In order for a claim of tortuous liability in negligence to be actionable, primarily, certain fundamental pre-requisites need to be established in each case respectively. The requirements of the modern tort of negligence were stated by Lord Wright in, Lochgelly and Coal Co ltd v McMullan, as being, i) the existence of a duty of care owed by the defendant to the claimant; ii) a breach of that duty; iii) damage or injury caused by that breach of duty. Each aforesaid area must be examined, and principally established in each separate claim against the defendant, for any proceedings against the defendant to be successful.
To start, the first task is to identify and define the range to whom a duty of care is owed. Negligence is essentially concerned with compensating people who have suffered damage as a result of the carelessness of others. If a duty of care cannot be established and shown to exist in each of the situations concerned, then the remaining elements of the tort of negligence need not be recognized.
Over the last century, the modern tort of negligence originated with the House of Lords decision in Donoghue v Stevenson. This case was a significant keystone in the tort of negligence. It is famed because of Lord Atkins ‘neighbour principle’ in which he sets out the framework for determining the existence of a duty of care. To that end, negligence liability is thus based on a core test known as the ‘neighbour principal’.
In the years following Donoghue v Stevenson, the limits of negligence have continued to expand. Lord Wilberforce in Anns v Merton London Borough Council stated that the courts use a two stage test. First, the courts should establish whether the parties satisfied the neighbour test. Secondly, the court should ask whether there were any policy considerations which dictated that no duty should exist. The problem with the Anns test is it seemed it could be applied with little regard for previous case law and it appeared that the bounds of liability would extend beyond what was considered to be reasonable. In Curran v Northern Ireland co, Lord Bridge described Anns as the ‘high water mark’ of a trend in which a duty of care could arise. This high water mark led to a rapid judicial retreat and a reassertion of restrictions on new duties of care. In Murphy v Brentwood District Council the House of Lords overruled their previous decision in Anns anddecided the law should develop novel categories of negligence.
For duty of care claims involving damage as regards to physical injury, the basis of the current approach was summed up in the key case of Caparo v Dickman. The formal requirements that now must be satisfied before a duty of care is held to exist are; i) forseeabilty of damage ii) a sufficiently ‘proximate’ relationship between the parties; and iii) even where (a) and (b) are satisfied it must be ‘just and reasonable’ to impose a duty.
The concept of forseeabilty, i.e., what a hypothetical ‘reasonable man’ would have foreseen in the circumstances, is ubiquitous in the tort of negligence. It is the foundation of the neighbour principle, but is also used as a test of breach of duty and remoteness of damage. The loss must be foreseeable as a ‘possibility’.’Proximity‘ is usually used as shorthand for the neighbour principle. This refers to legal not physical proximity. Physical proximity may be relevant in deciding whether the parties should be treated as ‘neighbours’ in law, as in Home office v Dorset Yacht Co.Ltd, but it is not an essential requirement.
However, although this test does provide a broad framework for the establishment of a duty of care, in practice the detailed rules have come to differ according to the following factors: the type of damage sustained (the three main categories being personal injury and/ or property, pure economic loss and, as relevant to this case, psychiatric injury); whether the damage was caused by an act or omission; whether it was caused by a third party; and whether the defendant(s) fall within a range of groups who have become subject to special rules.
To that end, it is clear that the claims against the defendant in this case are all concerning psychiatric injury. In order for a claimant to claim for psychiatric illness, a claimant must prove that they have suffered, what Lord Bridge described in Mcloughlin v O’Brian as ‘a positive psychiatric illness.’ Additionally, medical evidence will be needed to prove this. Furthermore, claimants who can prove such injury can only claim in negligence if they can establish that they are owed a duty of care by the defendant, as discussed above, with regard to psychiatric injury. Moreover, this will depend on their relationship to the event which caused the shock.
To do so will require the examination of the case law which has developed sets of rules, covering different categories of claimant. The number of categories has varied at different stages of the law’s development, but since the most recent House of Lords case, White and others v Chief Constable of South Yorkshire, there are now three categories. However, in the light of the claims in this case, only two categories are relevant, those being; i) those who were put in danger of physical harm, but actually suffer only psychiatric injury.
Victims who fall into this category, are termed primary victims; and ii) those who are not put in danger of physical injury to themselves, but suffer psychiatric injury as a result of witnessing such injury to others; these are called secondary victims. A duty of care to secondary victims will arise only if they can satisfy very restrictive requirements.
In turning to the case in hand, as regards to Billie’s claim of negligence against the defendant, it seems clear from the statement that he is a primary victim in this case. The ordinary rules in negligence, as established above, apply to such a case. It is recognised in law that motorists owe a duty of care to other road users, thus, satisfying the first requirement in order for negligence to be established.
Likewise, it is clear that the defendant negligently breached this duty, due to a lapse in concentration whilst in charge of a motor vehicle. Furthermore, despite the fact that Billy did not suffer any physical injuries, it is stated that Billy does suffer psychiatric injury in the form of post-traumatic stress disorder. In McLoughlin v O’Brian Lord Bridge recognized PTSD, amongst others, as a ‘positive psychiatric illness’, furthermore liability for psychiatric damage was established in the leading case of Dulieu v White & Sons. In Dulieu, Kennedy J stated in an obiter dictum that liability for psychiatric illness was limited by a requirement that there ‘must be shock which arises from a reasonable fear of injury to oneself’.
The defendant was found liable even though there was no physical injury, as he had foreseen that the claimant would have suffered shock. In addition, White and others v C.C South Yorkshire Police confirms that if a person negligently exposes another to a risk of injury they will be liable for any psychological damage that this may cause the person, even if the threatened physical injury does not in fact happen. To that end it would be probable that a claim for negligence, with regards to this situation,would be successful. However, as fore mentioned medical evidence is needed to prove any psychiatric illness and without this obligatory evidence, any grounds for a claim in negligence would be insignificant.
In addressing Minty’s position, it is clear from the statement that Minty is not physically injured in the incident. Furthermore, despite not seeing the actual incident, he hears the crash and arrives on the scene within seconds. The sudden shock of witnessing the aftermath scenes of the accident triggers a previous psychological condition. White and Others v C.C South Yorkshire Police establishes that sufferers of psychiatric injury who are not either physically injured or in danger of being physically injured are to be considered secondary victims.
This provides the authority to class Minty as a secondary victim in this case. McLoughlin v O’Brian and Alcock v Chief Constable of Yorkshire, established that secondary victims could only claim for psychiatric injury in very limited circumstances, White confirms these limitations. In McLoughlin v O’Brian, it is evident that this case bears much resemblance to the case involving Minty, the key difference here is that Minty is a witness and is on the scene within seconds of the accident, thus putting him in the realms of proximity.
Additionally, the facts in this case are similar to that of Bourhill v Young. Notwithstanding Bourhill the law relating to ‘nervous shock’ has moved on significantly from this decision, albeit that the reluctance to compensate for harm caused by psychiatric means persist. However, it is stated in this case that the shock that Minty sufferers due to the scenes witnessed, triggered a previous psychological condition. In Page v Smiththe plaintiff, suffered the recrudescence of a psychological condition, allegedly due to a car accident in which he was involved.
The plaintiff was successful at first instance. However, the defendant appealed against this decision primarily on the basis that it had not been reasonably foreseeable that a person of normal fortitude would have suffered psychiatric injury. Though on appeal to the House of Lords Lord Lloyd stated;
“There is no justification for regarding physical and psychiatric injury as different ‘kinds’ of injury”.
In this case the plaintiff was successful and the appeal was allowed. Although, this is distinguished from the case involving Minty, for in Page v Smith it is clear in this case the plaintiff is a primary victim. Therefore, in Minty’s case a claim will only be successful if a duty of care can be found as regards to Minty. Furthermore, further limitation on the duty of care in cases of psychiatric shock was added in Greatorex v Geatorex, in which it was held that primary victim cannot owe a duty to secondary victims.
To the end it appears that any claim by Minty in negligence would be unsuccessful, unless, it can be proved that he falls within the class of people which the law allows to claim for such injuries. One of those possible classes able to claim includes, relatives or friends of those killed or injured as a result of the defendant’s negligence. This will only apply in this case if Minty’s relationship to Phil is found to be sufficient. In Alcock the point was made that there might be very rare occasions when an accident was so horrific that psychiatric damage to even uninvolved bystanders was foreseeable, and there a duty of care would arise.
Furthermore, another test which secondary victims must pass in order to have a claim concerns proximity. In Alcock it was established that a witness must have been sufficiently proximate of the accident, which means they must have been present at the scene of the accident or its immediate aftermath. It is clear in Minty’s case that he satisfies this requirement. If Minty can gratify each of the afore mentioned categories, a claim in negligence may be successful.
Moving on, and turning attention now to this case involving the emergency services. A further class of people who are classed as secondary victims are rescuers at the scene of accidents. The question that needs to be answered in this case is, ‘what requirements must a rescuer now satisfy in order to bring a claim for nervous shock?’ In White v Chief Constable of South Yorkshire the House of Lords denied that any distinctive duty is owed to a person simply by virtue of his employment relationship with the defendant or his status as a rescuer.
As the plaintiffs in this case were not ‘personally threatened’ or in a relationship of love and affection with any of the deceased, it followed that their claims had to fail. To that end, this appears to provide the authority to envisage that any claim by the paramedics would be unsuccessful, for they were never in any real danger of injury. However, it is stated in this case that the fire service, were involved in the incident.
Moreover, where put in a position of real danger. In White v CC of South Yorkshire, a number of police officers sued their employer, in respect of PTSD suffered in the aftermath of Hillsborough football disaster. This case can be distinguished from the case in question for the fire servicemen’s claim is against Ian and not there employer. Furthermore, on appeal it was held in White that for policy reasons the actions should be dismissed, though technically they should have succeeded. For reasons established it is therefore unlikely that if the fire servicemen pursue a claim, it would be successful.
Switching attention now to the situation concerning Peggy. It is stated that she is informed of the accident by Phil’s wife, Stella. Thus constituting a third party in this instance. She then rushes to the hospital, but only arrives ten hours later, upon which she sees the body of her dead son and seriously ill grandchildren. This results in PTSD. To reiterate, any psychological condition will need to be supported with medical evidence.
This situation raises the issue of proximity. In McLoughlin v O’Brian, the House of Lords made it clear that merely being informed of the incident by a third party was not sufficiently proximate. To add in McLoughlin Lord Ackner stated that identifying the body of a loved one, eight hours after the accident did not fall within the immediate aftermath of the tragedy.
However, this runs contrary to the decision in Hevican v Raune, which was decided after Alcock. In this casea father was informed of his son’s death at the police station, then identified his body in the mortuary. He was liable to claim damages for nervous shock that he suffered. Conversely, in the light of the dicta in Alcock it is unlikely that this case would be decided in the same way today. For these reasons any claim by Peggy is also probable to be unsuccessful.
Finally, as regards to Stella’s position in this case. It is stated that she is informed of the incident by the police, again constituting a third party, and she identifies Phil’s body at the scene. This could be seen as a break in the chain of causation, as regards to Ian, for it is the police who inform her of the accident from which she suffers PTSD, and not a direct result of Ian’s negligence. Furthermore, in Alcock Lord Keith states;
“Liability for injury in the particular form of psychiatric illness must depend in addition upon a requisite relationship of proximity between the claimant and the said party to owe the duty… ties of love and affection are numerous, and it is the existence of such ties which lead to mental disturbance when the loved one suffers a catastrophe… the closeness of the tie would, however, require to be proved by the plaintiff…this may be stronger in the case of engaged couples than in persons who have been married for many years”
To that end it would appear that all ties of love and affection, as regards to Stella and Phil, were severed, in light of the fact that she left Phil to take up residence with her new partner Grant. Moreover she had not spoken to Phil in over Six Months. For reasons identified it would be unlikely that any claim on Stella’s part would be successful.
To conclude, Negligence is a fault based tort. To be successful in an action a claimant must prove all of the earlier discussed criterions. To that end, in Billie’s case, if he can support his medical condition with evidence, it is likely he would succeed in an action against Ian. In the case of Minty, If he can pass the tests and satisfy the requirements that establish secondary victims, he could also be successful.
However, claimants of Minty’s type only succeed in very limited circumstances, and any action by Minty is more likely to fail. With regards to the Emergency services, It is seems almost certain that any claim by the paramedics would fail. Likewise, despite the fact the fire service are put in danger, it also seems unlikely that a claim would succeed. Finally, in Peggy’s case, for reasons established, it seems she would be probable to fail in an action. In addition, it also appears that Stella’s claim would be unlikely to succeed.
Elliot, E, Quinn, F (2005) Tort Law.5th ed. Essex. Pearson Education Ltd.
Jones, M, A (2007) Textbook on Torts.8th ed. Oxford. Oxford University Press.
Lunney, M, K, Oliphant (2003) Tort Law Text & Materials. 2nd ed. Oxford. Oxford University Press.
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