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Page 1: Nervous Shock: Wider Still and Wider?

Editorial Committee of the Cambridge Law Journal

Nervous Shock: Wider Still and Wider?Author(s): Steve HedleySource: The Cambridge Law Journal, Vol. 56, No. 2 (Jul., 1997), pp. 254-257Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4508334 .

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Page 2: Nervous Shock: Wider Still and Wider?

254 The Cambridge Law Journal [1997]

nervous shock: wider still and wider?

A clutch of recent cases has again extended the bounds of nervous

shock. Not every novel claim succeeds; but the general outward trend

is unmistakable, and the law on shock is slowly being assimilated with

the law on injury generally. In Page v. Smith [1995] A.C. 155, the

House of Lords required that we distinguish between "primary victims"

who were themselves physically endangered by the defendants' actions, and "secondary victims" who were endangered only in the sense that

they were exposed to the risk of shock. The former category can

recover merely on proof of breach of duty, whereas the latter are

subjected to artificially high requirements of foresight, in particular that they get a good view of the "shocking" event, and that the event

consist of injury to a close friend or relative.

Primary victims

Where the defendant has created a physical danger, the court must

now determine the extent of the "zone of danger" within which

physical danger is foreseeable. Any plaintiff within the zone of danger who is shocked may recover, for if injury is foreseeable it makes no

difference whether it ultimately manifests itself as physical injury or as

shock. So in Hegarty v. E.E. Caledonia Ltd. [1996] 1 Lloyd's Rep. 413

the question was whether the plaintiff, who witnessed the Piper Alpha

rig fire at close quarters, was within the zone of danger. The Court of

Appeal concluded that he was not: he was over 100 metres from the

fire-ball, and was not in personal danger. His fear was genuine enough, but unreasonable; and so he was denied recovery.

Primary victims: rescuers

Where the plaintiff, while not initially within the danger zone, rushes

in to save those who are, case law on physical injury has often included the plaintiff within the scope of those owed a duty. Danger invites

rescue, and so if danger is foreseeable then so is rescue. How this

applies to nervous shock is not altogether clear, but a majority at least

of the Court of Appeal now consider that it applies with the rigour of

a rule of law: if physical injury to the victims was foreseeable, then rescue is also foreseeable, and accordingly a rescuer is automatically within the category of primary victim (Frost v. Chief Constable of South Yorkshire [1997] 1 All E.R. 540). This bold argument did not convince Judge L.J., who dissented, arguing that there was no such rule. Rescuers might be primary victims or not, depending on what the facts disclosed; in Frost he thought there was no satisfactory factual basis for the claim.

This still leaves the question of who is a "rescuer", the question

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Page 5: Nervous Shock: Wider Still and Wider?

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