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). The case centred upon the liability of the police for the nervous shock suffered in consequence of the events of the Hillsborough disaster . 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. Packenham v Irish Ferries . These standard criteria have made it more difficult to claim damages in Irish courts. 2819 Words. In support of the first proposition, the defendants rely on the principles developed in a trilogy of House of Lords decisions commencing with Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, continuing with Page v Smith [1996] AC 155, and culminating in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (on . No plagiarism, guaranteed! . The secondary victims must be close to the accident both in terms of time and place. Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the . In that case, as long as the claimants can establish that there is a kind of close tie of love with the injured person and because of having such a relationship the claimant is mentally disturbed or shocked when the loved one suffers serious physical peril or injury. The Categorisation of Primary and Secondary Victims A. In the case of Frost v Chief Constable of South Yorkshire Police [1999] Lord Steyn stated that the area of Tort Law relating to psychiatric trauma is rather complex. That is to say, the secondary victims must establish a close relationship with the primary victims. . 5th Oct 2021 of Ireland (1884) illustrate that even though no physical injury occurred, the plaintiff was clearly in physical danger and therefore was allowed recovery. 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. 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 test of reasonable foreseeability was applied and issues of space, time and relationship were considerations in determining the degree of foreseeability of psychiatric illness. Is there any liability for self inflicted physical injury which caused the claimants psychiatric illness? If it was not reasonably forseeable then the defendant owes no duty of care to the claimant and there is no liability for negligence on the part of defendant. [1999] 2 AC 455. Updated: 01 November 2022; Ref: scu.80695. Frost v Chief Constable of South Yorkshire Police [1997] 3 WLR 1194. One of the children had died due to sustaining severe physical injuries almost immediately. However, Mr. Bankes, Atkin and Sargant L.JJ. % See para 1.5 n 14 below. Held: . As a result, the claimant suffered from a nervous shock. (White (Frost) v Chief Constable of S Yorks, pp 500 and 511) The Clinical Negligence cases 1. The second solution is to abolish all the special limiting rules applicable to psychiatric harm. [24] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition. In this case, he categorized the victims in a psychiatric injury cases in to two main . [17] As per Mr. Bankes, Atkin and Sargant L.JJ [1925] 1 K.B 141 at page 142. However, liability could not be avoided if the accident took place very close to him and was so horrific. In this case, notwithstanding the fact that the claimant arrived in to the hospital with a view to see her injured family membrs after two hours, the House of Lords still recognized that as an immediate aftermath. At one stage, the motor lorry started off by itself and went down the incline with a high speed where the claimant left her children playing. Mental Health can have a positive or negative impact on our behaviour, decision-making, and actions, as well as our general health and well-being. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. 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. In the case of Frost v Chief Constable of South Yorkshire Police [5], . hb```R !1CFAFCFAAA KP`L%T98;00`8A$B*oAjb Courts said the following elements are necessary to establish liability for nervous shock The plaintiff must establish that he suffered a recognizable psychiatric illness, the illness must have been shock induced; caused by the defendants act or omission. But, when a bystander of a horrible event suffers from psychiatric injury, it becomes very difficult for him or her to establish a claim and recover damages for psychiatric injury, since such a person is not closely connected to the injured person. 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. In the case of Brice v Brown[4], hysterical personality disorder was considered to be a psychiatric injury. ~M}o"bR[ A\euA. 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. [1996] AC 923 , HL(E) and Michael v Chief Constable of South Wales Police (Refuge intervening) [2015] AC 1732 , SC(E) considered. Firm Rankings. The Irish courts have been much more responsive in allowing recovery for nervous shock. The second issue was- whether the defendant owes a duty of care to the claimant not to inflict any kind of physical injury or harm to himself. Common Law - Evidence Law - Amissibility of Evidence Essays - Use Our Free Law Essays To Help You With Your Law Course Codification of Directors Duties was Unnecessary. Baker v Bolton [1808] EWHC KB J92. *You can also browse our support articles here >. 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. The Plaintiff had a pre-existing chronic fatigue syndrome, which manifested itself from time . [27] As per Lord Keith [1992] 1 AC 310 at page 397. His Lordship further continued that, the present case is distinguishable from the case of King v Phillips[61]. A person will be considered as secondary victim if he was present at the scene of the horrifying event and subsequently sustained a psychiatric injury due to witnessing the accident or event in which other person was involved, although he himself was out of the range of foreseeable physical injury[10]. According to him, in all the psychiatric injury cases, a distinction or classification of the potential claimants is essential. Once the requirement of proximity of relationship is satisfied, the secondary victims must also establish the facts that he had physical proximity to the accident or its immediate aftermath. . Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the plaintiffs claims as employees. So, the law in this area seems to be very rigid and complicated for the secondary victims. Having heard this, the claimant ran approximately hundred yards from her place in order to see her son who was eventually died. 669. The requirement of immediate aftermath principle was firmly established in the case of Mcloughlin v O Brian[67]. The requirement that the secondary victims must be physically present to the accident or its immediate aftermath was for the first time established by Lord Wilberforce in the case of Mcloughlin v O Brian[42] which subsequently had been approved by the House of Lords in the leading case of Alcock v Chief Constable of South Yorkshire[43]. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . A number of claimants had witnessed the horrific scenes on the television or had been informed by a third party. Decent Essays. Frost and Others v Chief Constable of South Yorkshire Police and Others (1996) The Times, 6 November, CA. But the fact of the present case must be considered in accordance with the decision of Bourhill v Young[54] where the House of Lords provided the test-if the defendant have reasonably foreseen any damage to the claimant then he owes a duty of care and liable for negligently causing personal damage. However , he was failed to meet the criteria of immediate aftermath of the disaster. .Cited Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007 The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. 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 Although the boy arrived home eventually but his mother suffered from a nervous shock[45]. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. Music has historically been a key player in society and personal life. Cited Hambrook v Stokes Brothers CA 1925 The defendants employee left a lorry at the top of a steep narrow street unattended, with the engine running and without having taken proper steps to secure it. 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. 2 claims. [7] Nervous Shock-when is it compensable? They took the big metal sheet off the bridge and subsequently put that in a pick up van. Unless and until there is clear evidence of having the close relationship or a close tie of love with the person (primary victims) who is injured or within the zone of danger, the court will not allow any claims for psychiatric injury brought by the secondary victims. To export a reference to this article please select a referencing stye below: UK law covers the laws and legislation of England, Wales, Northern Ireland and Scotland. The plaintiff sought medical advice and was told there was a risk that he could contract mesothelioma. In this chapter, I argue that Alcock was an essentially conservative decision, rather than the reactionary one which it is often assumed to have been . Close ties of love and affection was assumed in relation to parent- child and spouse relationships. Before making any decision, you must read the full case report and take professional advice as appropriate. .Cited Rothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006 Each claimant sought damages after being exposed to asbestos dust. A rescuer or an employee suffering such psychiatric illness is also classified as a secondary victim (unless they are themselves endangered in the event). The law has imposed lots of requirements for the secondary victims before they can successfully make a psychiatric injury claim. In England, the Dulieu v White and Sons [1901]2 KB 66 9 case was a landmark case in terms of the recovery of claims for psychiatric illnesses. However, considering the surrounding circumstances of the present case (King v Phillips), McNair J. Page -v- Smith [1995] 2 All ER 736 at 759, 761 per Lord Lloyd. Firstly, it fell to be determined whether an employer owed a duty of care to protect their employees from psychiatric injuries they may incur in the course of their employment. Cited Best v Samuel Fox and Co Ltd 1952 The court considered liability for injury to secondary victims. The issue of communication by television was raised but not adequately dealt with. At common law a distinction is drawn between what is merely the ordinary emotion of grief, anxiety, fear and transient shock which does not constitute sufficient damage and the recognisable psychiatric illness that is established by expert medical evidence. [55] As per Denning LJ [1953] 1 All ER 617 at page 625. . 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. Anxiety v stress. 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. In this case, the claimant-namely Mr. McCarthy also lost his half brother in the Hillsborough disaster. Also the plaintiff had to establish that the nervous shock caused by the accident, resulted from her fear for her own safety. Frost and Others v Chief Constable of South Yorkshire Police and Others (1996) The Times, 6 November, CA . The lead case on secondary victim claims is Alcock v Chief Constable of South Yorkshire Police [1992] which sets out a 4-stage test known as the control mechanisms. 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. The claimant was a fire officer who attended the tragic accident being informed in the course of his employment. In this case, the defendants servant negligently left a motor lorry on a street with the engine running. The mother came across the tricycle which was lying underneath the taxicab but failed to see the boy. The claim was rejected by the House of Lords on the basis that none of the claimants could be considered "primary . Although the plaintiff did not suffer physical injury, the traumatic incident (a driver lost control of his team of horses and drove them into the building where the plaintiff was working behind her husbands bar) led to nervous shock and the premature birth of her child. At the trial, Branson J. took the opinion that, the claimant will not be entitled to establish a claim for nervous shock and recover any kind of damages if she had not suffered the shock through the fear of her own safety. In this instance police officers were seeking compensation on the basis that they had suffered psychiatric illness as a result of rescuing victims after the crush. Recovery, on the other hand, for a secondary victim is differentiated and is much more restricted. .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. It was held by Salmon J. After a long examination of the case law by several of their Lordships, the three control HL dismissed their claims since they were suffering extreme grief, not a psychiatric illness. [60]did not agree with the arguments put by the defendant but he agreed with the decision given by Salmon J. Such a duty of care must be aplied to everyone in the vicinity particularly to a mother who had the fear for psysical safety to her children. This chapter considers the landmark decision in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 concerning liability for psychiatric injury, or 'nervous shock'. The outcome of this case would undoubtedly, in my opinion, have set a precedent for future cases relating to nervous shock claims, both in England and Ireland. (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. The court held that the defendant was liable for negligence and allowed the claimant to recover damages for psychaitric illness as the mental injury to the claimant was reasonably foreseeable by the defendant[65]. White v Chief Constable of South Yorkshire. The court allowed the claims of Mr. McCarthy as he satisfied the Alcock criteria for recovery of claims for psychiatric illness. The carriageway was too high that any person fell from that distance would unlikely to survive. [45] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition. On the otherhand, the defendant admitted that he was negligent in relation to the accident of the boy but he denied any kind of liability or duty of care towards the claimant as far as her psychiatric injury was concerned. 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. . In the case of bystanders, it is not generally foreseeable by the defendants that such a person would suffer from psychiatric injury. The teenager, who is now fighting for his life, was struck by a blue Mini Cooper at the junction of Leeds Road and Muffit Lane in Heckmondwike. Only Parliament could take such a step. Prior to this, the initial response of the common law to claims relating to nervous shock, was to deny responsibility. Note White was known as Frost v. Chief Constable of South Yorkshire Police in the Court of Appeal] LORD GOFF My Lords, These appeals arise from further proceedings following the tragic events which occurred at the Hillsborough Football Stadium in Sheffield on 15 April 1989, when 95 spectators died and hundreds more were injured, one fatally, as . The unsuccessful claimants made a cross appeal to the Court of Appeal against the judges decision whereby the defendants also appealed against the ten successful claimants. So, in this situation- Singleton LJ. In favour of this argument the claimant relied on the decision given by the House of Lords in the case of Hambrook v Stokes Bros[46]. The apparent injustice of this position has been acknowledged . [7] Again, Hoffman L.J in the case of Page v Smith[8] defined psychiatric illness as a mental trauma. 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. School King's College London; Course Title LAW 10999; Uploaded By ColonelHeatKudu28. As a result, the law in this area seems to be complex as well as inconsistent. That appears to be the course advocated by Mullany and Handford, Tort Liability for Psychiatric Damage. Although, there was a rebuttable presumption that, in some cases, the close tie of love may exist between the engaged couples which might be even stronger than that of the married couples. 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. X (Adopted Child: Access To Court File): FC 9 Sep 2014, Frost and Others v Chief Constable of South Yorkshire and Others, Alcock and Others v Chief Constable of South Yorkshire Police, Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1), Glen and Other v Korean Airlines Company Ltd, Mullaney v Chief Constable of West Midlands Police, McLoughlin v Jones; McLoughlin v Grovers (a Firm), Campbell v North Lanarkshire Council and Scottish Power Plc, Rothwell v Chemical and Insulating Co Ltd and Another, Waters v Commissioner of Police for the Metropolis, French and others v Chief Constable of Sussex Police, Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar, Zurich Insurance Plc UK Branch v International Energy Group Ltd, Paul and Another v The Royal Wolverhampton NHS Trust, James-Bowen and Others v Commissioner of Police of The Metropolis, 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. However, in this case, it was held by the House of Lords that, none of the appellants were entitled to establish a claim and recover damages for psychiatric illness. At that time she was three of four months advanced in pregnancy. 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. [41] Kay Wheat (2003) Proximity and Nervous Shock Common Law World Review 32 4 (313). swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. The issue before the court was whether any person is entitled to establish a claim for psychiatric illness which has been sustained through the fear or apprehension of physical injury to others. Many of the spectators saw their friends and relatives die in the crush and suffered nervous shock after the incident. After the dismissal from the Court of Appeal, ten of the claimants made an appeal to the House of Lords against the decision given by the Court of Appeal. The police failed to control crowed at the match. 141. Steyn's introductory observations in his speech in R(S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196, which concerned DNA, emphasised the public benefits in law enforcement agencies using new technology at [1]- [2]: "1. Secondly, C argued that they fell within the ambit of primary victims, and should thus be permitted to succeed with an ordinary claim in negligence. [65] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition. He brought an action for negligently inflicted psychiatric illness against the defendants. The caimant was summoned by the hospital authority in order to see her injured family members. Cazalet J. agreed with the claimant that he meets all the recovery criteria that govern a claim for psychiatric injury sustained by him. Keywords: rescue; compensation for hillsborough rescuers. It must be left to Parliament to undertake the task of radical law reform.. [57] A Selection Of Cases Illustrative of the English Law of Tort by Kenny, Courtney Stanhope: Fifth Edition. Both the judgements given by Stephenson and Griffith LJ was appreciated and therefore agreed by Cumming-Bruce LJ. 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. . 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