Hypothetical Tort Case Using Case Law

The nervous and psychiatric shock that can be caused by being within the range of an accident that has happened to family members can be great indeed, and thus the law has produced certain policy limitations to allow claimants just and fair compensation from the appropriate parties.

A primary victim is someone who is within the range of foreseeable reasonable injury, there is no policy control mechanism and they can claim psychiatric injury as in Page v Smith.

Secondary victims do not fear for their own personal physical safety, therefore policy control mechanisms are in place to distinguish from those who are seen as unjustly attempting a claim.

One of these policies is the proximity in terms of time and space in that the claimant must have witnessed the immediate aftermath, as in the case of Alcock; where friends and family of the Hillsborough disaster witnessed horrifying deaths on the television, this was not reasonably foreseeable as the proximity was too great. However the proximity may also be in terms of a close relationship between a mother and her child as in the case of McLoughlin v O’Brian (1982); where a mother claimed she had suffered psychiatric injury after the death of her child and serious other injuries to other family members.

The House of Lords held that the driver of the car did owe a duty of care to the mother and her injuries, even though they did not occur at the time of the accident and she was not a witness to the incident. The psychiatric injury should also be recognisable as in type and must be reasonably foreseeable; the case of Bourhill v Young has shown how the courts will not permit compensation to be received unreasonably, as the claimant attempted to receive compensation from a motorcyclist after he exposed her to the “horrors of the road”. The judge decided that as each motorist does owe each pedestrian a duty of care they should also be expected to have the same fortitude as anyone else in dealing with the day to day horrors of the roads.

Mr Grant has been injured and is therefore owed a duty of care by the lorry driver Fred Grimshaw who is also responsible for any psychiatric injury that he may suffer as a result of the accident. The twin brothers Simon and John are also most certainly to be compensated, as Simon is in extremely close proximity both in relationship status and space to his twin brother John who is injured by the accident. The case of Page v Smith is relevant here in showing how the House of Lords realise that some injury may occur from accidents that may not cause any injury whatsoever, as with Simon who, isn’t actually injured but was in danger of being so.