A more recent version of these Negligence Nervous Shock notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Tort Law: Negligence - Nervous Shock/Psychiatric Damage
?????NB: this comes under 'duty of care' within general negligence, but of a specific type.
?????Duty of care recap o Duty of care is only one element of a negligence claim (breach, causation, remoteness and defences must always be considered after establishing a duty) o Whether a duty of care is owed is determined by the type of loss being suffered o The approach to finding a duty of care, and the test used, has changed over the years depending on whether the courts have wanted to expand or restrict liability o There is overlap between the three stages of foreseeability, proximity and fair, just and reasonableness
?????If doing this in an exam, you have to cover all the other stages. Today---only considering whether duty of care is owed.
?????1970s-80s: courts actively trying to widen liability; 1990s, trying to restrict.
?????Certain problem areas, where courts take different approach to imposing a duty of care, where either (1) the court is more cautious due to the type of harm caused; (2) where court is concerned about the way in which harm is inflicted. o Egs of (1)---where courts cautious due to type of harm caused: eg nervous shock; pure economic loss. o Egs of (2): harm brought about a negligent misstatement, an omission, or acts of 3rd parties.
?????Problem categories: where courts have difficulty finding duty of care. Psychiatric damage is one of those. So you use precedent to guide us in applying elements of the test.
?????'Floodgates' argument in all these areas. Courts fear of unrestricted liability causing uncontrollable and prove unnecessarily burdensome on defendants; might lead claimants to making fraudulent/exaggerates claims.
?????NB a claim for nervous shock is not a separate tort---the tort is still negligence, the loss is nervous shock Basics of psychiatric damage
* 'Nervous shock' = claimant suffered some form of psychiatric illness/damage as a result of the perception of traumatic events.
* Psychiatric damage is not a separate tort - it is a type of loss claimed for in tort of negligence.
* Psychiatric damage is a problem category within duty of care so a test must always be applied (using precedents for guidance on the application of the test)
1 ?????Psychiatric damage is only an issue where there is no personal injury. Psychiatric damage claims are only problematic where there is no physical injury---we are looking at cases where defendant's negligence produced a shock reaction.
* Psychiatric damage also referred to as nervous shock, psychiatric injury, psychiatric harm and psychiatric illness Structure of answering questions
? (1) Loss must be recognized. Additional step here: you have to identify a recognized condition.
? (2) Identify type of victim.
? (3) Apply appropriate test (which test depends on type of victim) to establish duty.
? (4) Discuss remaining elements of negligence (breach, causation, remoteness, defences)---for psychiatric damages claims, the duty of care bit is normally the problematic bit, but everything else is also relevant. History
? Slow development in case law during c20.
? Initially: recovery only permitted where claimant had also suffered some physical damage. Courts fearful of fraudulent claims.
? Dulieu v White (1901): Claimant working in a pub, is pregnant. Horse & carriage crashed into bar. She was not physically injured, but she suffered a shock reaction as she thought she was going to be hit. One of first cases where recognised you don't need to have physical injury to claim---but you have to claim for a condition, not just because you are frightened. Was held that to recover, a claimant should have placed in fear for his own safety.
? That restriction lifted in Hambrook v Stokes Bros (1925): held instead that recovery could only be made where the victim perceived the events giving rise to the claim; not told of traumatic events by another.
? McLoughlin v O'Brian (1983): claimant informed of an accident involving her fam; went to hospital, saw members of fam in distressed/injured state; suffered nervous shock. HL held: entitled to recover. Judges said wrong to use basic test of foresight of harm, and additional policy limitations needed. But happy to extend liability to those who witnessed in the immediate aftermath of an event. Loss must be recognised
? What type of losses can be claimed for?---> must be medically recognised psychiatric condition. o Lord Lloyd in Page v Smith: said floodgates wouldn't open because you have to (1) prove that physical harm was
2 ??reasonably foreseeable; (2) prove that their particular type of nervous shock was recoverable. Liability will not arise for fear, distress or mental grief caused by negligence. Cannot claim for normal human emotions (eg grief), has to be a recognised condition caused by the shock. o Reilly v Merseyside (1995):: Claim in negligence for a couple being stuck in a lift for over an hour. Court: cannot claim a negligence, you haven't suffered a recognised psychiatric condition. o A medical definition is used to define psychiatric damage: reference is made both to the Diagnostic &
Statistical Manual of Mental Disorders of the American Psychiatric Association; and the Glossary of Mental Disorders in the International Classification of Diseases. o Hinz v Berry (1970): Denning judgement. Car wipes out husband. Mother had witnessed it husband being killed by car. Mother was claiming in her own right, that as a result of defendant's negligence, I suffered a psychiatric condition for witnessing the event. She was also making other claims.
? Denning said, the only thing she could claim for, in her own right, was the part of the psychiatric damage caused directly by the shock of witnessing the accident, not other anxieties which would have arisen from her husband dying whether she directly witnessed it or not. Careful to limit the claims, worried about floodgates. Examples and definitions of nervous shock: o 'Depression' (Lord Denning in HInz v Berry). o A 'positive psychiatric illness' (Lord Bridge, McLoughlin v O'Brian; and Lord Oliver in Alcock). A physical illness, sustained after the event, and resulting from nervous shock, may also form the subject of a claim: But it must first be established that the psychiatric condition giving rise to the physical injury was a recognised psychiatric condition, and that both the psychiatric and physical injury are 'material'. o Eg miscarriage, Bourhill v Young; or a heart attack. o Eg where claimant's injuries, both psychological and physical, were not considered material: Mazhar Hussain v Chief Constable of West Mercia (2008). New conditions are currently being recognised: o Such as PTSD: Re GB, RB and RP (1997). o ME (Myalgic Encephalomyelitis): Page v Smith (1996). o Even grief/bereavement may be classific as a positive psychiatric illness where the pathological grief syndrome geos beyond what is classified as normal human emotion, as in Veron v Bosley (No 1) (1997).
3 The position now
? Fundamental development---distinction between 'primary' and 'secondary' victim, in Alcock: Type of victim (Primary or Secondary)
? Crucial to classify the victim. Much easier to claim as a primary victim, different tests used to establish whether a duty of care is owed, so crucial to make the distinction.
? Alcock v Chief Constable of South Yorkshire I1991), this set out difference between primary and secondary -definition had been given in Page v Smith, summarised in Alcock: o Primary victim: Suffers psychiatric condition as a result of reasonable fear for their own physical safety (nb: they don't actually suffer physical injury, otherwise would be ordinary negligence action for PI, applying Caparo rules). So test for primary victim: (1) in the danger zone; and (2) reasonably feared for their own safety. o Secondary victim: suffers nervous shock due to fear for someone else's safety, but they themselves are not in any fear for their own physical safety. Not involved in the event.
? Early eg of a primary victim, Dulieu v White (1901): see above. Claimant a pregnant barmaid; defendant crashed his coach into pub; nervous shock.
? More recent eg of a primary victim, Page v Smith (1996): claimant involved in a car crash, D's negligence. No physical injury, but psychological effect of the crash worsened his ME (Myalgic Encephalopathy). Primary victim because condition arose from reasonable fear for his own physical safety.
? Eg of secondary victim, McLoughlin v O'Brian: see above. Secondary victim because suffered psychiatric damage as a result of concern for her fam---did not fear for her own safety. Likewise, all claimants in Alcock were secondary---nervous shock due to witnessing friends/relatives in dangers. Problem cases---Bystanders and Rescuers
? Neither bystanders nor rescuers are given any special status in this area of law---clarified in more recent cases. As with any other claimant, they must be classified as either primary or secondary victim.
? If rescuer/bystanders (or anyone else) suffers nervous shock as result of fearing for his own safety, then primary victim:
? If rescuers involved, courts tend to be generous, call them primary victims: o Chadwick v British Railways Board (1967): defendant was involved in helping rescue people after a train crash. Court said he was in the danger zone, the train was unstable and
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