The purpose of this paper is to investigate the nature and circumstances under which secondary victims of traumatic incidents or victims of negligence can lay claim for compensation. This paper deals with a very important aspect of tort law which is negligently inflicted psychiatric injury. This is most common in victims of post traumatic stress disorder who witnessed an extremely traumatic incident. The paper also examines the liabilities which would follow from such a case, especially if the guilty person is employed in the service of the company i. e. employment liability.
Civil litigation involving tort law happens that when an injured person provides a firm evidence that another party acted with negligence in order to cause an injury. The plaintiffs will be awarded damages for the harm caused to them. Proving beyond reasonable doubt a case of negligence potentially entities the injured people to compensation for any form of harm caused to the body, financial situation, mental illness, property and intimate relationships.
Cases of negligence and psychiatric injury, such as the one which has been discussed for the purpose of this paper, are considered to be fact specific. No specific requirements or fulfillment of previously laid down requirements had been described which explains when the law requires a party to compensate another party for losses which resulted from accidental injury. Resulting damages have to be proven for a party to recover compensation during a negligence suit; the extent and the nature of the damages are not the central concerns of cases of negligence. Negligence suits are historically analyzed in stages; these stages are referred as elements. The important concept of negligence cases is the plaintiff should prove all the important elements and failure to prove even one element will result in the plaintiff losing the tort claim.
A case in point is that the plane crash-landed and caused several casualties which were caused by a drunken pilot. The crash can, therefore, be attributed to an error on the pilot’s end. This is the first most important point, which would lay the foundation of the case. The accident occurred due an error caused by the driver. The law of the pilots to engage in operating a plane in a drunken state means that they were negligent of their duty to ensure the safety of the passengers of the plane. Any pilot, who engages in such operations is liable to have his license revoked and be banned from flying a plane for the rest of his life.
Analysis of plaintiff’s claim: The plaintiffs Eddy, Joy, Maka, and Damian can bring negligence claims with allegations that they were injured and were caused emotional distress. They can also prove that they suffered a loss of financial situation due to the carelessness of the drunken pilot. In order to be entitled, the plaintiffs should only demonstrate that the pilot was drunk, and the accident was a result of his incompetence which could have been avoided had another competent pilot been flying the plane. (Cunningham, 1992). In the case, Eddy and Maka were primary victims while Joy and Damian were secondary victims.
The plaintiffs in this case are intending to filesuit for damages or compensation for the loss and emotional and physical distress that they have suffered from as a result of a plane crash. In the case of negligent infliction of emotional distress, there is a need to differentiate between two types of victims of emotional distress, namely direct victims and bystanders. In this case, passengers aboard the plane will be considered as direct victims which means that Eddy would be a direct victim because he was aboard the airplane. Bystanders, on the other hand, will be the secondary plaintiffs alleging emotional distress resulting from watching the accident occur and harm to the direct victims which means that Damian, Joy and Maka are bystanders.
Analysis of case and individual plaintiffs: In the awarding of damages for psychiatric injuries negligently inflicted, the law adopts restrictive approach. The courts adhere to Caparo test that imposes the duty of care. There are many requirements imposed by courts, which claimants must satisfy to establish liability for the psychiatric injuries. There has to be the evidence of psychiatric injury first. Grief, sorrow, fear or panic does not amount to psychiatric injury.
Eddy: As a passenger in the ill-fated plane and having witnessed the horror and lost his team mates suffered psychiatric injury. This is because he became morbidly depressed as the primary victim. Although Eddy was not physically injured during the accident, it inflicted chronic and permanent damage to him to the extent that he no longer plays football which was a source of his livelihood. He is entitled to damage resulting from nervous shock necessitated by the breach of duty by the defendant. This was captured in Page v Smith  1 AC 155 House of Lords. Eddy, as a passenger was owed duty of care by the defendant.
Alcock & ors v Chief Constable of South Yorkshire  AC 310 House of Lords, it was found that there is primary and secondary victim.
Joy: She was financed to Tiko, who was involved in a plane crash and learned of the news through live television broadcasts. This made her suffer from Post-Traumatic Stress Disorder. As a secondary victim, she has to demonstrate and proves the following: Close tie, love and affection to the primary victim, witnessed the event with his unaided senses, proximity to the event and its immediate aftermath. When these conditions are satisfied, as was in this case, it can be proved that psychiatric injury was caused by the event.
Joy is, therefore, not entitled to damage because she does not satisfy all the above elements. She does not satisfy the criteria set out above, in Alcock & ors v, Chief Constable of South Yorkshire  AC 310 House of Lords.
Maka: Maka is a primary victim because he was available at the physical zone of danger. He only has to demonstrate that physical harm was foreseeable since he was indirectly involved in an accident. There was no duty of care owed to him as he was not on the plane during the plane crash. This was captured in McFarlane v EE Caledonia  EWCA Civ 13 Court of Appeal.
Damian: Just like Joy, Damian is a secondary victim but his suit meets the criteria set out in Alcock & ors v Chief Constable of South Yorkshire  AC 310 House of Lords. He is, therefore, entitled to damage.
The current negligence law was found in the case of Donoghue V Stevenson (1932) AC 562. In the ruling, for the case of negligence to be successful, the plaintiffs need to prove the following: That the defendant owed them the duty of care, that the defendant acted in breach of duty, that the breach of duty necessitated the damage and that the damage was not that too remote.
In this case, vicarious liability can be found since the plaintiffs can prove that the accident occurred because of the pilots’ negligence who were working for Sky Airlines at the time of the accident. The Airlines would be considered responsible for the accident which suffices the presence and existence of vicarious liability.
In 1972 Sheris v. Sheris & Travelers, 212 Va. 825, 188 S. E. 2d 367. This is the treaty that covers most of the torts resulting from plane crashes. The Warsaw Treaty placed absolute liability on airplanes for all personal injuries irrespective of the fault; this is only if the damage happens aboard the plane.
In this event, the burden lies with the plaintiff to prove that the pilot is guilty of negligence and that it is the negligence that is considered the proximate cause of the plane crash, and hence should be held liable for the accident. Negligence torts should be based on conjecture and in the event that the jury finds it difficult to mention the cause of the accident, they must find the defendant liable for it (BrianRoche Law, 2014).
In the event of a plane crash, the claimant was aware of the risk resulting from drinking while on duty but did not consent to the law of negligence that necessitate the injury.
The plaintiffs, Eddy, Joy and Maka, who are alleging they suffered emotional distress resulting from the accident should prove that negligence on the pilot resulted in the plane crash. Airline crashes are considered very ripe with the potential infliction of emotional distress actions because of negligence by pilots. Ordinary cases of negligence apply to aircraft operations and accidents and Damian, Eddy, Joy and Maka are entitled to file a suit seeking damages and compensation of the harm they suffered. The case has also proved that the airline business owes vicarious liability to the plaintiffs because the accident was caused by its employees.
The incident involving a plane crash and the Dream Fc team can be viewed in light of the Morris v Murray (1990). The courts held that the drunkenness of the pilot was very extreme, and he was aware that piloting while drunk was synonymous with participating in an obvious and intrinsically dangerous venture (Cunningham, 1992).
The defence succeeded in the case of a plane belonging to Sky Airlines; the company accepted that the plane crash was occasioned by negligence on the site of the pilot who was drunk. Eddy, Joy, Maka and Damian should file a suit for damages and compensation. This is because the harm and emotional injuries they have suffered from was mainly due to the actions of the pilots. Their case is strengthened by the fact that the company, Skyline Airlines that the accident was wholly caused by the drunkenness of the pilot.
BrianRoche Law. (2014). Airplanes-Cases Summarized By Accident Lawyer. Retrieved on 23rd March. 2014 from: http://www. brienrochelaw. com/tort-law/tort-case-law/a/airplanes/
Cunningham, E. (1992). Negligent Infliction of Emotional Distress in AirCrash Cases: A New Flight Path?. Washington University Law review, 70(3), pp. 935-957. Retrieved on 23rd March 23, 2014 from: http://digitalcommons. law. wustl. edu/cgi/viewcontent. cgi? article= 1863&context= lawreview
e-lawresources.(n. d). Negligently inflicted psychiatric injury. Retrieved on 24th March 24, 2014 from: http://www. e-lawresources. co. uk/Negligently-inflicted-psychiatric-harm. php