Wednesday, October 18, 2006


Tuesday 17 October 2006

A busy evening indeed as we discussed the area of nervous shock (psychiatric damage) in the tort of negligence. The usual rule in Donoghue v Stevenson [1932] does not work here. It is almost compulsory to be asked a question in the examination, and one would do well to learn the material. The development of the law on nervous shock makes an excellent essay question.

“Nervous shock” has been used by lawyers to denote a sudden assault on the nervous system of the claimant which causes lasting effects on the health and well-being of the victim. What this means is that we are looking for a sudden impact on the senses which has a long-term effect on a person’s mental health. What it isn’t is the normal sorrow and grief caused by the loss of a loved one, although it is accepted that there can be a ‘pathological grief disorder’, as we shall see later.

There is a distinction to be made, which stems from the case of Alcock (below), between:

PRIMARY victims – actually involved in the incident
SECONDARY victims – witnesses to the horrific event in question

Much of what follows is concerned with secondary victims.

There are problems associated with allowing a claimant to succeed in nervous shock:

FLOODGATES – the possibility of a major disaster which is witnessed by large numbers of people who are traumatically affected by the sight. The Kings Cross fire and Hillsborough football stadium disasters are recent examples.

FRAUDULENT CLAIMS - the difficulty of identifying genuine psychiatric illness.


Whilst early cases were bound to failure due to lack of scientific knowledge, as this has increased the courts have become increasingly willing to accept that ‘nervous shock’ exists.

The first success for nervous shock was Dulieu v White (1901). The claimant, who was pregnant, was working behind the bar of a pub when a horse van was negligently driven into the pub. As a result she suffered shock, resulting in a premature birth. SHE SUCCEEDED BECAUSE SHE WAS IN FEAR OF HER OWN SAFETY.

In Hambrook v Stokes (1925), a lorry, which was negligently left unattended at the top of a hill with the engine running and hand brake off, careered down a steep hill. The claimant’s wife had just left her children round a bend in the road. Seeing the lorry she feared for the safety of her children. She was told that a girl wearing glasses had been injured, and believing it was her daughter she suffered nervous shock and died. Although not within the foreseeable area of then impact she was allowed to recover. A new limitation now existed, it was possible to recover damages WHILST FEARING FOR THE SAFETY OF ANOTHER, although for what she witnessed herself, rather than what she had been told.

Following these two cases 2 factors emerged in determining whether a person owed a duty not to cause nervous shock:

(1) the closeness of the claimant to the accident, & whether the defendant was aware of the presence; and
(2) a relationship between person suffering nervous shock and the person in danger. Relationships other than close family ties were to be recognised.

In Dooley v Cammell Laird (1951) it was held that there could be a sufficiently close relationship between workmates.

The important case of Chadwick v British Transport Commission (1967) it was held that a person who acted negligently owed a duty to a rescuer in respect of nervous shock. The claimant had assisted at the scene of a train crash and suffered nervous shock as a result of what he witnessed there. The recognition of rescuers is based on public policy grounds as the law has no desire to deter rescuers.

The question of when a duty not to cause nervous shock would be owed was considered by the House of Lords in McLoughlin v O’Brien (1983) – the first opportunity of the House of Lords to consider nervous shock since the case of Bourhill v Young (1943) (woman hearing an accident when alighting from a tram). We discussed this case earlier. In the present case the claimant’s husband and her three children were involved in a road accident caused by the defendant’s negligence. She was told about the accident an hour or so after it happened and she was taken to the hospital. She saw her daughter covered with dirt and oil, with cuts to her face. Her husband was in a similar condition. Her son was badly injured and screaming. Her other daughter had died almost immediately. It was held that the claimant could recover damages for her nervous shock. The House of Lords decided unanimously that the driver owed the claimant a duty of care.

As is often the case, the decision was unanimous, but for varying reasons. Lord Wilberforce stated that foreseeability alone was not sufficient, whilst Lords Bridge and Scarman rejected this approach as producing arbitrary results and preferred an approach based on foreseeability alone. In determining whether shock was foreseeable a number of elements including relationship & closeness to the accident would be relevant but not conclusive. Subsequent cases were to show that this was the preferred view.

We will begin by looking at the Hillsborough disaster. On 15th April 1989 a semi-final of the FA Cup was due to be played between Liverpool & Nottingham Forest at Hillsborough, Sheffield. There was a sell-out crowd. The TV were there to record highlights. The match was halted after 6 minutes as the weight of numbers of people in the Leppings Lane pens created such pressure that spectators were trapped against wire separating pens from the pitch. 95 people died, 400 more needed hospital treatment. Thousands witnessed the scene from other parts of the ground, millions saw it on TV or heard it on radio. Many who were watching or listening had loved ones at the match. The broadcast images of the Hillsborough disaster did not depict the suffering or dying of recognisable individuals

Sixteen test cases were brought to determine whether the Chief Constable owed them a duty of care, & were representative of a further 150 further claims. Some claimants were at the ground, whilst others were watching TV. All claimed to have suffered nervous shock.

Jones v Wright (1991) (1st instance). The trial judge held that proximity is what it was about, relationship & geographical.

RELATIONSHIP – relatives other than spouses would be able to claim, they would foreseeably suffer nervous shock. These relatives would include brothers & sisters & grandparents bringing up a child from a baby.

GEOGRAPHICAL – all those inside or immediately outside could claim, as could those who saw it on TV, providing that the relationship issue was settled. Being told, or hearing of it on radio was not enough.

We are now left with:

Failed claimants in the High Court appealing to the Court of Appeal (best friends, perhaps?).
A cross appeal by the defendant (the Chief Constable), alleging that the Trial Judge had gone too far (grandfathers, TV viewers?).

Alcock v Chief Constable South Yorkshire (1991) (Court Of Appeal). The court severely criticised the decision of the trial judge & stated:

The TV viewers claimants must fail as a TV broadcast, whilst reasonably foreseeable that it would be broadcast, the intervention of a third party between the accident & a claimant meant that the TV was not equivalent to the sight or sound of the accident.
Only the relationships that would have succeeded prior to McLoughlin should succeed, unless the defendant could prove that the claimant didn’t have a “relationship of love & care”, e.g. husband & wife who are separated & hate each other, or the claimant’s relationship is equivalent to a parent or spouse, e.g. a grandparent bringing up a child.

Leave to appeal to the House of Lords was granted to ten of the original claimants, & were unanimously dismissed in Alcock v Chief Constable South Yorkshire (1991) (House of Lords). They held that the requirements for a duty of care in nervous shock cases are:

Harm was reasonably foreseeable.
Proximity of relationship between the claimant and the victim. In spouse & parent-child relationships there is a rebuttable presumption, but it is open to other relationships to prove the existence of caring & loving relationships, e.g. Grandfather again, siblings, engaged couples.
Proximity to the accident or its immediate aftermath must be sufficiently close in both terms of time & space.

Sight or sound of the accident will continue to suffice; the law will not compensate shock brought about by a third party communicating it. Lord Jauncey stated that as a matter of public policy the situation of rescuers would not be affected (see Chadwick above).

In Boylan v Keegan [2001] (unreported) and eight-year-old girl had been seriously injured in a road accident. She was being comforted by her mother when she rang her husband to tell him of the accident. He heard her screams and the sounds of the arrival of the ambulance. The girl died two days later, in her father’s arms. He brought a claim for nervous shock. He could not succeed as he was not present at the immediate aftermath, nor had he seen the accident with his own unaided senses.

Another case to arise from Hillsborough concerned claims by police officers, for psychiatric damage is White v Chief Constable of South Yorkshire Police (1999). Again the case concerns members of the rescue services. At Hillsborough. It was held that:

(1) employees can only recover damages in line with Alcock.
(2) Rescuers can recover if it is shown that there was actual or apprehended danger to them.

The position of a mere bystander watching a tragic scene unfold before him was considered in McFarlane v EE Caledonia Ltd (1994), often simply known as the ‘Piper Alpha Oil Rig disaster’. The claimant was employed as a painter on the rig owned by the defendants. The claimant was in his bunk on a support vessel some 550 metres from the rig, when a series of massive explosions occurred on the rig. For 1¾ hours he witnessed the destruction of the rig before being rescued. 164 men were killed in the disaster. He claimed damages for psychiatric illness suffered as a result of what he saw. The Court of Appeal applied Alcock and held that such a claimant could not recover unless the elements of proximity of relationship, time, and place were satisfied. The claimant was not a rescuer as such, although he was in the vicinity of the Piper Alpha disaster, aboard a vessel which went to the assistance of victims of the fire. Neither was he ever close enough to be in reasonable fear for his own safety.

As I have said, liability does not arise for the normal grief and sorrow which follows the death of a loved one. However, if it is so severe as to constitute a pathological grief disorder, a claimant may be able to recover. In Vernon v Bosley (No 1) (1997) the claimant was present whilst attempts were made to salvage a car, containing the bodies of his daughters, from a river. On these facts the court found it impossible to distinguish between the effect on the claimant of seeing the scene of the accident, knowing that his young children were almost certainly dead, and the natural effects of grief and bereavement which followed when their death was confirmed. The abnormal grief reaction which he went on to suffer should not be discounted by the “normal” grief which was to be expected in such circumstances.

The distinction between primary and secondary victims was made by Lord Oliver in Alcock:

PRIMARY – directly involved in the incident as a participant
Secondary – usually a witness to the incident.

The following cases considered the distinction between victims and/or whether they were present at the immediate aftermath:

Greatores v Greatorex [2000]. A fireman who came to rescue his son was not allowed to bring an action against him on the grounds of public policy, as it would lead to family breakdowns.

Atkinson v Seghal [2003]. A woman was searching for her sixteen-year-old daughter and found her at the site of a road accident. She had been killed. She went with her daughter’s body to the mortuary, jugging her battered boy. She showed evidence of an abnormally strong grief reaction and the Court of Appeal said that she was present at the immediate aftermath (the mortuary).

Waters v North Glamorgan NHS Trust [2003]. The claimant suffered pathological grief reaction following the death of her son. He had been negligently dealt with at the hospital, and she remained with him throughout the last thirty-six hours of his life, when the decision was made to turn off a life support machine. The Court of Appeal said that this was one continuing horrific event, and so she could recover damages.

The case of Donachie v C.C. GMP [2004] came before the Court of Appeal to decide whether the claimant, on the facts of the case, was a pri­mary or a secondary victim. On the evening of 2nd November 1997, the claimant was required, in the course of his duty as a police officer seconded to the North West Regional Crime Squad, to attach a tagging device to the underside of a car that the Crime Squad believed belonged to a gang of criminals. The car was parked in a street behind a public house in which the suspected criminals were drinking. The claimant was one of a group of officers instructed to carry out the operation.

In accordance with the usual procedure, the claimant was to attach the device to the underside of the car while the other officers kept watch from in and around a police ‘track­ing’ van to guard against the possibility of the suspects emerging from the public house and catching the claimant. If all had gone well, he should have been able to approach the car, get underneath and attach the device out of sight and then walk away. The device should have immediately begun recording signals to the tracking van.

Unfortunately, and unknown to the claimant and the other officers, the device was fitted with a battery, which although newly fitted and used earlier that day on another vehicle, had failed. When the claimant attached it to the underside of the car, it did not give a signal. The claimant had to return to the car, retrieve the device and take it back to the tracking van where the officers attempted to find out what was wrong with it. Having examined the device and tried to fix it, the claimant had to return to the car and re-attach it. Again, the device did not work and it continued to fail until two battery replacements and seven more trips by the claimant to the car. The claimant was successful only on the ninth trip.

During the operation, the claimant stated that he had become increasingly frightened, fearing serious injury or even death if the suspects caught him. With every approach to the car, the claimant considered that he had subjected himself to an increased risk of being caught and attacked by the suspects if they left the public house and saw him close to the car.

The claimant already suffered from hypertension rendering him vulnerable to stressful conditions, although the defendant knew nothing of his condition. The operation aggravated his hypertension causing extreme stress. As a result, he developed a clinical psy­chiatric state, leading to an acute rise in blood pressure that caused a stroke.

There was an established history of prob­lems with the batteries provided for the tag­ging devices with approximately 30% of new batteries failing. No evidence was adduced by the defendant, the Chief Constable, to suggest that anything had been done to rectify this problem. Accordingly, at first instance, HHJ Tetlow found that the defendant was negligent in failing to operate a safe system of work and in breach of statutory duty in failing to provide equipment that was in an efficient state.

However, the claim in negligence was dis­missed on the basis that the claimant had suffered no physical injury of the sort that he feared, namely an actual attack by the suspected criminals. Further, the psychiatric injury giving rise to his stroke was not rea­sonably foreseeable because of the defendant’s non-culpable ignorance of his vulnerability to stress and, therefore, he had suffered no rea­sonably foreseeable injury.

Effectively, HHJ Tetlow classed Mr Donachie as a secondary victim for the purposes of determining whether liability for psychiatric injury existed. On appeal, the claimant argued that HHJ Tetlow had overlooked the fact that he had been placed in a position where there was a reasonably foreseeable risk of physical injury and he was therefore a primary victim.

Counsel for the claimant, argued that HHJ Tetlow had wrongly failed to consider whether he was a primary or secondary victim having accepted that the claimant had suffered a clini­cal psychiatric condition leading to a physical injury in the form of a stroke as a result of the defendant’s negligence. Had the judge done so, he would have been bound by Page v Smith to conclude that he was a primary victim since the defendant should have foreseen the possibility of some physical injury. Counsel criticised the judge’s reliance on the notion that the claimant had to prove not only that he had been exposed to a risk of physical injury from being assaulted by the suspected criminals but also that an ‘event’ in the form of such an assault had ac­tually taken place. It was argued on behalf of the claimant that the fact that the anticipated assault did not actually take place is immaterial since physical injury was reasonably foreseeable in the circumstances, rendering the claimant a primary victim. In short, hindsight is no de­fence where the victim is a primary victim.

Counsel for the defendant accepted that the defendant owed a duty of protection whether from physical or psychiatric injury but argued that this duty only becomes actionable in the event of criminals actually causing either or both forms of injury. However, there was no such event here, “simply the claimed effect of stress upon Mr Donachie’s body” and, accordingly there was no foreseeable risk of injury of any sort. Counsel submitted that the job of a policeman is, by its very nature, stressful but the defendant could reasonably expect a certain fortitude from the claimant, an experienced officer, in the face of physical dangers to which his job exposed him. It was argued that it was only if there could be said to have been reasonable foreseeability of physical injury from the defendant’s breach of duty in relation to the defective batteries, that the Page v Smith rule would come into play. Counsel stated that there was a risk of physical injury to any officers engaged on such tagging du­ties, even if the batteries were not defective but that this was a risk that went with the job. The question was whether it could be said that there was a reasonable foreseeability that the risk was materially increased by the provision of defective batteries in the sense of exposing the claimant to imminent physical harm, as distinct from ‘manageable’ or ‘controllable risk’ of such harm. If not, such foreseeability could only relate to psychiatric injury. The tagging operation was not, counsel submitted, one that involved a risk of such imminent physical danger as to constitute an ‘event’.

At first instance, HHJ Tetlow expressly found that it was reasonably foreseeable that, as a result of the malfunction of the batteries, the existing small risk in the operation would become considerably greater and the consequent stress to the claimant severe or extreme. HHJ Tetlow stated that ““the increase in the risk of physical injury due to faulty batteries prolong­ing the time necessarily to be spent under the target vehicle was foreseeable. Each journey to the car increased the risk of discovery and assault”. Auld LJ saw no basis to alter this find­ing and rejected the argument that the claimant had to prove a reasonable foreseeability of im­minent physical harm as opposed to exposure to manageable or controlled risk of harm.

Auld LJ determined that the claimant was a primary victim, there was a reasonable foreseeability of physical injury and, consequently, it was not necessary to prove involvement in an event in the form of an assault or otherwise. He went on to state that had it been necessary to look for an event sufficient to enable the claim­ant to rely as a primary victim on reasonable foreseeability of psychiatric, as distinct from physical injury, he would have been sympathetic with the submission on behalf of the claimant that the circumstances in which he had been placed as a police officer together with his fear, arising as a result of those circumstances, of physical injury are indistinguishable in prin­ciple from occurrence of such injury. Auld LJ concluded that “there is all the difference in the world between a person like Mr Donachie put in such a position... and someone who hap­pens to learn from afar and/or a significant time afterwards of an event in which he had no involvement, the discovery of which he claims to have caused him psychiatric injury.”

Next time we will look at a pure economic loss, another concept where the neighbour principle doesn’t work.

Don’t forget, no college next week. See you all on the 31st October.

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