The extent to which the claimants can be compensated

In this essay, in order to advise Mike Jigger, Maria and Soraya in a proficient manner I will shed some light on the proposition at hand that raises issues of breach of duty of care and psychiatric injury with regard to liability in negligence and the kind of damages that can be recovered. I shall explain the extent to which the police was in breach of their duty of care and as a corollary to this, the extent to which the claimants can be compensated for psychiatric and physical injury and provide evidence through a number of sources where needed.

The facts suggest that the police have conceded that they owed a duty of care to Mike and his uncle Lewis for their physical injuries; however they have disputed the extent of their breach by limiting it only to physical harm. In order to advise Mike Jigger, Maria and Soraya for their claim, it is imperative to consider a few influential House of Lords decisions which have interpreted breach of duty and to determine whether or not Mike can claim for psychiatric injury. Establishing psychiatric injuries claim in the presence of qualified rescuers can be complicated as referred to in Liability for Psychiatric Damage, [1] by Michael Jones and Paula Case.

Mike Jigger would be able to claim compensation as a primary victim since he was present at the site and was physically harmed himself, unlike Maria and Soraya. In Dulieu v White & Sons 1901 [2] the plaintiff was permitted to recover for psychiatric illness having been put in fear for her own physical safety when the defendant crashed through a wall. Therefore, Mike satisfies the criterion as a primary victim of nervous shock.

Mike may be able to increase the quantum of his compensation for psychiatric injury [3] by pleading that he was a secondary victim of the incident as well as he is likely to be paralysed and will not be able to perform in public again and would require help to dress and feed himself. This notion has been explained in the book Tort Law, [4] by Mark Lunney and Ken Oliphant. Psychiatric injury or nervous shock is a traditional notion. It is when one suffers through mental disturbance and pain, after witnessing an incident. Mike Jigger suffers an economic loss as he can no longer work or enjoy recreational activities such as car racing and witnessing the death of his Uncle Lewis, who was like a father to him, therefore he would be a victim of depression and anxiety. Maria and Soraya are also victims of psychiatric injury as they witnessed Lewis’s death on the television. However, to accomplish a claim for a “nervous shock", Mike, Maria and Soraya should be able to exhibit a decipherable state of shock and psychological harm and provide medical evidence.

Mcloughlin v O Brian 1982 [5] is a case in which psychiatric injury was caused due to an accident. The plaintiff was informed about her husband and three children who were involved in an accident and saw one of her children dead in the hospital, while the other two children and husband were severely injured. This caused the plaintiff psychiatric injury and Lord Wilberforce in the House of Lords where the case was dealt with, stated that the plaintiff must be compensated as she fulfilled the proximity of time and space. According to McLoughlin, it is necessary to consider the class of persons whose claims should be recognised, the proximity of such persons to the accident and the means by which shock is caused, in order to contribute liability in favour of a secondary victim.

Contrary to this approach, if we consider the Alcock v Chief Constable of South Yorkshire Police 1992 [6] the proximity requirement was refined to include proximity of relationship, proximity of time and space and proximity of perception. In this case brothers were not considered to be in as sufficiently proximate relationship to be made out as secondary victims by the Judicial Committee of the House of Lords who had a clause that had to be executed in turn for a duty of care to exist. For the House of Lords the condition was not met by the brother. This case advocates that it may be difficult for Mike to claim that by witnessing his Uncle Lewis’s suffering he is a secondary victim. However, it is pertinent for Mike to have recourse to Lord Ackner’s speech in Alcock where he held that the quality of a relationship differs widely and maybe judged on a case by case basis. Such an approach was followed in McCarthy V Chief Constable of South Yorkshire [7] . In the McCarthy v Chief Constable case, half brothers were held to be in a sufficiently proximate relationship. Therefore, as Lewis was like a father to Mike, it is probable that a similar degree of relationship would be established.

Furthermore, since Mike witnessed the incident first hand, the requirement of proximity of time and space and perception can be easily dispensed with and so it is likely that Mike can be compensated as a secondary victim as well. This point of view can be seen in the case of Page v Smith 1995 [8] . In this case the plaintiff had a car accident and was not physically injured but was psychologically harmed. The defendant argued that he was not accountable for psychiatric injury as it was not estimated. The House of Lords in their judgement held the defendant liable for the plaintiff’s psychiatric injury. Although the police have accepted that they owe a duty of care to Mike for his physical injury, they can argue on the extent to which they are liable as psychiatric injury for the police is unforeseeable.

In addition to Mike Jigger’s claim, it must be pointed out that as he likely to be paralysed from the waist down he will not be able to carry on with his hobby, car racing. I would advise Mike to claim for his hobby in conjunction with personal injury and psychiatric injury claims. However, the police may not consider themselves held liable for this claim as they will argue that car racing is a remote non-pecuniary damage and is not foreseeable. In Fletcher v Autocar and Transporters Ltd 1968 [9] , plaintiff’s hobby was a costly one as is the case with Mike’s passion for car racing. It was held in this case if the victim has already got substantial damages for personal injury then it is probable that court won’t award damages for loss of hobby because it would amount to overcompensating. Hence, it is difficult for Mike to argue for loss of amenity with respect to his costly hobby.

As the award for damages for Nervous Shock in UK are very limited therefore Mike may further claim damages for the future cost of hospital, medical, nursing and home care. As per the facts of the case, Mike is paralysed and needs permanent nursing and care. So according to Shearman v Folland 1950 [10] , if he needs to live in a special institution such as nursing home because of his physical condition then he is entitled to the cost of it, provided that it was reasonably foreseeable. Furthermore, as per the decision of the Court in Griffith’s v Kerkemeyer [11] , Mike is entitled to recover such damages even where the nursing home care is provided gratuitously by relatives or anyone else.

Finally, Mike may recover damages for the loss of prospective earnings as he will never be able to perform in public again. Such a claim is not with respect to any speculation on behalf of Mike and his future success as a rock star but it in fact relates to his incapacity to perform again ever in public. Though, the Court may be reluctant to grant any speculative damages on part of Mike with regards to his deteriorating physical condition in future as there is no conclusive medical evidence available on it and the medical experts are uncertain but the court may award damages for the loss of actual earning (inability to perform in public again) which Mike had suffered because of the paralysis.

At this juncture, Maria and Soraya’s claim for compensation must be taken into account, Maria and Soraya may be able to claim as secondary victims as they will easily overcome the hurdle of having a proximate relationship with Lewis; being his spouse and daughter. However, the obstacles of proximity of perception and proximity of time and space may be more difficult to surmount.

It was held in Ravenscroft v Rederiaktiebolaget Transatlantic [12] that the claimant must suffer psychiatric injury as a result of hearing or seeing the accident or its immediate aftermath and that being told about the accident by a third party is insufficient to constitute liability. This case supports Maria and Soraya who although were not physically present at the time that Lewis died but they witnessed the whole accident on the evening news, hence they did “see" the accident and can claim compensation for being psychologically harmed.

Moreover, the judgement in Hambrook V Stokes Brothers 1925 [13] is worthy of note. In Hambrook, the accident occurred out of sight of the claimant who was immediately informed of her child’s injury as a result of the accident. In this case the House of Lords found that an alternative approach to the conventional one adopted in secondary victim cases was feasible, as the claimant had only been told of the abuse committed in that case, they had not witnessed it or its immediate outcome. Following the Hambrook case, Maria and Soraya I would advise them to argue that even though they had not been informed by Mike about the accident until several hours subsequent, they were still aware of what happened as they saw the accident on the evening news on the television.

However, in the Alcock case it was held that witnessing the event on television was not sufficient to create the necessary degree of proximity. Therefore, it must be pointed out here that in the face of Lord Keith’s judgement in this case it will still be difficult for Maria and Soraya to succeed as he unequivocally stated that the broadcasting code of ethics prevents television channels from showing the suffering of recognizable individuals in support of his aforementioned argument. Lord Wilberforce in the McLoughlin case stated that viewing or hearing of the incident is not a sufficient fulfilment in order to develop duty of care. Therefore, it can be argued that Maria and Soraya will succeed as secondary victims, particularly because they witnessed the accident on the evening news, which was not a live broadcast that again would subscribe to the broadcasting code of ethics mentioned by Lord Keith. Thus, they will be excluded as witness of the accident.

In light of the aforementioned argument, it is submitted that Mike is likely to recover general damages for pain, suffering and loss of amenities of life. He may also recover damages for the nervous shock as he also suffered psychiatric injury as a result of breach of duty on part of the Police. With regards to Maria and Soraya, I would advise to argue along the lines of Hambrook but in light of Lord Keith’s speech in Alcock it is not likely that they will succeed as secondary victims for want of fulfilling the proximity of perception requirement of being a secondary victim with regards to psychiatric injury. However, they may recover damages for the loss of Lewis’ life as he was the sole brad winner in their house.