Goff and Palegray versus Chief Constable of South Yorkfordshire - Case Study Example

Goff and Palegray v Chief Constable of South Yorkfordshire Issue As the senior respondent of this case I would seek to deny the appeal filed by Goff and Palegray. The contention of the appellant that they should be allowed to recover damages based on the fact that the White v Chief Constable of South Yorkshire1 was decided on a misunderstanding of Page v Smith2 is untenable. Note that in the case of Page v Smith, the complainants was directly involved in the accident. In the case at bar, the complainants were not directly involved. Note that even though Goff was in the vicinity of the incident, he was not directly in harms way and he was not directly involved in the incident. Technically, he was merely a bystander who witnesses the incident firsthand. As for Palegrey, he was also not directly involved in the incident. He arrived at the scene only after the incident happened. Since the appellants were not directly involved in the incident, they cannot invoke the decision of the court in the case of Page v Smith. Since the two appellants were not directly involved in the incident, the decision of the court in the case of Alcock v. Chief Constable of South Yorkshire Police3 is applicable to them. Note that the decision of the court in this case is very clear when it comes to pinning liabilities. According to the court, “bystanders at tragic events, even if they suffer foreseeable psychiatric harm, are not entitled to recover damages.” Based on the decisions of this case, for person to recovery damages arising from nervous shock, he or she must satisfy the following requirements (a) the defendant’s negligence results to a foreseeable psychiatric illness on the part of the claimant due to his or her “close relationship of love and affection” with the victim (b) there is physical and temporal proximity between the accident and the claimant (c) the nervous shock must come through the claimant’s own sight or hearing of the incident or its immediate aftermath. (See also McFarlane v EE Caldeonia Ltd4; Vernon v Bosley (No 1)5; Greatorex v Greatorex and Others6). Moreover, even the Criminal Injuries Compensation Scheme of the Criminal Justice Act 1988 prescribes limitations as to when mental injuries may be considered. According to Section (109) 2 of the Act “Harm to a persons mental condition is only a criminal    injury if it is attributable -   (a) to his having been put in fear of immediate physical injury to himself or another; or   (b) to his being present when another sustained a criminal injury other than harm to his mental condition." Furthermore, it would also be noteworthy to point out that even the Parliament seeks to limit the class of persons who can recover damages. According to Section 1(A) (7) of the Fatal Accidents Act 1976, only the parents and the spouses of the victims are allowed to recover damages for pains and sufferings. These types of restrictions are meant to limit the class of people who can recover damages in case of harm.    In the case at bar, Goff can be considered as a bystander as he is not directly involved in the incident. Yes, he was present when the wall collapsed but the facts are clear that he was not in immediate physical danger. Moreover, the facts of this case do not show that Goff and Palegrey are related by blood or are bound by the ties of love and affection to the victims of the incident. As it is, Goff, even if he suffered a foreseeable psychiatric harm due to that event, still he is not entitled to recover damages. On the other hand, Palegray, an officer in this case has the duty to tend to the victims of the incident. Since he is duty bound to help these people, he may not recover damages for the psychiatric harm that he allegedly suffer in connection with the performance of his duty. Granting the appeal in this case will not only result to possible inequity, it will also open the floodgates of suit for damages in tort for psychiatric injury. According to Lord Styn in the case of White, there are at least four distinctive features of claims for psychiatric harm namely (a) the need to draw a line between acute grief and psychiatric harm (b) the compensation that must be made available to potential claimants who have witnessed the horrific incident (c) the potential increase in the number and class of persons who can recover damages in tort in the event where the special rules governing the recovery of damages for psychiatric harm is abolished or relaxed, and (d) the imposition of liability for pure psychiatric harm may result to a disproportionate award of damages as against the harm done. In the first instance, drawing the line between acute grief and psychiatric harm may be difficult especially when the symptoms of these two states are more of less the same but if we are to determine as to whether or not the parties did sustain psychiatric injury and not afflicted with acute grief, we need to draw the line between these two otherwise, anybody who feels that he or she has been emotionally and mentally affected by a horrific even will claim for damages. In the second instance, it is very important that claims for psychiatric injury should follow the criteria set by common law in order to prevent frivolous claims. We have to understand that claims for damages can be quite costly and if we do not strictly follow the rules that have been previously set when it comes to claims for damages; we may end up overburdening the coffers of the government and the private sector. Moreover, recovery for damages may not really be the best solution to the issue of psychiatric harm. As pointed out by the court in the case of James v. Woodall Duckham Construction Co. Ltd.7, psychiatric harm is often repeatedly encountered by the parties in the course of the litigation that in the end, filing claims for damages becomes an “unconscious disincentive to rehabilitation”. We have to understand that each time the parties come to court they have to relieve the horrific incident all over again. In the third instance, relaxing or abrogating the rules on recovery of damages based on psychiatric injury will open the floodgates of suits that could render the courts ineffective in promoting the ends of justice. Note that the court depart from its rather relaxed stance in the case of McLoughlin v OBrian8 when it decided the case of Alcock in order to avoid a deluge of suits for recovery of damages. Note that in the case of McLoughlin v OBrian9, the court allowed the victim to recover damages for psychiatric injury even if she was not present at the scene of the accident. The rationally of the court in allowing recovery for damages in this case is the close ties of love and affection between the parties. The decision of the court in McLoughlin has received much criticism thus, in the case of Alcocks, the court adopted measures to limit the class of persons who can recover damages. If the court is going to relax again its criteria for determining the existence of tortuous liability, it would defeat the purpose of protecting the courts from dealing with frivolous suits. Of course this does not mean that the criteria for determining the existence of liability for psychiatric injury should be cast in stone but the point is that allowing the appeal of the parties herein based on the argument that the court erred in applying the case of Page in deciding the case of Alcock would open the floodgates of suits. Note that in the case at bar, hundreds of people were at the scene and if the court would allow the case at bar to prosper and award damages to the appellant, this would send a message to the rest of the people who were at the scene but were not directly involved in the incident that they too can recover damages. As for the fourth instance, allowing the appellants herein to recover damages based on psychiatric injury would create a burden of liability that may not be proportionate to the harm caused by the incident. As pointed out by Lord Styn in the case of White, “the imposition of liability for pure psychiatric harm in a wide range of situations may result in a burden of liability on defendants which may be disproportionate to tortuous conduct involving perhaps momentary lapses of concentration…” We have to understand that once a decision of the court in given, this decision will be used to decided subsequent cases. If we allow this appeal to prosper, parties who are involved in road accidents may resulting from momentary loss of concentration will be unduly burdened with the cost of damages. As stated by the court in the case of Mount Isa Mines Ltd. v. Pusey10, the court must be careful in deciding cases to avoid creating persuasive precedents that may have negative impact in subsequent cases. Issue # 2 The contention of the parties that the case of White v Chief Constable of South Yorkshire was also wrongly decided with regards to rescuers is untenable. The contention of the appellants may be viewed in the light of the opinion of Lord Oliver of Aylmentron in the case of Alcock. According to Lord Oliver in this case, a rescuer who come to the aid of the victims after the incident is unlikely to be involved in the incident itself but the fact that the rescuer was involved in the aftermath thereof, he is now deemed to belong to the primary victims category in so far the liability for damages arising from psychiatric injuries. Although the learned opinion of Lord Oliver in this case is geared towards allowing the victims to recover damages, this opinion should not be seen as basis for deciding a case which involved public officers involved in a rescue operation. Yes, the public officer in the case at bar experienced great stress from the ghastly incident and they were involved in the aftermath of the incident but that does not meant that they should be treated as a bystander in this event. Note that Palegray come to the rescue of the victims as part of his public duty so in essence, he could not be considered as innocent bystanders. It doesn’t matter if he was not directly ordered by his superior to come to the rescue of the victims in this case. The fact that he has a sworn duty to serve the public is enough to bind him to give aid where it is needed. Does Palegray deserve to recover damages as a bystander in this case? No he should not be allowed to recover damages based on that argument. In the case of Alcock, the court acknowledge the foreseeable risk of psychiatric damage to police officers on duty but the court added that because of their “training and experience”, police officers are less likely to “suffer psychiatric injury as a result of their involvement in this terrible event and its aftermath...” Besides, Palegray should have been prepared to deal with the site that greats him when he came to the scene. What he saw when he came to rescue of the victims is part and parcel of his involvement in the aftermath of the incident and as police officer with the right training and experience to deal with certain types of crisis, he should have been more prepared to deal with the situation. We have to differentiate the case of Palegrey with the case of Chadwick v. British Railways Board11. Note that in the case of Chadwick, the person involved is not a public officer and he was not even attempting to rescue anyone. Chadwick was working at the railroad when the incident happened and he was forced by circumstances to give aid to the victims of the incident. He was not in anyway duty bound to extend help to the victims but he did anyway. Unlike Palegray, he did not have the right training and experience to deal with the aftermath of the incident. In the case of Chadwick, the court correctly found that Chadwick deserve to recover damages for nervous shock. Since Palegray could not claim damages as primary victim, should he be allowed to file claim as secondary victim? The rule of claiming for damages in case of psychiatric injury is not rigid nor is it unbending. As an employee of the tortfeasor, Palegray may still be able to recover damages as against his employer for the psychiatric damage that he suffered. According to the court in the case of Priestley v. Fowler12, where a person is involved in the rescue operation by virtue of his employment, he may file claim damages for psychiatric injury against his employer (see also Walker v. Northumberland County Council13. In our case, the incident happened because of the negligence of the local police force of which Palegray was an employee. Since the local police force has the duty to take care of its employees, it can be held liable for its failure to protect its employees from foreseeable harm. Bibliography Books 1. Bagshaw, R and McBride, N (2005) The Law of Tort, 2nd edn, Harlow: Longman Cavendish Publishing, 2. Elliott and Quinn (2003) Tort Law, 4th edn, Harlow: Longman 3. Hodge, S (2004) Tort Law, 3rd edn, Devon: Willan 4. Horsey, K & Rackley,E. (2009) Tort Law Oxford University Press, Oxford 1st ed 5. Jones, MA (2006) Textbook on Torts, 9th edn, Oxford: OUP 6. Lunny M., Oliphant K. (2008) Tort Law: Text and materials, Oxford University Press Laws 1. Criminal Justice Act 1988 2. Fatal Accidents Act 1976 Table Of Cases 1. Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 2. Chadwick v. British Railways Board [1967] 1 W.L.R. 912 3. Greatorex v Greatorex and Others [2000] Times Law Report May 5 4. James v. Woodall Duckham Construction Co. Ltd. [1969] 1 W.L.R. 903 (CA) 5. McFarlane v EE Caldeonia Ltd; [1994] 2 All ER 1 6. McLoughlin v OBrian [1983] 1 AC 410 7. Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383, 396 8. Page v Smith [1995] 2 WLR 644 9. Priestley v. Fowler (1837) 3 M. & W. 1, 6 10. Vernon v Bosley (No 1) [1997] 1 All ER 577 11. Walker v. Northumberland County Council [1995] 1 All E.R. 737 12. White v Chief Constable of South Yorkshire 1999] 2 A.C. 455 Read More