Nervous Shock

What is

Nervous Shock?

Claim for psychiatric injury resulting from the shock of a traumatic incident

Originally not allowed because:

• Lack of medical knowledge about psychiatric illness
• Fear people might fake symptoms
• Fear of opening floodgates (Victoria Railway)

Original Restrictions:

• Psychiatric injury must be a recognised psychiatric condition
• Person claiming must fall into category accepted by courts as being entitled to claim

AO2 - decision based on judicial opinion - unfair on c's, judges not medically qualified.

What is a

Recognised Condition?

Has been debate over what is a recognised psychiatric condition

Reilly - insomnia and claustrophobia not recognised conditions

Modern day conditions like depression and PTSD recognised but courts reluctant to accept claims for temporary upset e.g. grief, distress or fright, although there has been some variation

Tredget v Bexley HA - unusually, parents of child born with serious injuries due to medical negligence and then dying succeeded in claim despite argument their condition was no more than profound grief

Vernon v Bosley - father witnessed children being drowned in car neglgiently driven by nanny. Recovered damages for nervous shock because it was partly related to trauma of witnessing events as well as grief

Who Can Claim?

Primary Victims

Dulieu v White - successful claim of woman who suffered nervous shock after horse and can crashed thorugh window next to where she was stood as she was put in fear for own safety. (first proper recognition)

Page v Smith - Page involved in car crash caused by D's negligence and although suffered no physical injury, did suffer reccurrence of chronic fatigue syndrome. HL held D liable for psychiatric injury.

AO2 - courts willing to accept thin skill rule for psychiatric injury as well as physical injury

Simmonds v British Steel - C injured through employer's negligence then suffered worsening of psoriasis and a depressive illness which resulted from ager at employer's lack of apology rather than the injury. Court still imposed liability as C was a primary victim.

AO2 - courts more willing to accept claims from primary victims

Who Can Claim?

Rescuers as Primary Victims

Sometimes rescuers can be classed a primary victims...

Chadwick v British Railways Board - When two trains crashed in a tunnel C was asked to crawl in due to his size to administer injections to trapped passengers. He was able to successfully claim for anxiety neurosis suffered as a result because he was put at risk himself by crawling into the wreckage.

Hale v London Underground - A fireman successfully claimed for PTSD following the King's Cross fire.

Who Can Claim?

Secondary Victims

Law was extended to include claim for nervous shock as a result as witnessing a traumatic event involving close family...

Hambrook v Stokes - woman allowed to claim when she feared for safety of her children after witnessing lorry crash near to where she left her children. Court held it was unfair to not compensate a mother who feared for the safety of her children.

This was then extended further to include events involving close but not related people...

Dooley - crane driver allowed to claim when he saw a load fall and thought colleagues underneath were injured

Who Can Claim?

Secondary Victims

 BUT courts did place limit of who could claim to people within area of impact...

Bourhill v Young - woman failed in claim when she gave birth to stillborn after hearing impact of motorcycle and later seeing blood on the road as she was outside area of forseeable shock

AO2 - Think skull rule doesn't apply to secondary victims - compared to person of reasonable phlegm and fortitude i.e. not overly sensitve to shock

Law was also extended to allow claims from people not present at the scene but at the immediate aftermath...

McLoughlin v O'Brian - Woman arrived at hopsital 1 hour after husband & children involved in car crash and hadn't been cleaned up yet. 1 child had died. HL held relationship sufficiently close and woman present at immediate aftermath so she could claim.

AO2 - sets guidelines for what is immediate aftermath

Who Can Claim?

Secondary Victims

The law was at one point widened to include psychiatric injury as a result of witnessing damage to property...

Attia v British Gas - woman who witnessed her house burning down successfully claimed as she was withing the area of impact

AO2 - very broad and wide decision. policy? British Gas able to withstand loss as had insurance. unlikely to be followed now

Claims for shock suffered at scene of disasters will not be successful for people considered mere bystanders.

McFarlane - Person helping receive casualties from oil rig failed in claim as he was classed as a mere bystander rather than a rescuer

AO2 - harsh decision as more of a connection than mere bystander. policy decision - floodgates?

Who Can Claim?

Secondary Victims & The Alcock Criteria

Law on nervous shock reviewed following Hillsborough disaster (Alcock v Chief Constable South Yorkshire) to restrict the number of claims

3 criteria set out which must be satisfied for a successful claim:

• Proximity in time and space - could be a claim in respect of the incident or the immediate aftermath that was witnessed or experienced directly
• Proximity in relationship - successful claim depends on a close tie of love and affection with the victim, or presence as a rescuer
• The cause of nervous shock - damage must be suffered as a result of witnessing/hearing the horrifying event or the immediate aftermath
• 

AO2 - This restricted the law to a large extent

Who Can Claim?

Post-Alcock

Taylor v Somerset - C's husband suffered fatal heart attack. She was only told he had been taken to hospital but when she arrived she was told he was dead, which she only believed when she identified his body. She claimed for psychiatric injury butfailed as courts held the purpose of her visit was to identify the body and so she knew what she was going to see.

White v Chief Constable of South Yorkshire - Police officers claiming to suffer PTSD following Hillsborough disaster weren't allowed to claim as they did not put themselves at risk and public policy prevented them from recovering when relatives of the deceased could not.

AO2 - clarified law on rescuers

Greatorex v Greatorex - Fire officer attended scene of accident caused by negligence of his son and was required to tend to sons injuries & claimed nervous shock. Court didn't accept his claim as would cause family conflict.

AO2 - harsh, doesn't compensate victim - may have been allowed if not his son