Law of Tort and Negligence - Essay Example

1. The claimant should prove that the negligent behavior of the defendant has caused injury or loss to win the case. in the case of North Glamorgan N.H.S. Trust v Walters, it can be seen that the defendant was negligent in that the “claimant's infant son developed an epileptic fit as a result of the admitted negligence of the defendant trust, which caused irreparable brain damage and death when the child's life support system was turned off.” The act of turning off the support system aggravated the problem and this led to the claimant suffering a pathological grief reaction. The claimant is a secondary victim and is entitled to claim damages as a result of the horrific experience she encountered at the hospital. The psychiatric injury experienced by the claimant is a direct result of the action of the medical staff at the hospital and this is the reason why she is entitled to get damages. Though the defendant does not directly accept the charges, the facts are so glaring that it can be seen that they are responsible for the illness experienced by the claimant after the horrific incident.

2. a. The control mechanisms relating to a second victim that was identified by the trial judge as clearly satisfied in this case include the following: First and foremost, it can be seen that there is proximity in terms of the relationship between the claimant and the victim. The claimant is the mother while the victim is the son and there is true love between the two. In other words, the actions of the medical staff at the hospital led to the unfortunate scenario that resulted in the death of the infant which later affected the mother. The harm is a direct result of the actions of the medical staff and these factors were taken into consideration by the trial judge.

b. The control mechanism that was in dispute is that the 36 hours involving all the events that transpired could be held in law as one horrifying event. The defendant also argues that the judge erred when he concluded that the case was sudden since it transpired over a certain period that was characterized by changing events. However, the judge upheld that the control mechanisms were satisfied by the claimant in this particular case.
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3. a. The ground for appeal by North Glamorgan N.H.S. Trust is that the judge expanded the control mechanism involved in the case. In other words, the defendants are saying that the judge did not take into account the provisions of the law about the facts that should be considered in the case of a secondary victim suffering psychiatric harm as a result of the actions of the defendant. The defendants also argue that the mother appreciated the removal of the life support system from the child which led to his death. The dependents also tried to invoke certain sections of public policy but it was established that the judge did not take any incremental position in passing the judgment in favor of the claimant.

b. The Lord Justice Ward considered the issues that constituted the necessary event in dismissing the appeal by the defendants. The events took place in a progressive way which led the judge to believe that there was an element of secondary causation of psychiatric injury to the claimant. The other issue that was taken into consideration by the judge is that the aspects of proximity in terms of time and relationship between the two were proved beyond any reasonable doubt. Therefore, the judge did not err in passing the judgment which resulted in the dismissal of the appeal by North Glamorgan N.H.S. Indeed, the medical institution had a duty care to give proper treatment to the child which they failed.

5. The acknowledgments by both Lord Justice Ward and Lord Justice Clarke of criticisms of the decision in Alcock v Chief Constable of South Yorkshire Police [1992] state that the claimant was not a participant in the case. The judges argue that the claimant ought to prove how she or he has been affected by the event if they have not been part of it. However, as illustrated in the case of Alcock v Chief Constable of South Yorkshire Police [1992], the claimant is a secondary victim who suffers as a result of the action that transpired. In most cases, nervous shock is a result of the situation experienced by the claimant which leads the judges to rule in their favor.

Nervous shock does not only result as a result of the direct involvement of the victim but he may experience a certain situation where the events that unfold will impact negatively on the person involved depending on the relationship that exists between them and the victim. Therefore, the major criticisms, in this case, are causation and the relationship that exist between the two parties involved. In the case of causation, it may not be direct but it may result in the third party suffering from nervous shock from what they have experienced or gone through. The other criticism is related to the aspect of proximity in terms of the relationship between the two people involved. Read More