Estado de resultados del 1 de enero al 31 de marzo de 2022 Ventas totales

The policy reasons considered as relevant but rejected by the two judges who considered them in the House of Lords in McLoughlin, are familiar arguments against extending the scope of duty of care in relation to nervous shock.

However, the fears are often over-stated. Psychiatric illnesses are not easy to simulate now that there have been considerable advances in medical science and knowledge of the symptoms of these conditions. It is unlikely that there will be large numbers of claims by people who were not present at the scene of accidents. Awards of damages for nervous shock have remained relatively low, with the exception of the award to a fireman in the King’s Cross fire, a rescue case, discussed above (Hale v London Underground (1992)), where the claimant was forced to give up work because of a psychiatric illness

Indeed, in the Ravenscroft case, expert evidence was adduced to the effect that only a very small percentage of the population will suffer from an extreme grief reaction. The argument that judges cannot and should not change the law is somewhat naive, and in any event this kind of case is best left to piecemeal judicial development. The Law Commission has criticised the contraction of liability for psychiatric injury. It recommends extending the categories of people able to claim (see 4.7).

4.4.1 Restrictions on the scope of the duty

When the House of Lords gave further detailed consideration to the scope of liability for nervous shock in Alcock v Chief Constable of South Yorkshire (1991),

certain restrictions were introduced, and some of the unanswered questions in McLoughlin v O’Brian were clarified.

In Alcock, the House of Lords considered 10 claims for nervous shock by relatives of the victims of the Hillsborough football stadium disaster. The police had admitted negligence in allowing too many people into the stadium, as a result of which 95 people had died and 400 needed to be treated in hospital. The tragedy had been broadcast on television as it was happening.

The claims involved clarification of a number of points which included the following:

• could people other than parents, children and spouses claim for nervous shock?;

• how far did the ‘immediate aftermath’ extend?;

• could people who witnessed on television events as they happened to their loved-ones succeed in claims for nervous shock?

In rejecting all 10 claims, the House of Lords held that the three relevant factors in considering whether a duty of care exists in a particular claim for nervous shock are:

• the proximity of the claimant in time and space to the scene of the accident;

• the relationship between the accident victim and the sufferer;

• the means by which the shock has been caused;

The mere fact that nervous shock was foreseeable could not in itself give rise to a duty of care. Lord Wilberforce, in the spirit of the two-stage test in Anns, had expressed this view in McLoughlin v O’Brian, taking the line that policy required claims to be limited by the courts for fear of a flood of claims, and it was this view which the House of Lords chose to follow in Alcock:

• the claimant can prove a close tie with the victim, witnessed the events on television, and in breach of the broadcasting rules, saw close up shots of a loved-one. The action would lie against the broadcasting company (a secondary victim);

• the claimant can prove a close tie with the victim, and witnessed a cataclysmic event on television (a secondary victim). (This category is less clear than the previous one.)

4.4.2 Proximity

The concept of proximity is of particular importance in claims for psychiatric injury. It has led to the idea of ‘primary’ and ‘secondary’ victims (see. 4.6.1).

In Alcock, not one of the claimants had actually witnessed the events happening to a loved one at very close quarters. Those who were present at the ground were too far from the scene to observe the faces of the victims. One claimant who had identified his brother eight hours later in the mortuary fell outside the ‘immediate aftermath’, and those who had seen the events on television would not have seen details of faces of individuals because broadcasting rules had been observed.

There is continued emphasis on the need for a secondary victim to be present at the scene of the accident or to arrive in the immediate aftermath. In Tranmore v TE Scudder Ltd (1998), a father who arrived at the place where his son had been killed two hours earlier, when the building in which he had been working collapsed, did not succeed in his claim for damages for psychiatric injury. He was beyond the ‘immediate aftermath’ of the accident. The Court of Appeal referred to the Law Commission Report No 249, Liability for Psychiatric Illness (see below, 4.6), in which the Commission had recommended the creation of a new statutory duty of care in cases where the claimant had a close tie of love and affection with an accident victim. Although such a change in the law, if accepted by Parliament, would abolish the ‘immediate aftermath’

restriction, under the existing law the claimant could not bring himself within the ‘immediate aftermath’ and the claim failed for lack of proximity.

4.4.3 The close tie of love and affection

None of the claimants in Alcock who might otherwise have qualified, including brothers and brothers-in-law, had proved a close tie of love and affection with the victim, but that did not mean that in future cases it would not be possible to admit to the class of possible claimants for nervous shock people who are not spouses, parents or children of the victims. This represents the opportunity to expand the class of people who can claim for nervous shock. Rescuers and other people directly involved in the events might be included. However, in future, it would be wise to plead a close tie of love and affection when a claim is initiated. Those claimants who had lost a son and a fiancé, would probably have succeeded on the closeness of their relationships with the victims, but were too far away from the events to succeed.

4.4.4 The means by which the shock was sustained

As to the means by which the shock was caused, those people who actually witness events at close quarters are within the scope of the duty of care. The events must be witnessed through the claimant’s own sight or hearing either as they happen or in the immediate aftermath, which must be very soon after the events. Eight hours was too long in Alcock. Their Lordships did not absolutely rule out the possibility of claims based on observation of the events on simultaneous television. If, for example, the broadcasting rules were

broken and details of faces of individuals were shown, there might be a claim available against the broadcasting company, as a novus actus interveniens.

There might also be some circumstances when a claim would be available against the person responsible for tragedy itself, for example, cases like that involving the destruction of the US space shuttle.