The term nervous shock 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.
The following types of psychiatric illnesses are likely to form the basis of a claim for nervous shock:
Post-traumatic stress disorder
If a person is suffering from extreme grief and sorrow but this falls short of a recognised psychiatric illness as above then they will not be able to bring a claim for nervous shock. People are expected to be able to deal with grief and sorrow.
The first thing which needs to be established for a claim of nervous shock is that there was a negligent act.
In order to establish negligence the following elements need to be established:
Duty of Care
Breach of the Duty
Damage or Injury
The most important element to establish in the case of nervous shock is that harm has been caused to the claimant by the negligent act of the defendant.
The damage which must have been caused to the claimant must have been of an emotional or mental nature. In a case of nervous shock or to use a term used more recently by the courts – psychiatric damage – the claimant will have 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.
One of the issues which the courts are concerned with when dealing with nervous shock is the floodgates argument. This is an argument which is based on the fear of too many potential claimants arising from one incident of negligence. The courts would seek to limit this potential list of claimants.
At first the courts felt that a claimant could only succeed in a claim if they were held to be within the range of physical impact of the negligent act.
Another way of putting this is that it could only be the primary victim who would be able to make a claim as they were the person who would foreseeably suffer physical damage.
This was however, later extended to people who saw or heard the accident.
As the case law developed in this area the test for nervous shock moved more towards a test of reasonable forseeability which was taken to include people who were involved in the immediate aftermath of the incident but who were not necessarily present at the scene of the incident.
The test required two distinct elements to be established:
The relationship of the person to the individual involved in the accident
The claimant was required to be close to the accident
It was held that the closer the emotional tie then the greater the claim was for consideration, meaning that it should simply be in relation to family or loved ones.
Damages have only ever been recovered in the courts for a claim of nervous shock when the relationship has been husband and wife or parent and child. It has however, been made clear in case law that other close relationships will be considered if there is evidence to suggest this.
The second element to prove was that the claimant had to be proximate to the accident which must be close both in time and space. This could however, include individuals who did not in fact witness the accident but who came upon the aftermath.
Shock which resulted from being told by a third party would not be sufficient for a claim of nervous shock.
This led to the distinction between primary and secondary victims. A primary victim was a person directly involved in an accident as a participant and who was actually exposed to the risk of physical injury. A secondary victim would simply witness the accident.
The courts have held that a motorist has a right to expect that bystanders are people of reasonable fortitude and will be able to cope with the ordinary day-to-day horrors witnessed on the road.
The only way in which a mere bystander to the accident who suffered a psychiatric injury as a result of witnessing the accident would be able to claim is that if he or she had a close tie of love and affection with the individual hurt in an accident due to the negligence of another.
A secondary victim will therefore only be able to make a claim if he or she can prove a close tie of love and affection.
Often members of the emergency services suffer a recognisable psychiatric illness after witnessing the scene which they are called to.
Rescuers can be classed as primary victims if they are, or believe themselves to be, exposed to physical danger. If we take the example of the fire service it is more than likely that this could be considered possible as they continually put themselves in physical danger in order to save the lives of people involved in accidents.
In one high profile case the House of Lords considered the issue of police officers suffering psychiatric illness after tending to victims of the Hillsborough football stadium tragedy. The House of Lords held that an employer has a duty to protect his employers from physical but not psychiatric harm.
Following on from this decision a rescuer who is not himself exposed to physical risk by being directly involved in the rescue will be regarded as a secondary victim and therefore not entitled to make a claim.
This can be extended to paramedics who simply treat the individuals involved in an accident – they will simply be viewed as secondary victims as they are trained to cope with witnessing harrowing scenes and the sight of serious injuries.
Consequently all psychiatric injury claims where personal injury is not reasonably foreseeable employees and rescuers will not get special consideration.
There have been cases whereby a claimant has suffered post-traumatic stress disorder having had to identify the body of a loved one at the incident of the accident. In cases such as this when the individual suffering the illness was not present at the incident and therefore not in any danger of physical injury the court has held that where it was reasonably foreseeable that a psychiatric injury would arise from an event, the person who caused the event had a duty of care in relation to that psychiatric injury.
Following on from this an individual who identifies a body at the scene of the accident can claim for psychiatric injury if they can prove a close tie of love and affection to the deceased.
The court has also had to consider a case of post-traumatic stress disorder being suffered after a mother was asked to identify the body of her son 10 hours after the incident occurred. In this case there was no successful claim for nervous shock as 10 hours after the incident could not be seen as the immediate aftermath.
Accordingly a claim for nervous shock can only be brought through the claimants own seeing or hearing of the incident or the immediate aftermath of the incident.
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