Commercial Law Exam preparation essays.
Delict- Nervous Shock.
Delict is defined as an obligation of one person to compensate another person for any losses
that person has suffered as a result of harm caused by the first person (McCarthy, 2015). The
law of delict details when a person will be legally responsible for a wrong they have
committed, whether intentionally or accidentally. Furthermore, delict regulates the
relationship between individuals, often awarding damages (financial compensation) to make
up for a loss suffered by one individual as a result of the negligence of another (Stirling,
2016).
Gayle Force’s employers (the defendant) may be liable to the pursuer, Rory, but only if they
have breached the duty of care owed to him.
Rory is suffering from nervous shock due to witnessing the death of one of his workmates
when they were repairing the bridge. It is foreseeable that an eye witness/ bystander may
suffer nervous shock after witnessing a death or fatal accident. However, the law has not been
generous with such claims and have put strict limits on the situations where a duty of care can
be said to prevent nervous shock (McLaren and Bisacre, 2016).
Psychiatric loss will give rise to recovery for primary victims, and for secondary victims. A
primary victim is defined as someone who was at risk of physical injury as a result of the
breach, whether they actually suffered physical injury or not. A primary victim is always
entitled to claim for psychiatric harm.
On the other hand, the position of a secondary victim is more complex. Secondary victims are
those who suffer psychiatric harm as a result of witnessing another person suffering injury in
an accident caused through negligence. The rules on secondary victims were first established
in Bourhill V Young (1942) in which the pursuer (Bourhill) was categorised as a secondary
victim, having been at no risk of physical harm herself, as she was 50feet away from the
collision and did not actually see the death of Young. Bourhill was not in the ambit of this
duty and therefore Young’s executors were not liable for her nervous shock.
Rory’s employers do not owe a duty of care to avoid causing nervous shock to Rory, who
was a bystander witness. This can relate to novus actus interveniens where the defendant is
not liable for the loss precipitated or aggravated by a delictual event.
Psychiatric loss will give rise to recovery for primary victims, and for secondary victims only
where they satisfy the test set out in Alcock v Chief Constable of South Yorkshire Police
1992. The case arose from the tragedy at Hillsborough football stadium in which dozens of
supporters were killed or injured in a crush caused by overcrowding. Friends and relatives of
the victims sought damages for psychiatric harm and nervous shock caused by viewing
television footage of the incident. As they were not present at the event, their claims failed.
From then, it was held that, before a secondary victim would be entitled to recover damages
of nervous shock, certain criteria must be fulfilled. For instance, there must have been a close
tie of love and affection between the primary and secondary victims, the secondary victim
must have been present at the accident or its immediate aftermath and the secondary victim
must have had direct insight/observation of the accident with his unaided senses. From the
authority given in this case, although Rory was present at the incident he also was not
proximate to the defender (Gayle), and so no duty of care could arise.
, If the pursuer who is suffering from nervous shock was also at risk of physical harm as a
result of the defender’s carelessness, the claim may succeed. Since the employers were
negligent in the sense that there were insufficient safety precautions and equipment and it has
been said that Rory was helping Gayle to repair damage to the bridge, Rory may be entitled
to claim from suffering from mental health problems, his psychiatric treatment and any loss
of earnings if is unable to return to work, as a result of the delictual event. He may be entitled
to damages for solatium. However, he would need to succeed in the three tests, outlined in
the Alcock v Chief Constable South Yorkshire Police (1991) case and therefore the claim
may be unlikely to succeed. Although he passed two of the criteria’s- the secondary victim
must have been present at the accident or its immediate aftermath and he had direct
perception of the action he however, was not a close tie of love and affection between the
primary and secondary victim and so failed to claim any liability.
In the case of McFarlane v E Caledonia 1994 the pursuer was not in any danger of fears for
his own safety and so was not within the range of foreseeability and therefore no duty of care
was owed to him. The claim failed the close ties of affection test. Also in the case of
Robertson v Forth Road Bridge Joint Board 1994 two workers suffered psychiatric trauma
when they witnessed the death of a fellow worker which was caused by the negligence of
their mutual employer. It was held that no duty of care was owed to the two workers in this
instance as the relationship between them and the worker who was killed was not sufficiently
close for the nervous shock to be foreseeable. This case also failed the close ties of affection
test. As Rory was only a workmate no duty of care was owed to him because the relationship
between Gayle and Rory was not sufficiently close for the nervous shock to be foreseeable.
To conclude, Rory has suffered from nervous shock as a result of a delictual event that
included the death of his workmate. As a result, he is trying to claim for damages against the
employer. From the authority given in the Alcock v Chief Constable of South Yorkshire 1991
case, he will not have a have claim against the employer as he was not proximate to the
defender and failed the close ties of affection test. However, sometimes these cases are
decided in terms of alternative dispute resolution and are settled. Nevertheless, if Rory does
not want to cooperate with the other side he can take the case further to the Sheriff Court in
the Scottish Civil Court System where a legally qualified Sheriff will judge the civil case and
provide a wide exercise of jurisdiction to support Rory’s claim.
B.
The person who has suffered harm at the hands of another can seek a legal remedy for his
loss. To be successful in an action for delict, the pursuer must show that a duty of care is
owed, that it has been breached, and that this breach caused the loss or damage. Duty of care
has a limited ambit, extending only to those who could reasonably be expected to suffer
harm, not to the world in general.
Looking at the case of if Rory had been Gayle’s husband as opposed to her workmate he may
succeed in claiming damages against the employer due to his suffering of nervous shock from
the delictual event. A duty of care has been breached as the employer had the responsibility
to take care in their acts (and omissions to act) so as to avoid causing harm to others.
However, they failed to provide safety precautions and equipment and as a result Gayle Force
died. The defender breached this duty of care by falling below the standard of care exercised
by the reasonable man. The employers have failed to take the requisite amount of care and is
therefore negligent. As a result, the pursuer (Rory) has suffered a loss of the death of his wife.
Mentioned before, Rory is a secondary victim and witnessed the death of Gayle caused
Delict- Nervous Shock.
Delict is defined as an obligation of one person to compensate another person for any losses
that person has suffered as a result of harm caused by the first person (McCarthy, 2015). The
law of delict details when a person will be legally responsible for a wrong they have
committed, whether intentionally or accidentally. Furthermore, delict regulates the
relationship between individuals, often awarding damages (financial compensation) to make
up for a loss suffered by one individual as a result of the negligence of another (Stirling,
2016).
Gayle Force’s employers (the defendant) may be liable to the pursuer, Rory, but only if they
have breached the duty of care owed to him.
Rory is suffering from nervous shock due to witnessing the death of one of his workmates
when they were repairing the bridge. It is foreseeable that an eye witness/ bystander may
suffer nervous shock after witnessing a death or fatal accident. However, the law has not been
generous with such claims and have put strict limits on the situations where a duty of care can
be said to prevent nervous shock (McLaren and Bisacre, 2016).
Psychiatric loss will give rise to recovery for primary victims, and for secondary victims. A
primary victim is defined as someone who was at risk of physical injury as a result of the
breach, whether they actually suffered physical injury or not. A primary victim is always
entitled to claim for psychiatric harm.
On the other hand, the position of a secondary victim is more complex. Secondary victims are
those who suffer psychiatric harm as a result of witnessing another person suffering injury in
an accident caused through negligence. The rules on secondary victims were first established
in Bourhill V Young (1942) in which the pursuer (Bourhill) was categorised as a secondary
victim, having been at no risk of physical harm herself, as she was 50feet away from the
collision and did not actually see the death of Young. Bourhill was not in the ambit of this
duty and therefore Young’s executors were not liable for her nervous shock.
Rory’s employers do not owe a duty of care to avoid causing nervous shock to Rory, who
was a bystander witness. This can relate to novus actus interveniens where the defendant is
not liable for the loss precipitated or aggravated by a delictual event.
Psychiatric loss will give rise to recovery for primary victims, and for secondary victims only
where they satisfy the test set out in Alcock v Chief Constable of South Yorkshire Police
1992. The case arose from the tragedy at Hillsborough football stadium in which dozens of
supporters were killed or injured in a crush caused by overcrowding. Friends and relatives of
the victims sought damages for psychiatric harm and nervous shock caused by viewing
television footage of the incident. As they were not present at the event, their claims failed.
From then, it was held that, before a secondary victim would be entitled to recover damages
of nervous shock, certain criteria must be fulfilled. For instance, there must have been a close
tie of love and affection between the primary and secondary victims, the secondary victim
must have been present at the accident or its immediate aftermath and the secondary victim
must have had direct insight/observation of the accident with his unaided senses. From the
authority given in this case, although Rory was present at the incident he also was not
proximate to the defender (Gayle), and so no duty of care could arise.
, If the pursuer who is suffering from nervous shock was also at risk of physical harm as a
result of the defender’s carelessness, the claim may succeed. Since the employers were
negligent in the sense that there were insufficient safety precautions and equipment and it has
been said that Rory was helping Gayle to repair damage to the bridge, Rory may be entitled
to claim from suffering from mental health problems, his psychiatric treatment and any loss
of earnings if is unable to return to work, as a result of the delictual event. He may be entitled
to damages for solatium. However, he would need to succeed in the three tests, outlined in
the Alcock v Chief Constable South Yorkshire Police (1991) case and therefore the claim
may be unlikely to succeed. Although he passed two of the criteria’s- the secondary victim
must have been present at the accident or its immediate aftermath and he had direct
perception of the action he however, was not a close tie of love and affection between the
primary and secondary victim and so failed to claim any liability.
In the case of McFarlane v E Caledonia 1994 the pursuer was not in any danger of fears for
his own safety and so was not within the range of foreseeability and therefore no duty of care
was owed to him. The claim failed the close ties of affection test. Also in the case of
Robertson v Forth Road Bridge Joint Board 1994 two workers suffered psychiatric trauma
when they witnessed the death of a fellow worker which was caused by the negligence of
their mutual employer. It was held that no duty of care was owed to the two workers in this
instance as the relationship between them and the worker who was killed was not sufficiently
close for the nervous shock to be foreseeable. This case also failed the close ties of affection
test. As Rory was only a workmate no duty of care was owed to him because the relationship
between Gayle and Rory was not sufficiently close for the nervous shock to be foreseeable.
To conclude, Rory has suffered from nervous shock as a result of a delictual event that
included the death of his workmate. As a result, he is trying to claim for damages against the
employer. From the authority given in the Alcock v Chief Constable of South Yorkshire 1991
case, he will not have a have claim against the employer as he was not proximate to the
defender and failed the close ties of affection test. However, sometimes these cases are
decided in terms of alternative dispute resolution and are settled. Nevertheless, if Rory does
not want to cooperate with the other side he can take the case further to the Sheriff Court in
the Scottish Civil Court System where a legally qualified Sheriff will judge the civil case and
provide a wide exercise of jurisdiction to support Rory’s claim.
B.
The person who has suffered harm at the hands of another can seek a legal remedy for his
loss. To be successful in an action for delict, the pursuer must show that a duty of care is
owed, that it has been breached, and that this breach caused the loss or damage. Duty of care
has a limited ambit, extending only to those who could reasonably be expected to suffer
harm, not to the world in general.
Looking at the case of if Rory had been Gayle’s husband as opposed to her workmate he may
succeed in claiming damages against the employer due to his suffering of nervous shock from
the delictual event. A duty of care has been breached as the employer had the responsibility
to take care in their acts (and omissions to act) so as to avoid causing harm to others.
However, they failed to provide safety precautions and equipment and as a result Gayle Force
died. The defender breached this duty of care by falling below the standard of care exercised
by the reasonable man. The employers have failed to take the requisite amount of care and is
therefore negligent. As a result, the pursuer (Rory) has suffered a loss of the death of his wife.
Mentioned before, Rory is a secondary victim and witnessed the death of Gayle caused
