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Tort - Nervous Shock II
In Attia v British Gas Corporation (1988) the plaintiff had employed the defendants to install central heating in her home and stepped out while the work was being carried out. When she returned she realized that there was smoke coming from her loft and she instantly called the fire brigade but by the time they arrived the flames had spread and most of the house had been destroyed.
The plaintiff sued not only for damage to the house but also for the shock that she had suffered seeing her house burn down. The defendants accepted responsibility for starting the fire and agreed to compensate the plaintiff for the loss of her house but argued that the plaintiff should not be allowed to bring a claim for psychiatric illness because of public policy reasons.
The court held otherwise and decided that the plaintiff was entitled to claim for psychiatric illness. It was up to the courts to decide, based on the facts, if such a claim would be successful or otherwise.
In Alcock v Chief Constable of South Yorkshire (1992) during the 1989 FA cup final between Liverpool and Nottingham Forest the police who were in charge of directing the crowd had negligently directed an excessive number of spectators to one end of the stadium despite there being plenty of room in other parts of the stadium.
The crowd amassed at the Liverpool end of the stadium just behind the goalpost. 6 minutes into the match and the first signs of trouble started to appear. Crowds climbed over the fence and the police who still weren’t certain as to exactly what was going on thought it was a pitch invasion and didn’t see the bigger danger.
The first ambulance arrived at 16 minutes past 3 but by that time it was already too late and 96 fans had lost their lives. There were in total 16 claims brought against the defendant including claims from fans who’d watched the match on television, fans who were in other parts of the stadium and family members and the courts were faced with the difficult task of deciding which claims to allow and which claims to refuse.
They had to draw a line and had to distinguish between the claims. To allow claims for those who suffered from shock while watching the incident on television for example would inevitably open the floodgates.
The courts drew a distinction between the claimants. The first category of claimants who would be allowed to claim would the primary victim(s). The primary victim is defined as someone who fears for his or her own safety and as a result suffers from nervous shock or succumbs to a psychiatric illness distinct and separate from a physical injury.
The second category of claimants who would be allowed to claim for nervous shock are claimants who have witnessed the incident and share mutual ties of love and affection with the victim for example parents, children, spouses etc. This reaffirms the decision in McLoughlin v O'Brian (1983).
In addition to that for a secondary claimant to successfully claim damages the claimant must have perceived the incident or its aftermath through his or her own senses or the claimant must have witnessed the incident or its aftermath personally.
This rules out anyone who has suffered from nervous shock or succumbs to a psychiatric illness after watching the incident on television. That does not by any means suggest that these viewers might not have suffered from nervous shock or a psychiatric illness from witnessing the incident on television, it just means that they can’t claim for their illness.
The secondary claimant must also be within the of scope of proximity and foreseeability that was laid down in McLoughlin v O'Brian (1983) in that there was sufficient proximity between the claimant and the victim and that it is foreseeable that shock of some kind would be the natural consequence or the likely result of the claimant witnessing the incident or its aftermath.
In Page v Smith (1991) the plaintiff was a ME sufferer and was in the process of recovering when he was involved in a minor accident. The accident triggered the plaintiff’s illness and led to a resurgence as a result of which the plaintiff suffered a relapse. The plaintiff sued.
The court held that it was sufficient that some form of injury, physical or psychiatric would be the likely result of the accident and it does not matter if the plaintiff suffered from a pre-existing condition. The defendant has to take his or her victim as he or she finds them – the thin skill skull rule applies i.e. the defendant has to take his victim in the manner in which they are or together with all their physical inadequacies and pre-existing conditions.
© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward