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Published: Fri, 02 Feb 2018
Whether Skyride owe a duty of care
Although a claim under psychiatric injury is a special case of negligence, I will be applying the elements of the tort of negligence by first determining whether or not Skyride Ltd owe a duty of care to the Claimants.
Abdul is in the carriage immediately behind the incident when he suffers a shock that triggers his mental illness. According to Kennedy J, in Dulieu v White, ‘the shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself’. Abdul satisfies this requirement as he is reasonably terrified that his carriage would come off the rails and plunge 100 metres to the ground.
The test to be applied when determining a duty of care to Abdul by Skyride Ltd, as stated by Lord Lloyd in Page v Smith is a question whether the defendant (Skyride Ltd) can ‘reasonably foresee that his conduct will expose the Claimant (Abdul) to a risk of personal injury’. If so, Skyride Ltd comes under a duty of care to Abdul. The statutory definition of ‘personal injury’ as in section 38(1) of the Limitation Act 1980 includes ‘impairment of mental condition’.
In the case of Page v Smith, the House of Lords identified two different classes of victims that can recover for psychiatric injury in situations where physical harm does not occur. As Abdul was directly involved in the incident, and physically endangered by Skyride’s negligence, he will be classed as a primary victim.
In saying so, Skyride Ltd must or should have foreseen some physical injury to Abdul as he was ‘immediately’ behind the carriage that plunged to the ground. According to Lord Lloyd, ‘foresee ability of psychiatric injury is not essential…provided that some personal injury (of whatever kind) was foreseeable’.
This means that Abdul is owed a duty of care by Skyride Ltd, and the negligent act of failing to check the coupling devices regularly (the cause of the accident) means that the theme park is in breach of their duty towards Abdul.
The omission by the theme park is the factual cause of Abdul’s recognised recurrence psychiatric injury and although triggered, is not too remote from the negligent act of Skyride Ltd.
Although Abdul is a person with pre-existing mental disposition that had been treated in the past, Skyride Ltd’s negligent liability is not limited. The theme park’s defence will be dismissed as the ‘egg-shell skull’ rule also applies in cases of psychiatric damage. This requirement as emphasised in the case of Brice v Brown will mean that Skyride Ltd must take their victim (Abdul) as they find him, irrespective of Abdul’s pre-existing mental illness that was treated in the past.
In conclusion, Abdul’s recurrence mental illness will be fully recoverable in the tort of negligence, as the Skyride Ltd is in breach of their duty of care and negligently caused Abdul’s psychiatric injury.
Brian v Skyride Ltd
In order to succeed in a claim of psychiatric illness, the Brian must first satisfy that he is a reasonably foreseeable victim, owed a duty of care by Skyride Ltd. The classification of victims was subsequently considered by the House of Lords (HoL) in Page v Smith (1996). In doing so, the court (by majority) held that where a plaintiff was ‘directly involved in the accident’ and ‘well within the range of foreseeable physical injury’, he will be regarded as a ‘primary’ victim. Other group of victims classed as ‘secondary’, are therefore required to satisfy the test laid down in Alcock v Chief Constable of South Yorkshire (1992).
Brian was at home when the accident occurred and was not in the scene or directly involved in the accident. He will be classed as a secondary victim as he reasonably feared for the safety of a third party, in this case is his son, Dave.
Following the test laid down in Hambrook v Stokes Bros, Brian is required to establish that his psychiatric illness was a reasonably foreseeable consequence of Skyride’s negligent conduct and a person with ‘normal standard of susceptibility’ will be affected equally.
According to Lord Bridge in McLoughlin v O’Brian, in making this decision, the judge ‘relies on his own opinion. Treating himself as the reasonable man, (the judge) applies the primary facts as to whether the proven chain of cause and effect was reasonably foreseeable’. If so, the theme park is under a duty of care to Brian.
Lord Wilber in the obiter suggests that the three factors on the concept of proximity, established in Alcock is to be weighed in applying the reasonably foresee ability test.
In applying the Alcock test, Brain must first establish that he acquire a close tie of love and affection to Dave (the immediate victim). This is not an issue as there is a common law rebuttable presumption that will be in favour of Brian due to the nature of his relationship, as a parent to Dave.
The second part of the test as firmly emphasised in McLoughlin v O’Brian, requires Brian to be in ‘physical and temporal proximity to the scene of the accident or its ‘immediate aftermath’’. This poses a problem as Brian was at home when the accident occurred and not on the scene of the incident. In respect to the ‘immediate aftermath’, Brian saw his son more than six hours after the incident. By this time, Dave had been taken into intensive care. It can be arguable that Brian will fail in his claim under the concept of ‘immediate aftermath’ as he did not see his son in the same state as the accident.
The final part of the test is the means of perception (the means by which Brian learns of the accident). In McLoughlin, Lord Wilberforce stated that ‘there was no case in which the law had compensated shock brought by communication by a third party’. This part of the test requires Brian to appreciate the shock through sight or hearing of the event or its aftermath. As Brian was telephoned by a third party in connection to the incident, he may be unable to recover as he fails to satisfy this requirement.
As a secondary victim, there is an additional requirement of ‘shock’ that Brian has to satisfy. The principle, as explained by Brennan J in the Australian case of Jaensch v Coffey restricts recovery to injury, unless ‘induced by shock’.
Although Brian’s illness is a reasonably foreseeable consequence of Skyride’s negligent conduct, his claim might fail as the three additional proximity requirement established in Alcock and the ‘shock’ requirement are not met.
In Frost Henry LJ agreed that the test was relevant, and was subsequently applied in Sion v Hampstead Health Authority, a case that depicts similar material fact to the present. Here, the Court held that the Claimant did not suffer from ‘shock’, but rather, his illness grew out of a sequence of events that extended over an appreciable period of time.
Similarly, it is arguably that Brian will fail to recover as his illness can be associated with cumulative effect of prolonged exposure to distressing circumstances. This includes Dave’s unsuccessful operation and the turning off of the life machine.
Brian’s recovery can also be questionable as Lord Denning held in Hinz v Berry, that ‘English law does not award damages for grief and sorrow caused by a person’s death’. Brian’s condition of anxiety and nightmares might not satisfy the scope of liability if it is ruled as a non-recognised psychiatric illness.
The common law rule on secondary victim has been highly criticised, leading to a recommendation for legislative reform by the Law commission (LC249). This recommendation includes the abolishing of some control devices such as the requirement of shock, physical and temporal proximity, and the means of perception test. The proposed legislation also seeks to make adjustment to the requirement for close ties of love and affection.
Given that the reform has no legal effect on the present law, it is arguably that Brian will be unable to recover as he does not satisfy the control mechanisms, and therefore is not owed a duty of care by Skyride Ltd.
Christie v Skyride Ltd
As an ambulance driver, Christie forms a special category of victim, entitled to recovery for psychiatric injury. According to Chadwick v British Railways Board, damages for Christie’s psychiatric illness will be fully recoverable as she will be treated as a primary victim rescuing in the immediate aftermath of the incident. The Skyride Ltd will therefore owe a duty of care to Christie since it is reasonably foreseeable that somebody might try to rescue Dave, ‘and suffer injury in the process’. Waller J in this case went on to state that it did not matter that the injury was psychiatric, as ‘shock was foreseeable and rescue was foreseeable’.
The question whether Christie will be able to recover, as the rescue was part of her professional duty might be rejected. This suggestion was tackled in the case of Frost, where the court held that a plaintiff may recover as a rescuer even if the rescue attempts were made in the course of his/her professional duties.
Subsequent to the common law change on the recovery by rescuers, although Christie was not directly involved in the accident (classification of primary victim in Page v Smith), she will be classed as a primary victim as she was a participant, well within the range of foreseeable physical injury, a test established in Hegarty v EE Caledonia Ltd.
The House of Lords agreed with this requirement and in the case White, modified the position of the law, such that the rescuer must show actual or apprehended danger. It can be arguable that Christie will satisfy this requirement as she climbed into the wrecked carriage to comfort Dave. Her conduct therefore puts her in a condition of continuing danger whilst the fireman was cutting free Dave from the wreckage.
As Christie’s shock was as a result of her involvement as a rescuer, it is prudent that the duty of care owed to her has been breached by Skyride Ltd.
Although Christie satisfies the control mechanism on the scope of liability in respect to duty of care, she can only recover if her psychiatric condition is recognised in common law. In Kralj v McGrath, distress was dismissed as an actionable psychiatric illness. This was also considered in Frost, where Lord Bridge stated that ‘the first hurdle which a plaintiff claiming damages…must surmount is to establish that he is suffering, not merely grief or distress…, but a positive psychiatric illness’. Although the law does not give compensation for mere distress, it will be left to the expert medical evidence to establish if Christie’s illness is actionable.
If this is so, she will be able to recover for the negligently inflicted psychiatric illness. However, failure to establish her illness as actionable will mean that Christie will lose in her claim.
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