BPP SG Ch 4: Nervous Shock

Question 1

What kind of action is a claim for nervous shock?

Answer 1

a negligence action

Question 2

Define nervous shock.

Answer 2

• C has suffered some form of psychiatric illness or harm
• as a result of the perception of traumatic events
  (- dealing with liability for psychiatric injury)

Question 3

What case summed up the high point of claims for nervous shock/psychiatric injury?

Answer 3

• McLoughlin v O’Brian
• C was informed of an accident involving her family and suffered nervous shock when she saw them in hospital
• extended liability to those who suffered nervous shock in the immediate aftermath of an event

Question 4

What important distinction is made in nervous shock cases? From what case?

Answer 4

• Alcock v Chief Constable of South Yorkshire Police

- distinction between ‘primary’ and ‘secondary’ victims

Question 5

What is a ‘primary victim’?

Answer 5

• one who suffers nervous shock as a result of reasonable fear for their own physical safety
• objective test
• involved in the traumatic events in question
  (- did not suffer actual harm)

Question 6

What is a ‘secondary victim’?

Answer 6

• a victim who suffers nervous shock as a result of fear for someone else’s safety. No fear for their own safety
• witnesses traumatic events but is not involved in them.

Question 7

Give a case involving a primary victim.

Answer 7

• Page v Smith
• C involved in a car crash caused by D’s negligence
• C suffered no physical injury but the psychological impact of the crash worsened his preexisting ME and he became permanently disabled
• primary victim: his condition arose from a reasonable fear for his own safety

Question 8

Give a case involving a secondary victim.

Answer 8

• McLoughlin v O’Brian
• C suffered psychological damage as a result of concern for her family
• did not fear for her safety at any point

Question 9

How does the issue of bystanders and rescuers relate to primary/secondary victims? Give an example.

Answer 9

• to succeed in a claim for nervous shock they must be categorised as a primary or secondary victim and treated as such.
• eg Wigg v British Railways Board - the train driver who tried to rescue someone trapped under a train was classed as a primary victim who suffered nervous shock as a result of fearing for his own safety

Question 10

What case set out guidelines for bystanders wanting to claim? What are they?

Answer 10

• McFarlane v EE Caledonia
  1) C must have been in the actual area of danger and escaped through good fortune or chance
  2) although C was not actually in danger, he reasonably thought he was because of the sudden and unexpected nature of the event
  3) although not originally within the area of danger he came into it later as a rescuer

Question 11

What is the test for establishing a duty of care for primary victims? Where does it come from

Answer 11

• decided in Page v Smith:
• normal Caparo v Dickman test
• much easier than for secondary victims.

Question 12

How does foreseeability work in relation to establishing a duty of care for primary victims? From what case?

Answer 12

• Page v Smith

- if physical injuries are foreseeable to a particular claimant then they can recover damages for psychiatric injuries

Question 13

How is the ‘floodgates’ issue guarded against for claims by primary victims?

Answer 13

• Page v Smith

- claimant must have suffered a medically recognised form of psychiatric illness.

Question 14

Give a case where the harm suffered did not meet the medical requirements.

Answer 14

• Reilly v Merseyside HA

- trapped in a lift for over an hour

Question 15

What happens if physical damage results from psychiatric harm?

Answer 15

• eg a miscarriage (Bourhill v Young) or heart attack

- must establish that both the psychiatric harm and the physical harm are material and are recognised conditions.

Question 16

What is the leading case relating to secondary victims?

Answer 16

Alcock v Chief Constable of South Yorkshire

Question 17

What criteria need to be met to establish whether a duty of care is owed to a secondary victim? What case?

Answer 17

- Alcock
RPRPF
1) Recognised psychiatric illness?
2) Foreseeability of psychiatric harm
3) Relationship between claimant and 'victim'
4) Proximity in time and space
5) manner of Perception

Question 18

How is foreseeability of harm established in regard to secondary victims?

Answer 18

• must be reasonably foreseeable that psychiatric harm specifically was reasonably foreseeable
• eg Bourhill v Young: not foreseeable for the motorcyclist (who crashed and killed himself) that a pregnant woman who heard the crash might suffer psychiatric shock.

Question 19

How does the thin skull rule relate to foreseeability of damage in nervous shock cases for secondary victims?

Answer 19

• court expects people to have ‘normal fortitude’
• but thin skull does apply if the injury is foreseeable - if the victim suffers extraordinary damage due to their medical circumstances the D must take them as they found them

Question 20

What relationship must be established between the primary and secondary victims for a secondary victim’s claim to succeed?

Answer 20

• Alcock
• closer the relationship, the more likely a duty of care will exist eg mother/child/spouse McLoughlin v O’Brian
• more distant relationships less likely to succeed, but each case judged on own merits. in Alcock, Hillsborough victims were generally not sufficiently close if they were siblings, uncles and aunts or grandparents.

Question 21

What kind of proximity needs to be established in time and space?

Answer 21

• McLoughlin v O’Brian the claimant arrived while the catastrophe was ongoing
  vs
• Alcock one of the claimants arrived 9 hours after the events to identify a body
  BUT
• W v Essex County Council HoL recognised need for flexibility when dealing with new situations and allowed a claim when Cs were far removed from the actual events.

Question 22

What does the requirement for the manner of perception mean?

Answer 22

1) claimant must normally have perceived the events with their own unaided senses and the psychiatric condition arose from this.
- eg McLoughlin witnessing immediate aftermath herself
2) Claimant’s condition must be a ‘reaction to the immediate and horrifying impact’
- eg North Glamorgan NHS Trust v Walters psychiatric illness as a result of negligent medical treatment that led to the rapid death of her child
vs
- Sion v Hampstead HA gradual realisation that negligent care had put her child in intensive care.