The claimant David Owen makes his claim for damages in connection with his traumatic witness of John Russell's injury on the evening of April 16th 2001. Like Mr Patrick James, PC Owen saw the impact of accident and suffered symptoms of severe shock. The difference between them is that, here the claimant has no special relationship or close love tie with the injured party (Alcock & Others v. Chief Constable of South Yorkshire – as above) this excludes him from being a secondary victim. As a Police Constable, the claimant's nervous shock was not a reasonably foreseeable consequence by the defendant's negligence.
(See King v. Phillips ). Although the claimant witnessed the accident, he was not exposed to any immediate physical danger, as in White v. Chief Constable of South Yorkshire 1998. Policy dictates that the claimant ought not to be successful in his claim because the nature of his employment requires him to be called to and see such accident scenes regularly. However, prosecution may assert that there is a difference between being called to an accident as part of work and seeing an accident right before your eyes outside of work.
Lord Wilberforce adopted an approach, which held 'because shock was capable of affecting so many people, the Law must place a limit upon the situations in which a claimant could recover in respect of psychiatric injury' He held that there were three 'elements inherent in any claim' for psychiatric injury. They are: Where the claimant attempted to rescue the injured, it is not accepted that he thereby voluntarily accepted the risk of injury; this principle can be traced back to the case of Haynes v. Harwood  and applies to anyone who tries to rescue another, see Chadwick v.
British Transport Commission . However, where there is no real danger, the claimant who attempts a rescue may be held to be volens in respect of any injury he receives. Such was the case in Cutler v. United Dairies 24. In this case it could be said that the claimant, Mr Owen David, had knowledge of the risk of shock by rescuing but did not consent to it (See for example Dann v. Hamilton 25 Ann Sparks v. Health Authority Being the girlfriend and close companion of Mr John Russell, The claimant Ann Sparks was visiting him in the hospital after being called by his brother in law.
The question which then arises is whether the hospital should owe her a duty of care, as she was not an actual patient at the time (Donoghue v. Stevenson ). When the claimant saw the state of her partner, she became extremely upset; here the aftermath test might well be applied, in McLoughlin v. O'Brian, the Court held that it was reasonably foreseeable by the defendant that the claimant would have suffered nervous shock after such a long time. Because the claimant was not present at the scene of the accident, she is not a primary victim, but due to her close love tie with the injured party, she could be viewed as a secondary victim.
On the other hand, the psychiatrist did not mention of the claimant in his report and nervous shock was not mentioned in her medical report, therefore the claimant should only be suing for physical damages. In respect of the severe damage caused by the paranoid schizophrenic, it is undoubtedly very foreseeable that the consequences of leaving him alone with someone else (a black person to whom he makes racial comments when not under control) would be solemn. The fact that the hospital was aware of this behaviour and did not take reasonable care puts them at fault. See Reeves v. Metropolitan Police Commissioner 1999.
Having said this, defence may argue that the hospital should not be liable for the acts of third parties; this was the case in Smith v. Littlewoods Organisation Ltd 198726. In favour of the Health authority, Remoteness of damage may be considered in relation to the fact that nobody knew the mentally ill patient was carrying a knife. Re Polemis and Furness, Withy & Co 1921. Conclusion In conclusion, the difficulty of drawing the line between situations where a duty of care is owed and situations where no duty of care is owed is an issue with which all within the law of tort must grabble.
As with other parts of the law, there are a number of criticisms which have been levelled against the idea that tort is a deterrent function. One criticism being the duty to take reasonable care, it is said to be 'so vague that it has little impact upon peoples standard of behaviour'. In Junior Books Ltd v. The Veitchi Co Ltd 27, lord Roskill opined that 'Today, the proper control lies not in asking whether the proper remedy lie in contract… or tort… but in the first instance in establishing the relevant principles and then in deciding whether the particular case falls within or without those principles.
1. Hepple, Howarth, Matthews, (2000) Tort Cases and Materials, Fifth Edition, Butterworths. 2. Rogers H, (1994) Winfield & Jolowitz on Tort, Fourteenth Edition, Sweet & Maxwell. 3. Rogers H, (1998) Winfield & Jolowitz on Tort, Fifteenth Edition, Sweet & Maxwell. 4. McBride N, Bagshaw R, (2001) Tort Law, Longman. 5. Weir Tony, (1996) A Casebook on Tort, Eight Edition, Sweet & Maxwell. 6. Burrows A, (1994) Remedies for Torts and Breach of Contract, Second Edition, Butterworths. 7. Gracknell DG (2000) Obligations, The Law of Tort, Second Edition, Old Bailey Press. 8. Mullis A, Oliphant K, (1997) Tort, Second Edition, Palgrave.