obtainable to the aggrieved individual in the civil legislation and courts. Under the Law of Torts,
obligations are allocated to people in diverse states of affairs, and accountability for neglectful
or unlawful deed is compulsory by legislation. For example, a duty of care for the users on road
is forced by legislation on all of the drivers. A resident of a home is obligated to have a duty of
care to the guests and visitors who come to his home or its premises. Unlike the contract law,
this is dissimilar from compulsions in an indenture where the parties associated with the duty
of care willingly are in an agreement to be bound. The property owner or the car driver in the
cases mentioned above cannot break away from their legal responsibilities for contravene of their
duties, although they may be ready to cover for the losses held in accidents through insurance.
Where people are insured against any accident or mishap, the insurance company as a rule steps
down into the shoes of the insured party and if there is any form of a legal action the insurance
company tries to settle any claims by the claimant.
The most significant function of the Law of Torts is to make accessible the remedies for the
claiming party (or parties) that have gone through destruction, thrashing, or an infraction of
constitutional rights and civil liberties (turner and Martin, 2010). The damage engrosses corporal
injuries to personnel or property, smashing up of persons’ reputations or financial interests, and
interference with persons’ use and enjoyment of their land. Nevertheless, just id a party suffer
from any loss this does not necessarily ensures that the legislation will make available a remedy;
a claimant here must prove that the individual committing the wrong doings owed him a duty
of care and that the tort is responsible for causing the losses. This law envelops a wide range of
dissimilar civil torts including inattention, intruding, annoyance, and denigration of a party. Each
tort engrosses its own rules and guidelines about legal accountability but most torts necessitate
a component of blameworthiness, which is meant by the fact that legal responsibility is only
forced on an individual who deliberately or inattentively takes actions or fails to take appropriate
actions in a particular circumstance.
The Tort of Negligence
Negligence is an inevitable variety of tort which includes an extensive range of circumstances
where individual or a party is harmed by others’ negligence. For a victim to ask for necessary
actions taken by court, he first of all has to prove following three rudiments:
1. The defendant is obligated a duty of care to the claimant.
2. The defendant has violated a duty of care.
3. Violation of the duty of care has caused realistic predictable damage to the claimant.
Duty of Care
Each citizen owes a duty of care for the fellow citizens. For example road users owe duty f care
for other road users; a property owner owes a duty of care for the visitors at his property and
his neighbours too. There are few moral reasons behind imposing the duty of care like sense of
care and responsibility for each other and doing no harm to each other and their properties are
the chief moral reasons. Imposing such duties will encourage people to take appropriate actions
in certain circumstances too. Due to expansion of population and duties of care, the legislation
became worried of the uncontrollable and unmanageable amount of tort of negligence. For this
view, there is a three-stage test to determine whether the duty of care exists or not.
Test for establishing whether a duty of care exists
Consecutively for a duty of care to subsist, the damage caused to the claimant by the defendant
must have been practically anticipated at the time the defendant was neglectful. Also, the
claimant must prove the proximity of defendant with him which means that he has to establish
any personal relationship, duration of events and the evidence of tampered goods (Horsey and
Rackley, 2010).
When to impose a duty of care?
Even if the damage is convincingly projected and there is propinquity between the claimant and
the defendant, the legislation may still discover that there is no duty of care if it is not reasonable,
just, or logical to impress a sense of duty on the defendant. This is by and large a subject of
civic guidelines, and is where the courts have to take hardnosed contemplations into account and
choose if it is in the community awareness to enforce a duty of care. This final factor covers a
range of issues such as if the obligation of a duty of care would avoid the accused from carrying
out his work properly, or if the victim or claimant is supporting in the expenses of an offense.
The courts are every now and then unwilling to enlarge the duty of care, where to do so might
give confidence to a variety of similar claims. This is identified as the floodgates disagreements
or disputes.
Psychiatric Injury or Nervous Shock
Psychiatric damage, which is every now and then referred to as nervous alarm, is a form of
personal grievances but it is more intricate to allege for that physical injury. There must be
confirmation that the plaintiff has endured solemn psychiatric infirmities such as post-traumatic
stress disorder. Common anguish, nervousness, or foreboding, devoid of any physical injury, is
insufficient as it does not result to a psychiatric disease. According to Cooke (2010), the courts
have at all times been vigilant in recognizing a duty of care in relation to psychiatric damage, for
large number of grounds. It is more complicated to make a diagnosis of psychiatric grievance
than physical damage and, consequently, it is easier for the claimant to make forged argues. It
may result into opening of the floodgates of lawsuits and legal actions with a sprint of claims
being made by claimant thereby making psychiatric injuries very difficult to enumerate in
expressions of recompense. We have primary and secondary victims in psychiatric injury:
1. Primary Victim: A primary victim is a person who has experienced the actual threat of
physical harm or rationally alleged himself to be hurt, as a consequence of the negligent
happening.
2. Secondary Victim: A secondary victim is that individual who is suffering from a
psychiatric infirmity as an outcome of on looking a mishap or its instantaneous aftermath.
Claims for psychiatric injury by primary and secondary victims
When we talk about secondary victims, they themselves are not in any direct danger but suffer
shock reacting to the after effects of any mishappening or just by watching a person’s injuries
who has met with an accident.
It is significant to guarantee that the duty of care, forced on defendants, for any type of mental
hurt caused to secondary victims is constrained inside rational limitations. There are authorized
boundaries on the declarations by secondary victims.
In the first case, the people were the primary victims as they died in the accident and a duty of
care was owed to the rescuer who suffered mental trauma as a consequence of helping out the
sufferers in that horrifying accident.
Conversely, in the second case of White v Chief Constable South Yorkshire (1999) the House of
Lords cleared that the rescuer could only be classed as a primary victim if he was in continuous
threat of bodily wounding but the saviors in White were not at hazardous conditions and were
unable to claim as primary victims.
The claimant (secondary victim himself or a person related in case secondary victim is unwell)
must prove all of the following crucial necessities:
• There is a close tie of love and friendliness with the primary victim involved in the
accident so that it is convincingly predictable that the claimant will bear psychiatric
illness. (In this case, love and care is presumed to exist between spouses, and parents and
children, but other claimants must prove that such a relationship exists between them.)
• The secondary victim must be either present at the sight of the accident, see the building
up of the accident, or its instantaneous consequences. The secondary victim must have
watched or attended to the misfortune or the undeviating consequence with his own
senses without any help. It will not be entertained if the claimant has heard about the
accident on radio or television or by any third person.
• A medically-recognized psychiatric illness is suffered by the claimant as a result of the
incident.
Therefore, it is sometimes easy but most of the time very difficult to prove the above
requirements for any claim by the secondary victim. Sometimes, even the psychiatric injuries are
very difficult to surface immediately after the accident and may take a considerable amount of
time to show which will be not entertained by the court then.
Reference List
• Cooke (2010) Law of Torts, 9th ed. Pearson, Part 2.
• Horsey and Rackley (2010) Tort Law, Oxford University Press, Part 2.
• Turner and Martin (2010), Unlocking Torts, 9th ed. Hodder Education, Chapters 3, 4, and
5.
