Law of Tort Psychiatric Ilness A busy evening indeed as we discussed the area of nervous shock (psychiatric damage) in the tort of negligence. The usual rule in onoghue v !tevenson "#$%&' does not work here. It is almost compulsory to be asked a uestion in the eamination* and one would do well to learn the material. The development of the law on nervous shock makes an ecellent essay uestion. +,ervous 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 wellbeing of the victim. /hat this means is that we are looking for a sudden impact on the senses which has a longterm effect on a person0s mental health. /hat it isn0t is the normal sorrow and grief caused by the loss of a loved one* although it is accepted that there can be a 1pathological grief disorder0* as we shall see later. There is a distinction to be made* which stems from the case of Alcock (below)* between2 P3I4A35 victims 6 actually involved in the incident !789,A35 victims 6 witnesses to the horrific event in uestion 4uch of what follows is concerned with secondary victims. There are problems associated with allowing a claimant to succeed in nervous shock2 :L99;AT7! 6 the possibility of a maillsborough football stadium disasters are recent eamples. :3A??L7,T :3A??L7,T 8LAI4! the difficulty of identifying genuine psychiatric illness. I::737,TIATI,; @7T/77, ,934AL !9339/ A, ;3I7: A, ,739?! !>98= 6 see ernon v @osley (,o #) (#$$B) (below). /hilst 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 1nervous shock0 eists. The first success for nervous shock was ulieu v /hite (#$C#). 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. !>7 !?88777 @78A?!7 !>7 /A! I, :7A3 9: >73 9/, !A:7T5. In >ambrook v !tokes (#$&D)* 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 claimant0s wife had IL!T :7A3I,; :93 T>7 !A:7T5 9: A,9T>73* although for what she witnessed herself* rather than what she had been told. :ollowing these two cases & factors emerged in determining whether a person owed a duty not to cause nervous shock2 (#) the closeness of the claimant to the accident* E whether the defendant was aware of the presenceF and (&) a relationship between person suffering nervous shock and the person in danger. 3elationships other than close family ties were to be recognised.
In ooley v 8ammell Laird (#$D#) it was held that there could be a sufficiently close relationship between workmates. The important case of 8hadwick v @ritish Transport 8ommission (#$GB) 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 uestion of when a duty not to cause nervous shock would be owed was considered by the >ouse of Lords in 4cLoughlin v 90@rien (#$H%) 6 the first opportunity of the >ouse of Lords to consider nervous shock since the case of @ourhill v 5oung (#$%) (woman hearing an accident when alighting from a tram). /e discussed this case earlier. In the present case the claimant0s husband and her three children were involved in a road accident caused by the defendant0s negligence. !he was told about the accident an hour or so after it happened and she was taken to the hospital. !he saw her daughter covered with dirt and oil* with cuts to her face. >er husband was in a similar condition. >er son was badly iner other daughter had died almost immediately. It was held that the claimant could recover damages for her nervous shock. The >ouse 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 /ilberforce stated that foreseeability alone was not sufficient* whilst Lords @ridge and !carman reillsborough disaster. 9n #Dth April #$H$ a semifinal of the :A 8up was due to be played between Liverpool E ,ottingham :orest at >illsborough* !heffield. There was a sellout crowd. The T were there to record highlights. The match was halted after G 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. $D people died* CC more needed hospital treatment. Thousands witnessed the scene from other parts of the ground* millions saw it on T or heard it on radio. 4any who were watching or listening had loved ones at the match. The broadcast images of the >illsborough disaster did not depict the suffering or d ying of recognisable individuals !iteen test cases were brought to determine whether the 8hief 8onstable owed them a duty of care* E were representative of a further #DC further claims. !ome claimants were at the ground* whilst others were watching T. All claimed to have suffered nervous shock. Jones v /right (#$$#) (#st instance). The trial IP 6 relatives other than spouses would be able to claim* they would foreseeably suffer nervous shock. These relatives would include brothers E sisters E grandparents bringing up a child from a baby. ;79;3AP>I8AL 6 all those inside or immediately outside could claim* as could those who saw it on T* providing that the relationship issue was settled. @eing told* or hearing of it on radio was not enough. /e are now left with2 :ailed claimants in the >igh 8ourt appealing to the 8ourt of Appeal (best friends* perhapsK). A cross appeal by the defendant (the 8hief 8onstable)* alleging that the Trial Judge had gone too far (grandfathers* T viewersK). Alcock v 8hief 8onstable !outh 5orkshire (#$$#) (8ourt 9f Appeal). The court severely criticised the decision of the trial
The T viewers claimants must fail as a T broadcast* whilst reasonably foreseeable that it would be broadcast* the intervention of a third party between the accident E a claimant meant that the T was not euivalent to the sight or sound of the accident. 9nly the relationships that would have succeeded prior to 4cLoughlin should succeed* unless the defendant could prove that the claimant didn0t have a +relationship of love E care-* e.g. husband E wife who are separated E hate each other* or the claimant0s relationship is euivalent to a parent or spouse* e.g. a grandparent bringing up a child. Leave to appeal to the >ouse of Lords was granted to ten of the original claimants* E were unanimously dismissed in Alcock v 8hief 8onstable !outh 5orkshire (#$$#) (>ouse of Lords). They held that the reuirements for a duty of care in nervous shock cases are2 >arm was reasonably foreseeable. Proimity of relationship between the claimant and the victim. In spouse E parentchild relationships there is a rebuttable presumption* but it is open to other relationships to prove the eistence of caring E loving relationships* e.g. ;randfather again* siblings* engaged couples. Proimity to the accident or its immediate aftermath must be sufficiently close in both terms of time E space. !ight or sound of the accident will continue to sufficeF the law will not compensate shock brought about b y a third party communicating it. Lord Jauncey stated that as a matter of public policy the situation of rescuers would not be affected (see 8hadwick above). In @oylan v =eegan "&CC#' (unreported) and eightyearold girl had been seriously ine heard her screams and the sounds of the arrival of the ambulance. The girl died two days later* in her father0s arms. >e brought a claim for nervous shock. >e 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 >illsborough concerned claims by police officers* for psychiatric damage is /hite v 8hief 8onstable of !outh 5orkshire Police (#$$$). Again the case concerns members of the rescue services. At >illsborough. It was held that2 (#) employees can only recover damages in line with Alcock. (&) 3escuers can recover if it is shown that there was actual or apprehended danger to them. The position of a mere bystander watching a tragic scene unfold before him was considered in 4c:arlane v 77 8aledonia Ltd (#$$)* often simply known as the 1Piper Alpha 9il 3ig disaster0. 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 DDC metres from the rig* when a series of massive eplosions occurred on the rig. :or # hours he witnessed the destruction of the rig before being rescued. #G men were killed in the disaster. >e claimed damages for psychiatric illness suffered as a result of what he saw. The 8ourt of Appeal applied Alcock and held that such a claimant could not recover unless the elements of proimity 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. ,either 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. >owever* if it is so severe as to constitute a pathological grief disorder* a claimant may be able to recover. In ernon v @osley (,o #) (#$$B) the claimant was present whilst attempts were made to salvage a car* containing the bodies of his daughters* from a river. 9n these facts the court found it impossible to distinguish between the effect on the claimant of seeing the scene of the accident* knowing that his young children were almost certainly dead* and the natural effects of grief and bereavement which followed when their death was confirmed. The abnormal grief reaction which he went on to suffer should not be discounted by the +normal- grief which was to be epected in such circumstances.
The distinction between primary and secondary victims was made b y Lord 9liver in Alcock2 P3I4A35 6 directly involved in the incident as a participant !econdary 6 usually a witness to the incident. The following cases considered the distinction between victims andMor whether they were present at the immediate aftermath2 ;reatores v ;reatore "&CCC'. A fireman who came to rescue his son was not allowed to bring an action against him on the grounds of public policy* as it would lead to family breakdowns. Atkinson v !eghal "&CC%'. A woman was searching for her siteenyearold daughter and found her at the site of a road accident. !he had been killed. !he went with her daughter0s body to the mortuary* ! Trust "&CC%'. The claimant suffered pathological grief reaction following the death of her son. >e had been negligently dealt with at the hospital* and she remained with him throughout the last thirtysi hours of his life* when the decision was made to turn off a life support machine. The 8ourt of Appeal said that this was one continuing horrific event* and so she could recover damages. The case of onachie v 8.8. ;4P "&CC' came before the 8ourt of Appeal to decide whether the claimant* on the facts of the case* was a primary or a secondary victim. 9n the evening of &nd ,ovember #$$B* the claimant was reuired* in the course of his duty as a police officer seconded to the ,orth /est 3egional 8rime !uad* to attach a tagging device to the underside of a car that the 8rime !uad 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 1tracking0 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. ?nfortunately* 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. /hen 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. >aving eamined the device and tried to fi it* the claimant had to return to the car and reattach 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. uring the operation* the claimant stated that he had become increasingly frightened* fearing serious in
8onstable* to suggest that anything had been done to rectify this problem. Accordingly* at first instance* >>J 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 euipment that was in an efficient state. >owever* the claim in negligence was dismissed on the basis that the claimant had suffered no physical in>J Tetlow classed 4r onachie as a secondary victim for the purposes of determining whether liability for psychiatric in>J Tetlow had overlooked the fact that he had been placed in a position where there was a reasonably foreseeable risk of physical in>J 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 inad the owever* there was no such event here* +simply the claimed effect of stress upon 4r onachie0s body- and* accordingly there was no foreseeable risk of in>J Tetlow epressly found that it was reasonably foreseeable that* as a result of the malfunction of the batteries* the eisting small risk in the operation would become considerably greater and the conseuent stress to the claimant severe or etreme. >>J Tetlow stated that ++the increase in the risk of physical ine 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 in
those circumstances* of physical inowever* it is possible to identify several policy considerations which have been influential in the thinking of the
:L99;AT7!. Allowing a new class of defendant to succeed could lead to an overwhelming number of cases. 8onsider the >illsborough disaster and the =ings 8ross fire. The potential for causing harm to many people in one single tortious event is high. ALL98ATI9, 9: 3I!= A, L9!!. !ome losses can be covered easily by insurance cover (e.g. contents insurance) and insurance is compulsory in some riskcreating situations (e.g. third party motor insurance). Lots of newspapers take insurance against actions for defamation. There are eamples that the court may well decide that the loss should lie where it could most easily have been insured against and may refuse to recognise a duty in tort to guard against that loss arising. !omething of this argument can be seen in !partan !teel Alloys where the claimants were denied recovery for their pure economic loss because business interruption insurance would have been available to them. /e will cover the case later when considering a pure economic loss. I44?,ITI7!. !ome enouse of Lords). @y use of the #$GG Practice !tatement the >ouse of Lords changed their minds in >all v !imons "&CCC'* and barristers are now fully liable for their negligence. !9LI8IT93!2 enemmens v /ilson @rowne (a :irm) #$$% where policy barred a claim where there was someone else in a position to regularise matters. 839/, P39!78?TI9, !73I872 in 7lguOouliaf v 4P8 (#$$D) the 8rown Prosecution !ervice had discontinued proceedings after a lengthy spell of custody. It was held that there is no general duty of care owed by the 8rown Prosecution !ervice to a defendant* its central function would be inhibited by an imposition of duty. 7473;7,85 !73I87!2 P9LI87. The police enill v 8hief 8onstable 9f /est 5orkshire (#$HH) where the mother of the last victim of the so called +5orkshire 3ipper- argued that the police had failed to use reasonable care in apprehending the murderer of her daughter. Although it was foreseeable that the murderer would kill again if not caught* the >ouse of Lords would not recognise a duty of care to such potential victims. To do so would restrict the eercise of police discretion in their investigations and would put them in a defensive frame of mind. Lord Templeman pointed out that if a duty was recognised +every citiOen will be able to investigate the performance of every policeman. If the policeman concentrates on one crime* he may be accused of neglecting others. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings successfully or unsuccessfully* would distract the policeman from his duties.ifferent considerations were apparent in !winney v 8hief 8onstable 9f ,orthumbria Police (#$$G) in which it was held by the 8ourt of Appeal that a duty did arise to take care for the safety of an informant who had provided the police with valuable information about a violent criminal. In this situation the public interest was best served by encouraging those with information to come forward. The >ouse of Lords was to later reverse this decision. A rare eample of success can be found in 8ostello v 8hief 8onstable 9f ,orthumbria Police (#$$$).
:I37 !73I87. ;enerally they enowever* in 8apital And 8ounties plc v >ampshire 8.8. (#$$B) it was held that where the fire service take total control of a situation they will owe a duty of care. 89A!T;?A3. The above decision was followed in a case involving the coast guard2 9ll v !ecretary 9f !tate :or Transport (#$$B). A4@?LA,87. The ambulance service are seen in a different light to the other emergency services. In =ent v ;riffiths (&) "&CCC' it was held that where the service accept an emergency call they must respond within a reasonable time* unless there were a conflict of priorities. !TAT?T935 A?T>93IT5. /e will look at this as a separate tort later. !uffice to say for now that it is very difficult* if nigh on impossible* to sue a body for breaching a statutory duty. !ee* for eample2 ;oodes v 7ast !usse 8.8. "&CCC'. posted by John 3obotham Q 2DH A4 C comments /ednesday* 9ctober C* &CCG Tuesday % 9ctober &CCG /e continued our discussion on defences to battery with that of selfdefence. This is available provided that reasonable force is used in defence of your person* your property* or another person. /hat is reasonable will depend on the circumstances of the case and the force used must be proportionate to the force offered2 3evill v ,ewberry "#$$H'2 4artin "&CCC'. /e then turned to the third trespass to the person* i.e. false imprisonment. >ere the defendant intentionally causes the claimants freedom of movement to be totally restrained without lawful erring v @oyle (#H%) with 4eering v ;raham /hite Aviation (#$#$). In 4urray v 4inistry 9f efence (#$HH) the >ouse of Lords upheld the view in 4eering* stating that knowledge was relevant to damages. This was an obiter statement. /here there is no contractual or other legal duty to release the claimant* a failure to release a person is not false imprisonment. In >erd v /eardale !teel 8o. (#$#D) miners ceased work and demanded to be taken to the surface. A refusal to do so by the employers was not false imprisonment as they were under no duty to return the men to the surface until the end of their shift. /here a person enters the defendants0 premises sub
imprisonment. It was clearly stated on a notice board at the entrance that a penny was payable on eit from the wharf (usually after a return ouse of Lords has stated that all the evidence should be weighed* including the source of the information* and the inferences drawn should be those that a reasonable man would make2 90>ara v 8hief 8onstable of the 3?8 (#$$B) # ALL 73 #&$. The arrested person must be handed over to a police officer within a reasonable time2 Lewis v Times (#$D&)* GC minutes was okay. There arassment Act #$$B means it probably never will. The Act came into force in June #$$B. !ection % provides for a civil remedy of damages to compensate for aniety and financial loss in those circumstances where a breach of s# has occurred or is apprehended. !ection # itself creates an (arrestable) offence of harassment* although the concept of +harassment- is not fully defined. The offence consists of a course of conduct (including speech) on at least two occasions. The harasser is
>ill "&CC#'2 two incidents si months apart* with reconciliation in between* was not a course of conduct. /e then turned to the most important tort of all* the tort of negligence. /e shall spend several weeks on this. In order to succeed in a negligence action* the claimant must prove that2 the defendant owed him a duty of careF the defendant was in breach of that dutyF the claimant suffered damage* which was not too remoteF the absence of a defence* e.g. contributory negligence or volenti non fit inenderson v 4erit !yndicates Ltd (#$$) in the >ouse of Lords. >e could find no +sound basis for a rule which automatically restricts the claimant to either a tortious or a contractual remedy.- >e thought the result 1untidy0 but thought that the claimant should be able to take advantage of the remedy which is most advantageous to him. /hilst this isn0t universally approved of* it is the accepted view. There are* of course* tests for the eistence of a duty of care* and our starting point is the evergreen onohue v !tevenson (#$%&). The appellant brought an action against the manufacturer of ginger beer bought for her by a friend at 4ichelle0s cafR in Paisley. !he drank some of the ginger beer* and when the rest was poured into her glass she saw the remains of a decomposed snail floating from the opaue bottle into her glass. !he claimed to have suffered gastroenteritis and nervous shock as a result of drinking some of the ginger beer and the nauseating sight of the foreign body in her drink. The case proceeded to the >ouse of Lords to decide on the preliminary point as to whether an action eisted in tort irrespective of the fact that that there was no contract between her and the manufacturer. The >ouse of Lords (by a bare mae said2 +5ou must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to in
A new category of duty was createdF that of manufacturers of dangerous products to their ultimate consumers the 1narrow rule0. ,ote that the defect must cause damage* poor uality is a matter of contract. Lord Atkins stated his neighbour test for determining whether a duty of care eisted the 1wide rule0. This test based on reasonable foreseeability of damage did not find immediate acceptance with the ome 9ffice v orset 5acht 8o. Ltd (#$BC)* the >ouse of Lords epressly approved Lord Atkins0 statement. Lord 3eid said that although the neighbour principle would reuire ualification to meet new circumstances (ouse of Lords in Ann0s v 4erton London @orough 8ouncil (#$BH) A8 B&H (now epressly overruled* although still the law in ,ew ealand)). Lord /ilberforce stated that the uestion has to be approached in two stages2 whether* as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proimity or neighbourhood such that* in the reasonable contemplation of the former* carelessness on his part may be likely to cause damage to the latter* in which case a prima facie duty arises. (proimity) if the first uestion is answered affirmatively* it is necessary to consider whether there are any considerations which ought to negative* or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise. (considerations to negate) /hat it means is2 does the neighbour principle applyK if yes* is there any reason for not allowing the claimK This twostage test led to a considerable epansion in the areas covered by negligence* in particular took the tort into the area of recovery of pure economic loss caused by negligent conduct which had previously been thought to be the province of contract the law. 8riticism was to follow* and eventually the case was overruled by the >ouse of Lords in 4urphy v @rentwood 8 (#$$C)* which we shall consider later. In >edley @yrne E 8o. Ltd v >eller E Partners Ltd (#$G)* the >ouse of Lords epanded negligence to include liability for negligent misstatement leading to economic loss. The original neighbour test was re
Uuestions on Psychiatric Ilness Uuestion # In order to prove that 4att was negligent to ,ick and Pamee* it must be shown that he owed them a duty of care (onoghue !tevenson). In this case* a special duty situation eists* as ,ick and Pamee suffered psychiatric harm. /hen claiming for psychiatric harm* all claimants must show a recognised medical condition with long term effects (3eilly 4erseyside 3>A) which is due in at least part to the incident (ernon @osley). In this scenario it states that both ,ick and Pamee suffered psychological problems. It is likely that these psychological problems would ualify as a recognised medical condition. It also states that these occurred +on account of what they had seen-* suggesting that the issues were due in at least part to the incident. It does not state that these psychological problems were long term* so this element remains in doubt. It must then be decided whether the claimants are primary or secondary victims . A primary victim is someone who is directly involved. This can include someone who is physically inere* ,ick is clearly a primary victim. >e in danger of physical inill 8hief 8onstable of !outh 5orks). Pamee would not however* be a primary victim. !he was not in
Uuestion & :ollowing months of speculation the legendary indie guitar band 6 @linking Idiot 6 are about to embark on a reunion tour of the ?=. They are performing a warmup gig at a small intimate venue when a spotlight falls onto the stage causing a massive eplosion killing the band members2 4adeleine* Amish and ave. ?nfortunately* the lighting rig (onto which the spotlight was fitted) had been negligently maintained by 3ack E >orse Lighting. The sight is particularly gruesome. 5ou are asked to advise various parties. The best way to answer this uestion is to work through each of the potential claimants one by one. ?se headings. The key issue here is whether the defendants 6 3ack E >orse Lighting 6 owe a duty of care to those who have suffered psychiatrically inannah >annah* Amish0s wife* is watching the gig from the IP area of the venue. !he is physically unharmed* but later suffers nightmares and depression. This is particularly traumatic for her as she had previously suffered from depression* but had sought help and recovered. In order to recover* >annah needs to have suffered from a recognised psychiatric illness. This reuirement is easily satisfied here2 you are told >annah is suffering from depression. >owever* you are also told that this is a recurrence of a preeisting condition 6 that >annah had previously suffered from depression. It is important then that you discuss the Vegg shell skullV principle (see parts D.D and $.%.#.#). 9n this basis* >annah can only recover if someone of Vordinary phlegm or fortitudeV would have suffered psychiatric inorse Lighting will be liable in full (assuming >annah fulfils the criteria of a primary andMor secondary victim)* even though a particular vulnerability or susceptibility means that the claimant suffers much greater psychiatric harm than might have been anticipated (@rice v @rown "#$H'). 8ould >annah be a primary victimK /ell* that would depend on how close the IP area of the venue was to the stage. The closer is it to the stage the more likely it is to fall within the VOone of dangerV (Page v !mith "#$$G'). The facts are not clear here. o not make up new facts 6 but do acknowledge that the facts are ambiguous here. !tate the legal issue 6 that is* that in order to be a primary victim* >annah will need to be in the Oone of danger* that is at risk of physical inillsborough !tadium isaster (/hite v 8hief 8onstable of !outh 5orkshire Police "#$$H') while those who stayed on the pitch fell outside)* assessing whether there is anything here which could put >annah in the Oone 6 for eample the fact that it is a Vsmall* intimate venueV (although note that the fact that she is Vphysically unharmedV points to the opposite conclusion). A strong answer will then go on to discuss whether >annah could* in the alternative* be classed as a secondary victim. In order to do so* she needs to satisfy the Alcock control mechanisms as stated by Lord 9liver in Alcock v 8hief 8onstable of !outh 5orkshire Police. the class of persons whose claim should be recogniOedF the proimity of the claimant to the accidentF the means by which the shock is caused. 9n the facts* >annah is able to establish close ties of love and affection to one of the primary victims (#). !he is Amish0s wife 6 so these are assumed (although* of course* may be rebutted by evidence to
the contrary). !he is also able to establish the necessary proimity to the accident and immediacy of perception or VshockV (& E %) (she is at the gig). !he is* therefore* a secondary victim. Pete Pete* 4adeleineVs brother* is listening to the live radio broadcast of the gig from his hotel room in Paris. >e hears the eplosion and thinks he can hear 4adeleine screaming. >e rushes to the airport* managing to catch a flight that is e develops posttraumatic shock disorder. 5ou are told that Pete has developed posttraumatic shock disorder. >e is* therefore* suffering from a recognised psychiatric disorder. Is Pete a primary victimK 9f course not. As Pete is in Paris at the time of the accident 6 hundreds of miles from the Oone of danger 6 he clearly cannot be a primary victim. As the answer here is straightforward you should not spend long discussing it 6 identify the relevant law* discuss it and then move on. 7tended discussions of law which is plainly irrelevant or straightforward is not only a waste of time it simply draws attention to the fact that you cannot distinguish the relevant from the irrelevant. Just as being dogmatic in asserting the law is W when it is arguably 5 is wrong* it is eually so to assert the position is debatable when in fact the law is clear. The key issue here is whether Pete meets the criteria in order to be classed as a secondary victim. If you have already outlined the criteria in your discussion of >annahVs claim 6 refer back to this. There is no need to restate them. As 4adeleineVs brother* Pete does not have the benefit of the presumption of a close tie of love and affection but may be able to prove them (#). A common error made by students is to assume that siblings cannot claim in negligence for psychiatric in
eplosion on the radio would fall into this category* although the smaller number of people present may make it more likely that Pete could have heard his sister screaming. Lucy Lucy has attended every @linking Idiot gig in the ?= and has travelled to a number of their overseas concerts. !he is a founder member of their fan club and regularly contributes to their fan magaOine. !he always tries to stand as close as possible to the stage. 4iraculously she was not hurt by the eplosion but has since been overcome with grief. LucyVs claim fails at the first hurdle. !he is not suffering from a recognised psychiatric illness. 4ere grief is insufficient to found a claim (>inO v @erry "#$BC'). >owever* it is worth noting 6 in passing 6 that she otherwise satisfies the reuirements to be a primary victim. 5ou are told that she Vtries to stand as close as possible to the stageV and so can assume that she was close enough to be at risk of physical ine is a trainee ambulance man and this was his first mae rushes to the stage but uickly sees that there is little he can do. >e spends the net two hours comforting distraught fans. >e later suffers from recurring nightmares and panic attacks. Although Tim is a VrescuerV* following the decision of the >ouse of Lords in /hite v 8hief 8onstable of !outh 5orkshire Police "#$$H'* this makes no difference to the detail his claim. Tim has to meet the primary or secondary victim reuirements in order for his claim to be successful. Is he a primary victimK Assuming that his Vnightmares and panic attacksV are symptoms of a recognised psychiatric illness 6 he then needs to establish that he was in the VOone of dangerV. 9n the facts as given* he is never in physical danger. ,or is he a secondary victim. The discussion of both these issues can be relatively brief here. 5ou will have discussed them in full* above* and so all you need to show is that you are aware of the application of the legal issues in relation TimVs claim. >owever* the reasoning in /hite could be distinguished on the basis that it is applicable only to VprofessionalV rescuers case (part D.B.#* note #). If so* 8hadwick v @ritish 3ailways @oard "#$GB' might apply. This is a contentious (and weak) argument 6 reouse of Lords in /hite 6 and must be acknowledged as such. @e eplicit about the nature of any uncertainty* and by all means offer a tentative view on how a future court might resolve the case. The key issue is whether Tim is a professional (although heVs an ambulance man itVs his first time)* if not his claim could be successful according to the principles in 8hadwick. !tuart !tuart* one of the roadies* is overcome with feelings of guilt and depression. It was his
:irst* !tuart would need to show that his guilt and depression amount to a recognised psychiatric illness (>inO v @erry "#$BC'). An application of the reasoning in ooley v 8ammell Laird E 8o Ltd "#$D#' suggests that !tuart would be able to recover. The claimant in ooleywas able to recover on the basis that he feared his actions had caused inowever* the law here is not as straightforward as it might seem. It is important that where legal doubt is identified* you recognise it and look at the relevant case law or statute in detail. >owever* this detail is selective2 only include facts of a case* legal principles* unter v @ritish 8oal 8orporation "#$$$' the 8ourt of Appeal distinguished ooley* making it clear that even in these Vinadvertent agencyV cases the reuirement of proimity in time and space still applies. This additional factor (if applicable 6 the later >ouse of LordsV decision in / v 7sse 8ounty 8ouncil "&CCC' suggests that >unter may have been wrongly decided) does not necessarily defeat !tuartVs claim. A roadie may be epected to be near the stage during a gig. Again* you have not been given enough facts to come to a definitive conclusion here 6 so simply identify the issue* suggest which way you think the court is likely to go and what factors it will take into account and move on. @reach* causation* and defences :ollowing months of speculation the legendary indie guitar band 6 @linking Idiot 6 are about to embark on a reunion tour of the ?=. They are performing a warmup gig at a small intimate venue when a spotlight falls onto the stage causing a massive eplosion killing the band members2 4adeleine* Amish and ave. ?nfortunately* the lighting rig (onto which the spotlight was fitted) had been negligently maintained by 3ack E >orse Lighting. The sight is particularly gruesome. It is essential that you also address the other elements to a claim in the tort of negligence in your answer. In this uestion* these can all be dealt with easily and uickly at the end of your answer as the issues are the same in relation to each potential claimant. 5ou are told that the lighting rig has been negligently maintained by 3ack E >orse Lighting. In so doing* they have clearly fallen below the standard of care epected of them (8hapter H) and so will be in breach of any duty of care owed. !imilarly* issues of causation and defences are straightforward. It seems reasonable to assume that the spotlight fell onto the stage (causing the eplosion) as a result of the lighting rig being negligently maintained (cause in fact). And the eplosion and resulting inorse Lighting (8hapter #C). 8onclusion :inally* avoid lengthy conclusions2 a crisp summary of the outcome of your analysis is sufficient.
