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In this piece of coursework, I will seek to establish when a
defendant may claim for nervous shock. Aim to examine the provisions which law
uses to determine what category the claimants fall under when claiming for
nervous shock. (Primary or secondary)

When establish the defendant’s liability in negligence the
defendant must inflict nervous shock or psychiatric damage.  In establishing the defendant’s liability, it
is a requirement that the defendant responds in a traumatic manner due to an
event caused by the defendant. Psychiatric harm is a form of personal injury.
In regards to psychiatric injuries it must be noted that claims fall under a
primary and secondary victim category. Lord Oliver explained this in the case
of 1′
those cases in which the injured plaintiff was involved, either mediately or
immediately, as a participant(Primary), and those in which the plaintiff was no
more than a passive and unwilling witness of injury caused to others.'(Secondary)

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 Historically when the
courts dealt with psychiatric injuries they focused on the way harm tends to be
caused by an ‘assault on an individual’s mind or senses rather than physical
impact on the claimant’s body’, which gives us an understanding of liability
relating to nervous shock. Due to policy issues being raised by psychiatric
injuries the courts now take into account the type of harm suffered by the
claimant as opposed to the type of harm suffered.   According to the case of2′
even though the risk of psychiatric illness is reasonably foreseeable, the law
gives no damages if the psychiatric injury was not induced by shock.

  Psychiatric illnesses caused in other ways,
such as the death of a loved one, attracts no damages.’ Not possible to claim3
for grief, anxiety or distress’.   Control mechanism only apply to secondary
victims have been put into place by courts to restrict recovery for negligently
inflicted psychiatric harm (this is due to the high proportion of sham claims
and doubts in regards to causation. For a duty of care to be established in the
case of primary victims they must satisfy the Caparo test4′
an example of the scope of duty of care can be seen in Case of Carparo v Dickman
in which the judge developed a three stage test; A) The harm caused by the
negligent actions must be reasonably foreseeable; B) the relationship between
the parties to the dispute must one of reasonable proximity and C) it must be
fair, reasonable and just to impose liability. 
In the case of5
the House of Lords rejected her claims on the basis that her injuries were not
foreseeable, that as a pregnant woman she was susceptible to shock.

Andrew would be regarded as a secondary victim this is where
psychiatric injury occurs a result of witnessing someone else being harmed or
endangered. When claiming damages as a secondary victim; claimant must show
that the psychiatric harm suffered was reasonably foreseeable in a person of
ordinary fortitude in the same circumstances. This is demonstrated in 6Bourhill
v Young. The claimant who was eight months pregnant had witnessed an accident,
she had not actually seen the accident but had heard it and seen the motorist
blood on the pavement. She claimed to have suffered psychiatric injuries. House
of Lords rejected her claim on grounds that her injuries were not foreseeable.

The modern approach towards secondary victims was
established in the case of7
in which the claimant suffered psychiatric harm after hearing upon ‘  immediate aftermath’ that her children and
husband had been involved in a serious car accident which resulted in her
daughter losing her life and her other children and husband being injured. She
had arrived at the accident two hours later and was going through the most
extreme of circumstances which would go beyond mere sorrow or grief. The house
of lord had first rejected her claim on the basis that she was two miles away
from the accident and didn’t know about it until two hours later, she was not
entitled to recover damages for nervous shock. However the defendant had
appealed and the court had said ‘ that the nervous shock assumed to have been
suffered by the plaintiff had been the reasonably foreseeable result of the
injuries to her family caused by the defendants’ negligence; that policy
considerations should not inhibit a decision in her favour; and that,
accordingly, she was entitled to recover damages’8.

1
Alcock v Chief Constable of South Yorkshire (1992) 2

2 ALCOCK AND OTHERS APPELLANTS AND CHIEF CONSTABLE OF SOUTH
YORKSHIRE POLICE RESPONDENT – 1992 1 A.C. 310

3 Hicks
v Chief Constable of the South Yorkshire Police 1992 1 All ER 690

4 Caparo
Industries plc v Dickman and others – 1990 1 All ER 568

5 Bourhill v Young1943 AC 92(HL)

6
Bourhill v Young1943 AC 92(HL)

7 MCLOUGHLIN
APPELLANT AND O’BRIAN AND OTHERS RESPONDENTS – 1983 1 A.C. 410

8
Mcloughlin Appelant and O’BRIAN AND OTHERS RESPONDENTS-1983 1 A.C. 410

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