the position in relation to the latter may be changing as evident in Cuddy v May. In this case, the defendants servant negligently left a motor lorry on a street with the engine running. Initially Alcock was not worried about his brother in law as he believed that he would be watching the match from another stand of the stadium which was safe. He drove her to the hospital where she saw her dead daughter, and her husband and two other children seriously injured, all still covered in oil and mud. The court considered her to be outside the area of potential danger. D was under a duty to take reasonable steps to protect his employees from the risk of physical harm, but there was no extension of this duty to protect C from psychiatric harm when they were not exposed to any risk of physical injury. [34] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition. Also the plaintiff had to establish that the nervous shock caused by the accident, resulted from her fear for her own safety. 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. 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. Nor is any duty of care owed to a rescuer lacking ordinary courage. He continued that, the claimants nervous shock was too remote as a head of damage. 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.
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