Law of Tort Assignment In the early case of Chadwick v British Railways Board
Law of Tort Assignment
In the early case of Chadwick v British Railways Board , the claimant lived nearby the incident of a train crash accident. He later crawled through the wreck to assist the survivors throughout the night. He later suffered psychiatric illness and died six months later. The court in this case held that the claimant was entitled to recover the damages as the incident was a horrifying accident and it was foreseeable that the claimant would suffer psychiatric illness. Later in the year 1995, there was also a case explained about the damages for the psychiatric illness that granted to the secondary victim, namely, Page v Smith . In this case, the defendant crashed into the car of the claimant while both of them were driving. Even though the claimant did not suffer physical injuries when the crash occurred, but the claimant later felt exhausted after several hours. The claimant also suffered Chronic Fatigue Syndrome (CFS) for a few years after the accident. In this case, the court held that the claimant was entitled to the damage. The reason of the judgment is that the defendant owed a duty of care to the claimant as the defendant could reasonably foreseeable that the claimant will suffer some harm due to his own negligence regardless the harm itself is physical or psychiatric.
In 2000, the case of Greatorex v Greatorex also explained about the grant of damages for psychiatric illness for the secondary victim. In this case, the son caused a road accident due to his own negligent driving. The father who was a rescuer fire-officer suffered psychiatric injury due to the rescue work that involved his son. The court in this case applied the principle set out by Lord Oliver in the case of Alcock v Chief Constable of South Yorkshire which states if the primary victim suffers injury as a result of his own carelessness, then he will not own a duty of care to the psychiatric illness that suffered by the third party. Subsequently, the court held that the claimant who was a secondary victim did not entitle for the damages. Later in the year of 2002, the case of Walters v North Glamorgan NHS Trust demonstrated that the claimant who was a secondary victim had claimed for psychiatric illness successfully. In this case, the hospital failed to diagnose that the baby son of claimant had hepatitis at the early stage. As a result, the baby suffered an epileptic fit and it was witnessed by the claimant who is the mother of the baby. The baby’s health later deteriorated for 36 hours due to the brain damage and eventually died in the arms of the claimant. The court held in favour of the claimant in this case. It means that the claimant could recover damages as a secondary victim because the mother did suffer nervous shock due to the witness of her baby’s death and the 36 hour period was also a traumatic and horrifying event to her.
However, a contrast judgment had been made in the case of Taylor v A Novo (UK) Ltd. In the case of Taylor v A Novo (UK) Ltd , the mother of the claimant (the mother) was injured due to the negligence of an employee at her workplace. Originally, the mother had made a good recovery. However, the mother later collapsed suddenly and died at home three weeks later. The claimant suffered post-traumatic stress disorder after witnessing the death of her mother. The claimant later claimed damages from her mother’s former employer. In this case, Lord Dyson MR held that the claimant cannot claim damages from her mother’s former employer as she was not present at the time when the accident happened at her mother’s workplace and she also did not involve in its immediate aftermath. Therefore, Lord Dyson MR opined that the claimant should not be granted damages as there was a lack of proximity. The judge in this case opined that if they give judgment in favour of the claimant then the claimant may recover the damages years after the particular negligent act.
The case of Wild and Another v Southend University Hospital NHS Foundation Trust is the first case to apply the principle in Taylor v A Novo which requires that the secondary victim must present when the first victim suffered injuries due to the negligent act or omission and it must be a horrifying event. In this case, the claimant’s unborn son died in the womb due to the negligence of the hospital as the hospital did not record the baby’s growth rate at the antenatal appointments. The claimant later suffered psychiatric injury due to the shock when the hospital discovered that the baby died in the womb. The court applied the principle laid down in the case of Taylor v A Novo and held in favour of the defendant as it was inadequate to say that the claimant has been witness the manifestation of the consequence of the defendant’s negligence and the claimant did not witness a horrific event that leads to death or a serious injury. In a recent case of Liverpool Women’s Hospital NHS Foundation Trust v Ronayne , Mr Ronayne’s wife had undergone an operation. After a few days, she became unwell and was admitted to the hospital. Mr Ronayne suffered nervous shock when he saw his wife connected to some drips and monitors. He later also suffered nervous shock when he saw the arms, legs and face of his wife were very swollen. The court held in favour of the hospital as the event was not sudden because it was a series of events that accumulate gradual assaults to the mind of Mr Ronayne and it was not a sudden event to see his wife connected to medical equipment.
In the same year, Shorter v Surrey and Sussex Healthcare NHS Trust also demonstrated the issue on damages that grated to the secondary victim for psychiatric illness. In this case, the deceased died as a result of the negligence of the hospital. The claimant who was the deceased’s sister brought a claim against the defendant for the nervous shock as a secondary victim. The court held that the claimant was not entitled for the damages. The court later explained its judgement by saying that the event in this case was not a horrifying event and it also was not a sudden and unexpected event as there was a series of different events that accumulate assaults to the mind of the claimant and eventually caused her to suffer psychiatric illness. Last year, there was also a case on the damages that granted to the secondary victim for psychiatric illness by the court, namely, Re (a minor by her mother and litigation friend) and others v Calderdale ; Huddersfield NHS Foundation Trust . This was the first case that extends the protection to the psychiatric illness suffered by the secondary victim in a clinical negligence case. In this case, the baby was born at the defendant NHS Foundation Trust and the baby suffered brain injury during the process of birth due to the negligence by the doctor. Both the mother and grandmother of the baby suffered psychiatric illness after witnessing that the baby was born in a poor condition. The court in this case categorised the mother of the baby as a primary victim and held that she was entitled to the damages. The court later categorised the grandmother of the baby as secondary victim and held that she was also entitled for the damages as it was a horrifying and sudden event.