TORT LAW - F Essay Example | Topics and Well Written Essays - 2500 words

TORT LAW - F - Essay Example The difference between the two thus far developed has been a cause of grave concern for common law, but the distinction has been made evident by recent cases to a great extent, especially with the presence of principles laid out in Alcock v Chief Constable of Yorkshire Police [1992]1 and McLoughlin v O’Brian [1983]2. What is Nervous Shock? Nervous shock is described as an array of recognizable psychiatric diseases which are over and beyond the usual distresses a person encounters upon witnessing the scene of an accident. Mere emotional setbacks that are considered ordinary, including fear, grief and worry are not considered sufficient at law3. Thus, ailments such as clinical depression, anxiety neurosis, and post traumatic stress disorder fall into the category of nervous shock, which admittedly is a label underplayed as it represents a larger than normal degree of psychiatric damage4 than simply suggesting an element of shock. As Lord Jauncey clarified in Alcock at 419, the c laimant must suffer a â€Å"recognizable psychiatric illness† in order to justify cause for action (Chadwick v British Transport Commission [1967]5). Thus, it must be observed that nervous shock is more aptly treated as personal injury to the mind as different from personal injury to the body. It follows that the first step to determining whether a claim of psychiatric damage is valid at law would be to categorize the kind of harm experienced, and whether it was serious enough to give rise to a duty of care on the part of the defendant, as normal fear and anxiety is exempt from such duty and people are expected to be of reasonable firmness capable of dealing with normal distresses6. Negligently Inflicted Psychiatric Harm If a claim for psychiatric harm stems from one in negligence, the same principles of establishing a claim apply. Thus, the four requirements of a negligent act must be present, namely the duty of care, breach of that duty, causation and the damage resulting f rom that breach which must not be characterized as too remote. The law related to duty of care is illustrated well by the principles established in Donoghue v Stevenson7 and Caparo Industries v Dickman8. The duty of care is established when a sufficient relationship can be established by virtue of neighborhood and proximity of relationship so that the claimant can be reasonably foreseen to be injured by the defendant’s act and whether establishing such a duty would be fair, just and reasonable in the present case9. In order to establish this duty, the courts take heed from recognized duty situations (Sutherland Shire Council v Heyman [1985])10. Thus, a manufacturer may be sued by a consumer for a defective product which causes physical harm (Donogue), the driver of a car who engages in an accident but only causes psychiatric damage but no physical damage to the victim he collides with may also be liable (Page v Smith [1995])11 but the employee-employer relationship does not g ive rise to an automatic duty of care in terms of psychiatric injury suffered by rescuers after an incident (White v Chief Constable of South Yorkshire Police12). Since the damage we are concerned with is psychiatric, the harm may not just extend to the victims who are immediately affected by a risk of personal injury resulting from the negligent act, but also