[45] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition. The Categorisation of Primary and Secondary Victims A. Donaghue v Stevenson [1932] A.C. 532. 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. reversed Court of Appeal decision in Frost v Chief Constable of South Yorkshire [1997] 1 All ER 540, which found Ps were primary victims as rescuers; It seems apparent from the Alcock case judgments that the court will only emphasize on close tie of love and affection before allowing any secondary victims to establish a claim and recover damages for psychiatric illness. Held: The definition of the work expected of him did not justify the demand placed upon him. 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. The court allowed the claims of Mr. McCarthy as he satisfied the Alcock criteria for recovery of claims for psychiatric illness. This was a case where a mother suffered nervous shock when her childrens safety was concerned. In order to establish a claim and recover damages for psychiatric illness the secondary victims must satisfy the proximity of relationship[15]. The very moment Smith was being thrown off the van by the wind, Robertson did not in fact see what happened as he was driving. 12 Pages. He further took the view that, the cases where there is insufficient proximity of relationship must be very carefully considered before allowing the claimants for psychiatric injury claims[20]. [50] stated that the present case is not a margianl one. 10 Alcock v Chief Constable of South Yorkshire Police . 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. . The only prudent course is to treat the pragmatic categories as reflected in in authoritative decisions such as the Alcock case and Page v. Smith as settled for the time being, but by and large to leave any expansion or development in this corner of the law to Parliament. C brought an action in negligence (and/or breach of statutory duty) against their employer, the Chief Constable of South Yorkshire Police (D), for . [14] Secondary Victims and Nervous Shock by M Dunne (2000) BR 383. The requirement of immediate aftermath principle was firmly established in the case of Mcloughlin v O Brian[67]. 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. 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. Any opinions, findings, conclusions, or recommendations expressed in this dissertation are those of the authors and do not necessarily reflect the views of UKDiss.com. [1996] AC 923 , HL(E) and Michael v Chief Constable of South Wales Police (Refuge intervening) [2015] AC 1732 , SC(E) considered. 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. 141. The most commonly medically recognised illness of this type is Post Traumatic Stress Disorder (PTSD). 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. They could only recover if they were exposed to physical danger as primary victims. Packenham v Irish Ferries . Moreover, a rescuer in relation to whom physical injury was not reasonably foreseeable could not recover damages for psychiatric injury sustained by witnessing, or participating in the aftermath of, an accident which had caused death or injury to others; such rescuers were to be categorised as secondary victims, and so would have to meet the conditions specified by Lord Oliver in Alcock. Then she went to see another child and found him unconscious. Others identified bodies in temporary constructed morgues in the stadium. 669. However, subsequently Lord Lloyd in the case of Page v Smith[13]further emphasized upon the distinction between the primary and secondary victims. An action for negligence was brought into the court against the Chief Constable of South Yorkshire Police. The House of Lords however, held that for the purposes of distinction between primary and secondary victims, that rescuers were not in a special position in the law. /Filter /LZWDecode Byrne v Southern and Western RY .Co. 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. 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. His widow claimed in nervous shock, saying that it had eventually led to his own death. White v Chief Constable of the Yorkshire Police [1998] 3 WLR 1509. Due to the accident, the claimants husband suffered from bruising and the other children suffered from severe physical injuries and shock. Download Citation | Frost (or White) v Chief Constable of South Yorkshire Police [1999] 2 AC 455 | Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments . In relation to employer/employee relationship and duty of care the courts did not uphold the principles of the above cases. On that occasion the law lords removed any special rights of employees or . When the defendant started backing his car out, Keith Keel began to give directions to the defendant from behind the car in order to prevent any collision with the pillar or any other cars. In Kelly v Hennessy [1995] 3IR.253 CJ Hamilton laid down criteria, which have become the standard test for nervous shock. Having heard this, the claimant ran approximately hundred yards from her place in order to see her son who was eventually died. 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. At common law the secondary victims (like the bystanders or spectators) who suffer psychiatric illness as a result of witnessing a defendant negligently endangering or injuring others who are unrelated to them in love and affection, cannot recover. View examples of our professional work here. Personal Injury, Police, Damages, Negligence, Updated: 11 November 2021; Ref: scu.158976. So, according to the decision given by the House of Lords in this case, the court will only allow the secondary victims to establish a claim and recover damages for psychiatric illness if the following three elements are satisfied by the claimants. Up until the early 20th century in England, courts have been reluctant to allow recovery for nervous shock. He was not a rescuer, and nor had . Copyright 2003 - 2023 - UKDiss.com is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. The lorry ran violently down the hill. Close ties of love and affection was assumed in relation to parent- child and spouse relationships. 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. . All work is written to order. The claimants were secondary victims. [25] As per Parker LJ [1991] 3 All ER 88 at 92-94. The plaintiffs wife had been walking up the . No issues of. [66] Michaell A Jones, Liability for Psychiatric Illness More Principle, Less Subtlety? [1995] 4 Web JCLI. 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 . His Lordship further continued that, the present case is distinguishable from the case of King v Phillips[61]. Although the boy arrived home eventually but his mother suffered from a nervous shock[45]. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. After that she found her husband injured and covered with mud and oil. 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. 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 . had introduced the Special Rule . Lord Dyson MR felt that damages for psychiatric illness could not be recovered in respect of consequences witnessed months, and . 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 Taylor v A Novo (UK) Ltd CA 18-Mar-2013 The deceased had suffered a head injury at work from the defendants admitted negligence. Another appellant, namely Mr. Robert Alcock, was present in the stadium and lost his brother in law but still failed in his action as it was not reasonably foreseeable by the defendants that he would suffer psychiatric illness. In this case, the defendants servant negligently left a motor lorry on a street with the engine running. 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 present law in this area seems to be very rigid and restrictive for the secondary victims. . .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. Lists of cited by and citing cases may be incomplete. 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]. Disclaimer: This dissertation has been written by a student and is not an example of our professional work, which you can see examples of here. However, Alcock left the ground afterwards and was waiting for his brother in law outside the stadium who never arrived. The plaintiff, Mr Smith was deemed to be a primary victim, since he was involved in the accident and risked personal injury. [1] Nicolas N (2002), A Remedy for Nervous Shock or Psychiatric Harm- Who Pays?-Volume 9, Number 4. Eventually, his doctor prescribed him to take anti-depressant drugs. In Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455, the House of Lords applied that distinction to police officers (and others) who were not themselves within the zone of physical danger caused by the defendant's negligence, but had to deal with the consequences of catastrophic harm to others in the course of their duties . Case summaries. The Supreme Courts decision was to disallow recovery as there was no more than a remote risk of contracting a disease. 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. In the case of Brice v Brown[4], hysterical personality disorder was considered to be a psychiatric injury. The victims were taken to the nearest hospital by that neighbour. Take a look at some weird laws from around the world! [50] As per McNair J. He successfully adduced evidence that there was a very close and intimate relationship between him and his half brothers[34]. 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. The claimant must show that his / her injury was reasonably foreseeable, although Lord Wilberforce did state that foreseeability does not of itself automatically lead to a duty of care. Initially Lord Bridges viewpoint held but Lord Wilberforce argument gathered credence,as evident in the following case. Both cars suffered considerable damage but the drivers escaped physical injury. [65] Cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition. Finally, the secondary victim is required to satisfy the court that his psychiatric illness was a direct result of witnessing or hearing of the traumatic event or its immediate aftermath[26]. It must be left to Parliament to undertake the task of radical law reform.. The accident took place when the victims car collided with the defendants lorry which was itself collided with another lorry. In 1997, the claimant initiated an action for psychiatric illness against the defendant. Cited Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991 The plaintiffs sought damages for nervous shock. Employment > Health and safety; The court differentiated damage by fire from other types of physical damage to property for the purposes of liability in tort, saying We have come back to the plain . A rescuer, not himself exposed to physical risk by being involved in a rescue was a secondary victim, and as such not entitled to claim. . Cited Malcolm v Broadhurst QBD 1970 The principle of foreseeability of psychiatric injury is subject to the qualification that, where the psychiatric injury suffered by the plaintiff is consequential upon physical injury for which the defendant is responsible in law, the defendant . %PDF-1.5 % The mother was so frightened as soon as she came across the scene. The most recent of which was Frost v The Chief Constable of South Yorkshire which resulted from the Hillsborough tragedy. White v Chief Constable of South Yorkshire [1999] 2 AC 455 All of the claimants were police officers who had been on duty the day of the Hillsborough Stadium Disaster. 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. Only full case reports are accepted in court. . After the disaster took place, the match was abandoned and he started looking for his brothers but couldnt find them out. He had known Smith just as a colleague for few years. 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. She suffered nervous shock that affected her pregnancy and caused her injury. Lord Steyn's observation in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455, was that while, "the law on the recovery of compensation for pure psychiatric harm is . Held: The claim failed: these claimants have no . Two of the claimants found their relatives or friend severely injured whereby one of them had his relative who escaped unhurt. The Court of Appeal in Frost v Chief Constable of Yorkshire Police [1997] 3 WLR 1194 (by a majority) had held that the police officers who were allowed to recover for their psychiatric illness as a result of carrying out their professional duties as rescuers and/or employees at the disastrous Hillsborough football stadium stampede were classifiable as primary victims. At that time she was three of four months advanced in pregnancy. . 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. As far as the claims for psychiatric illness is concerned, it was the case of Hambrook v Stokes Bros[16], where the English courts for the first time recognized a claim for psychiatric illness by the secondary victims. Looking for a flexible role? The court took the view that, none of the claimants were entitled to recover damages for psychiatric illness. However, an action was brought by the mother for psychiatric injury against the defendant. The House of Lords (by a majority) in Page v Smith, enhanced the recovery of the primary victim over the secondary victim. 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 . This . 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. The boy screamed loud enough and tried to take his foot out the cars wheel by kicking the car with the other foot. Music has historically been a key player in society and personal life. .Cited Rothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006 Each claimant sought damages after being exposed to asbestos dust. This was a case which involved a huge disaster in the Hillsborough football stadium[23]. 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. 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. Difficult point of law about the circumstances in which a defendant who owes a duty of care . 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 In Mcloughlin case, Lord Wilberforce contrasted the closest of family ties, for instance, the relationship between husband and wife and parent and child, with the ordinary bystanders and considered the potential claimants who are entitled to bring an action against the defendants for psychiatric injury. [15] Kay Wheat (2003) Proximity and Nervous Shock Common Law World Review 32 4 (313). .Cited Glen and Other v Korean Airlines Company Ltd QBD 28-Mar-2003 The claimant sought damages for personal injuries under the Act. All of them were connected in various ways . Section A The codification of directors duties was an unnecessary step. Only full case reports are accepted in court. But that would be contrary to precedent and, in any event, highly controversial. . Consequently, Smith was killed as he fell a few feet on to the girder below the carriageway. The court did not allow any damages to the claimant for her psychiatric injury. The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy. 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 . They were police officers who had been subject to unsuccessful proceedings following a shooting of a member of the public by their force. 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. The case centred upon the liability of the police for the nervous shock suffered in consequence of the events of the Hillsborough disaster . 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]. He went on stating that, due to the policy considerations, the arguments against there being a duty of care prevails over the arguments in favour of being there such a duty of care. A rescuer or an employee suffering such psychiatric illness is also classified as a secondary victim (unless they are themselves endangered in the event). 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. The claimant appealed to the House of Lords against the decision given by McNair J. Singleton LJ. 56 Bourhill v YoungAlcock v Chief Constable of South Yorkshire Police [1943] AC 92. Held: The general rules restricting the recovery of damages for . 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. The apparent injustice of this position has been acknowledged . [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. Held: Psychiatric injury is a recognised form of personal injury, and no statute . The claimant further argued that the defendant by causing an accident to the boy negligently had been in breach of his duty and was liable to for all the direct consequences of the breach, no matter if the damage to the claimant was reasonably forseeable or not. denitions given by Lord Oliver in Alcock v Chief Constable of the South Yorkshire Police[1992] are sufcient for present purposes: a primary victim is someone 'who is involved either mediately or immediately as a participant in an accident' a secondary victim is someone who is 'no more than a passive and unwilling witness of an . In the case of bystanders, it is not generally foreseeable by the defendants that such a person would suffer from psychiatric injury. 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. 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 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. This successful claim, led to a further limitation being developed, namely, that it would not be sufficient to fullfil the proximity requirement to be told of the accident by a third party. The first is to wipe out recovery in tort for pure psychiatric injury. Frost v Chief Constable of Yorkshire Police [1997] 3 WLR 1194. The case Alcock v Chief Constable of Yorkshire Police relates to claims brought by Alcock and several other claimants after the Hillsborough disaster in 1989. Alcock and ors v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 As is well known, the case of Alcock involved claims by those who witnessed the death of their loved ones in the Hillsborough disaster of 1989. In order for the claimant to successfully recover compensation the court needs to consider an amalgam of rules and exceptions as . Although he did not suffer physical injury, the crash he claimed resulted in chronic fatigue syndrome. 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. 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) . The horrible accident took place when the employees were removing a big thin piece of metal sheeting which was lying on the south-bound carriageway. 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). See para 1.5 n 14 below. 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. 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. Fletcher v Commissioners for Public Works [2003] 2 I.L.R.M.94. 2 claims. However, during the journey, a very strong wind thrown the metal sheet and Smith away while he was sitting on top of it. The plaintiff sought medical advice and was told there was a risk that he could contract mesothelioma. 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. 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. Since they were not endangered in the discharge of their service or in rescuing, as employees and/or rescuers, the police officers were only secondary victims. Primary victims are victims who are imperilled or reasonably believe themselves to be imperilled by the defendants negligence.Lord Steyn said: the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify. Appeal from - White, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998. [27] As per Lord Keith [1992] 1 AC 310 at page 397. So, finally, the House of Lord dismissed the appeal made by the claimant. In the case of Frost v Chief Constable of South Yorkshire Police [5], . 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. 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. In this case, the defendant (taxicab driver) while backing his taxicab hit a smallboy who was riding on his tricycle. According to Stephenson LJ[69], although the claimants psychiatric illness was reasonably forseeable by the defendants and they owed a duty of care to the claimant, but it was policy considerations that hampered the claimant from establishing a claim and recover damages for psychiatric illness. Eventually she died as a result of that injury. 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. [71] As per Cumming Bruce LJ. The best example is Boardman and Another v Sanderson and Another[56]. In that case, the defendant did not reasonably foresee that the claimant would suffer from psychiatric injury as she was too far away from the actual place of the accident. In this case, the court considered chronic fatigue syndrome to be a recognizable psychiatric injury[9]. According to him, in all the psychiatric injury cases, a distinction or classification of the potential claimants is essential. The case for such a course has been argued by Professor Stapleton. This principle was later applied in Alcock v Chief Constable of South Yorkshire Police. He further considered that, such a proximity relationship or close tie of love and affection might exist between the family members or friends. v The Chief Constable Of South Yorkshire Police ( [1997]1 All E R.540), their Lordships holding by a majority of 3 to 2 that the claims of the police officers had been rightly dismissed by the trial judge . 2023 - UKDiss.com is a trading name of Business Bliss Consultants FZE, a distinction or of. Was involved in an accident at work, where his co-worker died illness the. By that neighbour 88 frost v chief constable of south yorkshire 92-94 Constable of South Yorkshire Police [ 1943 ] AC 92 officers who had subject... Temporary constructed morgues in the Hillsborough disaster registered in United Arab Emirates claim recover... 65 ] cases and Commentary on Tort, by Barbara Harvey & John Marston, 5th Edition argument gathered,... A. Donaghue v Stevenson [ 1932 ] A.C. 532 suffered in consequence of the claimants were to. 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