NERVOUS SHOCK Dr Sonny Zulhuda OUTLINE Definition Nature

NERVOUS SHOCK Dr. Sonny Zulhuda

OUTLINE Definition & Nature of Nervous Shock Types of victims Legal Requirements Medically recognised illness? Foreseeability Relationship Physical proximity Means of witness

DEFINITION What is meant by Nervous Shock? The term is used to mean the occurrence of a psychiatric illness or injury caused to an individual person by events which have occurred due to the negligence of another person. For a claim of nervous shock to become apparent the illness which has been caused must be recognised as a genuine psychiatric disorder.

DEFINITION What kinds of illnesses will fall within this definition? The following types of psychiatric illnesses are likely to form the basis of a claim for nervous shock: Post-traumatic stress disorder Depressive disorders Adjustment disorders Anxiety disorders

DEFINITION What is not recognised as nervous shock? Mental distress Anguish Grief and sorrow Worry about children Financial strain Difficulties of adjusting to a new life

NATURE OF DAMAGE/INJURY The damage which is caused to the claimant must have been of an emotional or mental nature. In a case of nervous shock (or “psychiatric damage/illness”) the claimant has to demonstrate on the basis of medical evidence, that they have suffered a recognisable psychiatric condition. A claim in this area is likely to occur when an individual suffers a reaction due to witnessing an accident in which a loved one or relative is injured.

TWO TYPES OF VICTIMS… PRIMARY VICTIMS primary victim is a person directly involved in an accident as a participant and who was actually exposed to the risk of physical injury. SECONDARY secondary VICTIMS victim is those who simply witnessed (saw or heard) the accident.

REQUIREMENTS OF N. S. CLAIM 1. Medically recognised psychiatric illness 2. Foreseeability of psychiatric injury With regards to secondary victims, apart from the above, the following will be taken into account: – The relationship between P and the victim of accident – The physical proximity of the P to the scene – The means that N. S. was caused (P must see the event or its immediate aftermath with his own senses/unaided)

MEDICALLY RECOGNISED PSYCHIATRIC ILLNESS… On a painful event which is outside the range of normal human experience Preoccupation with the intrusive memories Persistent symptoms of increased arousal May take several forms, e. g. : sleep difficulty, irritability, outburst of anger, problems with memory or concentration, startle responses, hyper vigilance, overreaction to any reminder of the event. Alcock v. Chief Constable of South Yorkshire [1992]

MEDICALLY RECOGNISED PSYCHIATRIC ILLNESS…? Thiruvannamali a/l Alagirisami Pillai lwn Diners Club [2007] 1 AMR 700 Due to D’s mistake, P’s wife received a letter of condolence informing the Husband’s death. P sued D for shock, fear and mental anguish. Court acknowledged P’s discomfort and anger but denied the claim because ordinary emotions of anxiety are not recoverable.

FORESEEABILITY OF PSYCHIATRIC INJURY…? PAGE V SMITH [1996] C was driving his car when D turned right immediately into his path, resulting in an accident in which both cars were damaged but the occupants all escaped physical injury. C however had suffered from the onset of myalgic encephalomyelitis (ME) – a condition known as chronic fatigue syndrome, which manifested itself from time to time (the preexisting condition has been made chronic and permanent) The judge held that the shock of the accident reactivated this condition which was now in all probability permanent and that it was unlikely that the C would be able to return to full-time employment, and he awarded damages to C. D appealed. The Court of Appeal allowed the defendants appeal on the ground that psychiatric injury was not a foreseeable consequence of the accident.

PAGE V SMITH [1996] In the House of Lords: that in circumstances such as a road accident in which a D owes a duty of care not to cause personal injury … it mattered not whether the injury suffered as a result of the defendant's negligence was physical injury or psychiatric injury… liability would be established without the necessity to prove as an independent part of the cause of action that psychiatric injury, in the absence of physical injury, was foreseeable. The test in all cases was whether the defendant could reasonably foresee that his conduct would expose the claimant to the risk of personal injury, whether physical or psychiatric. C won the case

FORESEEABILITY OF PSYCHIATRIC INJURY…? Dulieu v White [1901] D’s negligence caused a van to break through a wall of a public house where P was standing behind the bar serving drinks. The court allowed P’s claim for psychiatric injury when she was put in fear of immediate physical injury to herself, which in turns resulted in a miscarriage. Bourhill v Young [1943] Appellant, when getting off a tram, heard the sound of a collision fifty feet away, Shortly after, she saw blood on the road. She then suffered N. S that resulted in a miscarriage. Ho. L: Resp did not owe her a duty of care. He could not reasonably have foreseen emotional injury to the App as a result of his negligent driving. Ho. L: Pedestrians on the street should have sufficient fortitude to endure such incidents as may occur from time to time.

FORESEEABILITY OF PSYCHIATRIC INJURY…? Hambrook v Stokes Bros [1925] The court allowed damages for a mother who was shocked after she saw with her own eyes a runaway lorry rolling down a steep street towards where her children had just passed by. The shock of witnessing this event produced a psychiatric reaction for which the defendant was held liable. No need for any direct impact or fear of immediate personal injury to the plaintiff provided that the reaction was induced by what she had witnessed with her own eyes rather than what she was subsequently told about the event.

FORESEEABILITY OF PSYCHIATRIC INJURY…? King v Phillips [1953] P heard her son’s scream and, looking out of the window, she saw her son’s tricycle crushed beneath a taxi. P sued D on the N. S. for fear of her son’s injury. The court refused to allow the claim. The cab driver cannot reasonably be expected to have foreseen that his slow backing would terrify a mother 70 yards away (court distinguished this from a runaway lorry in Hambrook’s case)

ALCOCK V. CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 A. C. 310 Actions were brought against the police arising out of the Hillsborough stadium disaster in April 1989 96 people were killed and over 400 injured by crushing when too many people were allowed to crowd into a confined area of the football stadium. The events were shown in a live television broadcast. The actions were brought by 16 people, some of whom were at the stadium but not in the area where the disaster occurred, and some of whom identified bodies at the mortuary.

ALCOCK V. CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 A. C. 310 All the plaintiffs were relatives, or in one case a fiancée, of people who were in the disaster area, but none were either a spouse or parent of those who died or sustained physical injuries (Except a couple). The police admitted liability for negligence in respect of those who were killed and injured in the disaster, but denied that they owed a duty of care to the plaintiffs. The House of Lords, applying Lord Wilberforce's "aftermath test“ (case: Mc. Laughlin) dismissed the plaintiffs' actions.

ALCOCK V. CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 A. C. 310 The plaintiffs lost their cases because they did not fulfil one or other requirements for plaintiffs who were not directly threatened by the accident but learned of it through sight or hearing of it. There must be a close tie of love and affection between the plaintiff and the victim. 2. The plaintiff must have been present at the accident or its immediate aftermath. 3. The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not by hearing about it from somebody else. " 1.

THE RELATIONSHIP BETWEEN P AND THE VICTIM OF ACCIDENT… Alcock v. Chief Constable of South Yorkshire [1992] “It was reasonably foreseeable that those bound by such ties may in certain circumstances be at real risk of psychiatric illness if the loved one is injured or put in peril. ” Zainab bte Ismail v Marimuthu [1955] A negligent lorry driver sped and killed P’s daughter who washing clothes at a standpipe in the side street – P saw the accident and consequently suffered from shock even after two years. Court awarded damages for the shock and rejected the issue of remoteness.

THE PHYSICAL PROXIMITY OF THE P TO THE SCENE… (OR PROXIMITY IN TIME AND SPACE) Mc. Loughlin v O’Brian [1983] P was at home when received news from a neighbour that her H & 3 children were involved in a serious road accident 2 hours earlier – She was taken to the hospital and saw her family in distressing condition and was told that her daughter had died – these events caused her psychiatric injury Ho. L allowed the claim. Although she was not present at the accident, she came very soon after upon its aftermath. The shock must come through sight or hearing of the event or of its immediate aftermath.

THAT THE P MUST SEE THE EVENT OR ITS IMMEDIATE AFTERMATH WITH HIS OWN SENSES (UNAIDED)… What if the P did not see by himself but rather heard or saw the news from television? Court in Alcock’s case: the reasons why he/she does not satisfy the proximity test: What can be expected? D could normally anticipate that current TV broadcasting guidelines do not allow the transmission of shocking pictures of individual’s suffering and dying Viewing there is not equivalent with the viewer being within the sight or hearing of the event or of its immediate aftermath’ because the Camera would show viewpoints which no individual would normally see (i. e. it’s an enhanced or edited view)

RESCUER’S CASE… Alcock v Chief Constable of South Yorkshire Police [1991] A further action following the Hillsborough tragedy brought by those that helped at the scene. Held: Rescuers should continue to qualify on policy grounds even though they were not in a close relationship with the victim. Friends and relatives raised the spectre of the "floodgates" argument, and the fear of opening up unlimited liability. Lord Oliver openly used the word "policy" in explaining his decision. Chadwick v British Transport Commission [1967] P’s H gave assistance to the victims of a trains accident – the scenes of ppl suffering caused him to suffer PI – Court allowed claim and held D negligent. It is foreseeable that somebody might try to rescue the passengers and might suffer from shock in the process.

BYSTANDER’S CASE… Bourhill v Young [1943] Normally the bystanders who are unconnected with the victims will not be able to claim for NS. However, if the circumstances of a catastrophe occurring very close to him were particularly horrific, he may be able to recover. Mc. Farlane v EE Caledonia Ltd [1994] Rejected this extension on the ground that reactions to horrific events are subjective.

REVISION Definition of Nervous Shock Types of Victims Requirements of NS Claim Medically Recognised Foreseeability Relationship Proximity (to the incident or its aftermath) Unaided sight or sense of the accident Rescuers Bystanders