University of Hull Law School Undergraduate Assessment Essay
22048/22116 Law of Tort
13th May 2013
The purpose of this essay will be to advise on claims for nervous shock, pecuniary and non-pecuniary losses, actions upon death and also liability of public bodies. I will demonstrate what is required for certain types of claims and how the victims can be compensated, also why there are limitations upon duties owed by e.g. public bodies and the rights to certain types of claims. A number of cases will help to clarify how these different areas of tort are dealt with in the courts and the principles underpinning those decisions.
It could be said that the initial attempts at carving out the distinctions between primary and secondary victims culminated in the case of Dulieu v. Whitewhere Kennedy J stated “Mere fright not followed by consequent physical damage will not support an action, but if it is followed by consequent physical damage, then, if the fright was the natural result of the defendants' negligence, an action lies, and the physical damage is not too remote to support it.” This case took the foreseeability requirement into account in determining claims for primary victims. Page v. Smith concerned primary victims who were not physically injured despite being exposed to danger of such injury. The case held that there was a duty owed by the defendant and that it was sufficient that the defendant’s behavior exposed the claimant to a risk of being physically injured, thus psychiatric injury had not to be foreseeable. The defendant would remain liable by acting in way clearly dangerously and irresponsibly.
Lord Lloyd in this case described a primary victim as being “directly involved in the accident and well within the range of foreseeable physical injury”. In Simmons v. British Steel plc it was similarly held that it was sufficient for a defendant to be held liable by establishing that he had exposed the victim to a foreseeable risk of injury. The case of McFarlane v. EE Caledonia Ltd confirmed the fact that claims for primary victim must involve being in actual danger at the time of the accident, a criterion which Alice fulfills since she was travelling at the back of the train, indicating that she was exposed to the danger of being physically injured. Consequently, Alice can claim as a primary victim.
Brian was a rescuer, belonging to the emergency services and the cases of Chadwick v. British Railways Board and White v. South Yorkshire Police both confirmed the fact that there exists no duty to rescuers unless they are in actual danger. However in Chadwick it was held that damages could be awarded to rescuers if they were in ‘the zone of danger’ after the event, which Brian was due to cutting dead and injured passengers from the carriages. In White v. South Yorkshire Police it was held that rescuers are not to be given any favorable treatment and in this particular case, none of the claimants were exposed to personal danger at any point, neither believed themselves to be so, hence their claim was dismissed. “There is no authority which decides that a rescuer is in any special position in relation to liability for psychiatric injury” Greatorex v. Greatorex illustrated that rescuers could claim as secondary victims. Chadwick v. British Railways Board expanded this further by alleging that rescuers could recover for suffering nervous shock. In contrast to this, Hale v. London Underground held that only professional rescuers could claim or those present at the scene or in the immediate aftermath. In this case a fire fighter got compensation since he put himself in a dangerous situation whereas in White v. South Yorkshire Police the police officers could neither claim as primary victim nor receive any compensation for claims of nervous shock since they had not exposed themselves to danger. So it seems as if the courts have adopted the policy that unless professional rescuers expose themselves to danger or suffers personal injury, they are not entitled to recover for nervous shock. In the above mentioned case, Lord Griffiths expressed the courts view on claims for rescuers as follows “If the rescuer is in no physical danger it will only be in exceptional cases that in the form of psychiatric injury will be foreseeable for the law must take us to be sufficiently robust to give help at accidents that are a daily occurrence without suffering a psychiatric breakdown.”Since Brian did not suffer any personal injury, he would be unable to claim.