It has yet to include psychiatric illness caused by the accumulation over a period of time or more gradual assaults on the nervous system’. Nolan, Donal, ‘Deconstructing the duty of care’ [2013], L.Q.R. In addition, claimants He was mistakenly diagnosed as suffering from hepatitis A. A maximum recoverable amount can be set in the BOX 4 The Walters case (as summarised by Mrs Justice Smith DBE in Shorter). to what constitutes a recognised psychiatric condition as opposed to grief, anger or distress, or another emotional response as this relies on psychiatry. She claimed negligence against the NHS trust whose employee had attended him on 26 October. Law of Torts. act. Had Mrs Sharma survived, the Claimant would have been spared the grief of her loss, the anger of knowing it need never have happened, the feelings of guilt at not having done more to ensure Mrs Sharma's safety and the distressing experiences which she subsequently had at SGH [St George's Hospital]. ‘[Mrs Walters’ baby's] condition deteriorated and his parents took him back to hospital. should not be regarded as somehow less deserving under English law. One way to reform the current restrictive system is to follow the lead of states such as The police arrived at the gym and told her that her son was dead. and the proximity test. […] I regard it as wholly artificial to describe the sight of his wife in her post-operative condition as the end of a distinct event. Secondary victims seeking to recover damages for psychiatric injuries have to jump over many hurdles, and their lawyers and the expert psychiatric witnesses have to negotiate what has been described as ‘an intricate legal maze’ (Thomas Reference Rix2003). Hillsborough disaster. Cashman, Vanessa, ‘Unpicking the Patchwork Quilt: Psychiatric Injury and Secondary Victims’ [2013], PI Brief Update. Copyright © 2003 - 2020 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. The necessary causal analysis will be fact specific. e should avoid reference to classificatory systems such as ICD and DSM. It was an experience which had caused the Claimant considerable distress when speaking of it during her interview with [Dr C] in October 2011 and when giving oral evidence. 7 Advised by medical staff that her sister was unlikely to survive. This is not an example of the work produced by our Law Essay Writing Service. ‘These descriptions and guidelines carry no theoretical implications, and they do not pretend to be comprehensive statements about the current state of knowledge of the disorders. That tends to support the fact that those incidents had a greater emotional impact than the time spent in the A & E Department at ESH.'. Ibid, p. 8-9. View all Google Scholar citations The court argued that if they held otherwise then claimants could recover potentially years after a negligent According to Hogarth and Cashman, Second, it is, bluntly, in the nature of hospital visits that you can expect bad news: you can expect to see drips, monitors and sick people. It would be unfortunate if secondary victims' claims were to become embroiled in debates about an individual claimant's level of medical knowledge and its effects upon whether an “event” should be classified as “horrifying”.'. the passive and unwilling witnesses of injury, or of the threat of it, to others – seek compensation through the courts for the psychiatric injuries that they have suffered (traditionally but confusingly referred to as ‘nervous shock’ claims), there would in theory be the potential for a virtually limitless number of claims. In Froggatt v. Chesterfield & North Derbyshire Royal Hospital NHS Trust, a hospital negligently diagnosed a woman as having breast cancer when As discussed above, the Alcock criteria of recoverability for secondary victims of psychiatric damage are difficult to apply in practice and However, the court had contrasting positions in similar cases such as In Alcock, the court stated that there was no proximity where there was a time delay between a mortuary visit nine hours after the traumatic There, the need for a recognised psychiatric disorder is a general rule but not absolute. He cannot claim. A father standing on the pavement witnesses, from a position of safety, but at very close quarters, a terrible car accident, causing horrific injuries and death to his child. He appeared to recognise the appellant and then lapsed into unconsciousness. a "subject": true, It was in Page v Smith that the House of Lords divided claimants into two groups, primary and secondary victims. I do not consider that it is realistic to carve up the incidents into those which did and did not play a part. Is all this just and fair? It is a judicial proceeding developed through case law in which the rules of evidence apply. She said that she felt ‘scared'. An additional issue is the criteria of establishing that there was a close tie of love and affection between the primary and the secondary victim. Created by. She shouted to her friend that she thought that the victim was her son. victims of tortious conduct. But this is not necessary in other torts e.g. (Note that even such a diagnosis will only be sufficient if it is of a condition which satisfies the requisite features in terms of its causation – essentially, that it was caused by the shocking nature of the event to which the individual was exposed – see further below). Stage in this sense it operates as one of these was Walters ( see )! 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