How a Judge in the High Court Might Approach Claims for Nervous Shock - Essay Example

?A Claim for Nervous Shock (Psychiatric Injury The High Court’s Approach Towards It Facts: The twins, James and Christopher went to see a local football game together with an employee of the stadium. They used their vuvuzelas to cheer for their favourite team. The loud sound of their vuvuzelas caused police horses to run amok and into the audience. As a result, hundreds were killed and seriously injured. James and Christopher were amongst those who were killed. Their mother and grandmother who watched the game on television saw the entire event and suffered nervous shock. The twins’ father who was at the stadium during the disaster also experienced psychiatric injury but was still able to help the injured others. Issue: Whether or not the psychiatric injury claim of the deceased boy’s grandmother, mother and father would prosper. Cause of Action Cause of action in the instant scenario shall be analyzed in reference to the case of Dulieu v White (1901), a landmark precedent. In that case, the High Court granted the plaintiff’s claim for nervous shock. The defendant’s negligent act actually frightened a pregnant woman which eventually caused her to miscarry. Judge Kennedy J set forth the following requisites for filing a psychiatric injury claim: (1) the fright or shock whether mere or substantial is followed by a physical damage (2) the fright or shock is a natural result of the defendant’s negligence (3) the physical damage done is not too remote to support the claim. Phillimor J added one more requirement, that is, there should be a legal obligation on the defendant’s part not to frighten or shock the plaintiff by his or her negligent act. All of the mentioned requisites should be present in order for cause of action to exist. The respective situations of the deceased twins’ grandmother, mother and father shall be subjected to analysis. As to the twins’ grandmother and mother, it is contended that they have no cause of action. First, no consequent physical damage has transpired after they were frightened. Notably, the two were merely watching the whole event on television. Stated otherwise, they were not located in the place of incidence. Although their fright can be regarded as a normal result of the defendant’s (the stadium owner) negligence, still the third and fourth requisites are not complied with. The remoteness of the physical damage done shall not be dealt with since there was no physical damage to speak of in the first place. As the game was aired on television, the stadium owner had a duty to prevent any circumstance that would frighten the audience. In the given scenario, the horrific event was unluckily televised which shocked the boys’ grandmother and mother. In that respect, the stadium owner is negligent. James and Christopher’s father has also no cause of action. Despite the fact that their father was at the place of incidence, it is to be presumed that he did not suffer any physical damage. It was just stated that he too experienced nervous shock and administered first aid to the injured others. Needless to say, the first requisite is absent. His fright however is a normal effect of the defendant’s negligence. The third requisite is not an issue in this instance. Based on the stated findings, a High Court judge will declare that the twins’ grandmother, mother and father have no cause of action to file a case for psychiatric injury. Each of them may have complied with the second and fourth requisites but they failed to pass the first and third conditions. This is in pursuance to its simple approach based on the exclusive elements of psychiatric injury. Legal Standing In the present scenario, legal standing (locus standi) shall be discussed in light of the principles enunciated in Alcock v Chief Constable of South Yorkshire Police (1992). Alcock was one of the injured victims in a crowd crush. In this case, the court did not uphold the plaintiff’s claim for nervous shock. The House of Lords promulgated two requisites for one to have a legal standing in such action: (1) the claimant should perceive the frightening occurrence with his or her own unaided senses or witness its immediate aftermath; (2) the claimant should also demonstrate a sufficient proximate relation to the individual killed or injured -- this refers to the close tie of affection and love presumed between parents and children. The presence of both conditions is essential to prove legal standing for nervous shock. Again, the respective circumstances of the deceased boys’ grandmother, mother and father shall be subjected to the test. The grandmother and mother have no locus standi to sue. First, they did not perceive the tragic incidence with their own unaided sense. The television aided both of them to witness the tragic event. In other words, they indirectly saw the disaster. They were not physically present. Such fact could not pass the proximity test. Even in the example mentioned by Lord Nolan, they could not be regarded as an exception. To note, the mother and grandmother did watch the whole disaster unfold on TV. It could be presumed then that what they saw was not the specific scene wherein the twins were killed. The sense of “actual witnessing” should have transpired. In another instance, they did not see the event’s immediate aftermath. Nevertheless, with regard to the second requisite, the grandmother and mother satisfy such. Obviously, both of them had a close tie of affection and love with the twins. In fact, their grandmother had travelled far just to be present during the boys’ birthday celebration. Close relationship is presumed between parents and their children as well as amongst spouses. Significantly, the twins’ father has a legal standing to sue. Besides being their father, he was there during the incident and even became a rescuer. A rescuer can actually be granted legal standing as against a mere bystander -- this is illustrated in the case of McFarlane v EE Caledonia Ltd (1994). The analysis would lead a court judge to proclaim that the boys’ grandmother and mother have no legal standing to sue as opposed to their father. This promulgation shall be based on a liberal approach by recognizing exceptions to the general rule. Ultimately, the psychiatric injury claim of the deceased boy’s grandmother, mother and father will not prosper. Employer’s Negligence The owner of the stadium as the employer is liable to the injuries caused to its employees due to the risks emanating from physical agents or noise under Article 4, section 6 of Council Directive 2003/10/EC as of February 6, 2003. In the case at hand, the employer failed to accord attention to the sounds produced by vuvuzelas. It was negligent per se. Vuvuzelas actually belong to other sounds which need particular observation to lessen the risk of incidents. References Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Council Directive 2003/10/EC of 6 February 2003 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (noise). Dulieu v White [1901] 2 KB 669. McFarlane v EE Caledonia Ltd [1994] 2 All ER 1. Read More