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Tortuous Negligence Liability
Law of Tort Assignment Question
In order to advise the claimants whether they should successfully pursue a claim for negligence following recent events, the subsequent issues need to be considered. What is tort? What is negligence? And last of all what is nervous shock?
Winfield's definition of tort is:
“Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”
In laymen's terms, tort is a civil wrong or breach of a duty to another person on which courts, based on fault, impose liability and it is mainly concerned with providing compensation for personal injury and property damage caused by negligence.
Negligence is defined as “failure to do or recognize something that a reasonable person would do or recognize, or do something that a reasonable person would not do”. Negligence protects an individual against economic loss, property and personal injury. However, the claimant must prove the defendant's negligence with a preponderance of evidence.
Nervous shock is a term used to denote a psychiatric illness or injury caused to a person by events, caused by the negligence of another person. For a claim of nervous shock the illness must be recognized as a psychiatric disorder. However, as seen in Hinz v Berry, a person who suffers from extreme grief and sorrow, but which falls short of a recognised psychiatric illness are not able to recover damages, as we are expected to be able to cope with grief. To succeed in a tort of negligence action, the claimant must prove three factors. Firstly, the defendant owed them a duty of care. Secondly, the defendant was in breach of that duty. Thirdly, the claimant suffered damage caused by the breach.
The first element in the claimant's case is whether the defendant owed them a duty of care. This was first established by the speech of Lord Atkin in Donahue v Stevenson. Lord Atkins stated that:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.
The neighbour principle remains the backbone of duty of care, but in the ensuing years the courts have developed more complex tests. In Anns v Merton, Lord Wilberforce proposed a two-stage test. The first stage was to establish whether there was sufficient relationship of neighbourhood or proximity between the defendant and the claimant. If there is, then the second test is whether any policy considerations would prevent a duty of care being imposed. However, Murphy V Brentwood has generally killed off the Anns two-part test.
Fears that the Anns test would fail to develop the duty of care, led the courts to favour an alternative test. The decisive case in the ‘counter-revolution' was probably the decision of the Privy Council in Yuen Kun Yeu v Attorney General, in which Anns was subjected to re-interpretation. The statements of Lord Bridge in Carparo Industries plc v Dickman are now generally taken to represent the law and a new three-part test was established which is still used today.
The courts must first consider whether the consequences of the defendant's acts were reasonably foreseeable. For example, damage or harm were reasonable foreseeable in Kent v Griffiths but not in Bourhill v Young.
Secondly, whether there is a relation of proximity between the parties. For example, was there a legal relationship or physical closeness? There was proximity in Home Office v Dorset Yacht Club, but not in Caparo.
Thirdly, whether in all circumstances it would be fair, just and reasonable for the law to impose such a duty of care. It was held not to be fair, just and reasonable to impose a duty on the police in Hill v Chief Constable of West Yorkshire. However, a duty was imposed on the fire brigade in Capital and Counties plc v Hampshire County Council.
The second factor the courts will take into account to establish negligence is breach of duty. This is commonly known as the ‘reasonable man' test, and simply asks whether the defendant has done something a reasonable person would not have done, or failed to do something that a reasonable person would not have. Baron Alderson in Blyth v Birmingham Waterworks Co said:
“Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or do something, which a prudent and reasonable man would not do”.
When deciding whether there has been a breach the courts take into account appropriate factors. These include the probability of harm and any special skill of the defendant. For example, children cannot plead infancy as a defence to a tort. However, children and young people will usually be judged by the objective standard of the ordinarily prudent and reasonable child of the same age, as in Mullins v Richards. However, if a young person deliberately commits an action with an obvious risk of harm, they may be judged by the standards of an adult as in Williams v Humphrey. Here the boy had deliberately exposed a man to the risk of injury, so the court judged him as an adult. A person who claims to have a special skill is judged by the standards of a reasonable person possessing the skill, which he claims to possess as seen in Bolam vFriern Barnet Hospital. However, in Wells v Cooper, the defendant was found not liable as hewas merely classed as an apprentice carpenter or underskilled. However, motorists owe a duty of care even if they are a learner or inexperienced driver, which could be seen as being underskilled, as seen in Nettleship v Weston.
In deciding whether a duty has been breached the courts will take into account a number of factors to determine whether or not reasonable care has been taken. Firstly they will look at the degree of risk involved. In the case of Haley v London Electricity Board a risk was shown to be involved and it was held that a body conducting operations on a city highway should foresee that blind persons would walk along the pavement. But in Bolton v Stone there was no risk or a low risk as the cricket club had done everything reasonable of them to prevent the accident happening. Plus, cricket balls had only been struck out of the ground six or seven times in twenty years. So the risk of injury was certainly foreseeable, but not high enough to merit special attention from the defendants.
Secondly, the courts will look at the practicability of taking precautions, as the courts expect people to take only reasonable precautions in guarding against harm to others. An example of this is in the case Latimer v AEC Ltd.
Thirdly, the courts will consider the seriousness of harm as sometimes, the risk of harm may be low but this will be counter-balanced by the gravity of harm to a particularly vulnerable claimant. See, for example, Paris v Stepney Borough Council
Lastly, the courts will consider the social importance of risky activity. If the defendant's actions served a socially useful purpose then he may have been justified in taking greater risks as seen in Watt v Hertfordshire County Council.
Finally, in order to succeed generally in an action for negligence the claimant must satisfy the rules on causation. Causation in fact is concerned with whether, as a matter of fact, the breach caused the damage complained of. This is usually referred to as the ‘but for' test. To establish the following three elements need to be satisfied.
The first element deals with the question of whether the damage was caused by the breach of duty. This test is best established in Barnett v Chelsea Hospital Management Committee.
Secondly, multiple cases must be satisfied, as where there are a number of possible causes of injury, the claimant must prove the defendants breach of duty caused the harm or was a material contribution, as established in Wilsher v Essex Area Health Authority.
Finally, remoteness of damage must be satisfied. The opinion of the Privy Council is that a person is only responsible for the consequences that could reasonably have been anticipated. The Privy Council changed this test in 1961 with the following case of Overseas Tankship Ltd v Morts Dock & Enginerring Co.
The final thing to clarify concerns instances where harm has been suffered as of an emotional or mental nature. In a case of ‘nervous shock' or most recently referred to by the courts as ‘psychiatric damage', the claimant will have to demonstrate on the basis of medical evidence, that they have a recognizable psychiatric condition.
At first, it was thought that a claimant could only succeed in a claim if they were within the range of physical impact as in Dulieu v White. In other , only the ‘primary' victim could sue; as that was the person who would foreseeable suffer physical damage. However, this was later extended to include people who saw or heard the accident, which caused the shock as established in Hambrook v Stokes. In the case of Mclaughlin v O'Brian the law moved in the direction of a test of ‘reasonable foreseeability', which included immediate aftermath of the accident, but was not directly present at the scene.
Alcock v Chief Constable of the South Yorkshire Police, first established categories of claimants. Lord Oliver classed a primary victim as a person directly involved in an accident as a participant and who was actually exposed to the risk of physical injury, whilst a secondary victim would simply witness the accident. The significance of this distinction became clear in Page v Smith.
As regards to Bill, he will have to prove the accident put him at risk, which it looks like it did. Bill could be classed as a primary victim, as he was involved either immediately or immediately as a participant in the events. Even though Bill did not suffer any physical injury in the accident, he did suffer post-traumatic stress disorder, which is recognized as a psychiatric disorder. If this were the case, the defendant would be liable for psychiatric injury sustained to Bill as a result of his negligence, as seen in Page v Smith. Therefore I advise Bill, that you have a claim under nervous shock and therefore can sue Ian. The remedy you will receive is damages.
As regards to Minty, he did not see the crash, but heard it, and on approaching the scene witness's Phil's car, which in turn triggered a previous psychological condition. The House of Lords held in Bourhill v Young that a motorist has a right to expect that bystanders are people of reasonable fortitude, and will be able to cope with the ordinary day-to-day horrors of the road. However if Minty can prove he had some close ties with Phil, he might be able to claim, otherwise mere bystanders probably could not sue. A mere bystander, who was not a rescuer and to whom no duty such as that arising from the master and servant relationship was owed by the tortfeasor, would not generally recover as in McFarlane v E. E. Caledonia Ltd, and would only be able to do so if he was linked by ties of love and affection to a primary victim as in Alcock. Therefore Minty will have too prove there was a close a close relationship with Phil for his claim to be successful otherwise there is no prospect of a successful action.
As regards to the emergency services, some members suffered a recognisable psychiatric illness after witnessing the scene. Sometimes rescuers can be classed as ‘primary victims' if they are, or believe themselves to be, exposed to physical danger, which could be seen as being possible, since the carrier was carrying flammable substances, which could have exploded. An example of this is in the case Chadwick v British Railways Board. However, in White v Chief Constable of South Yorkshire, the House of Lords considered claims by police officers that had suffered psychiatric injury after tending the victims of the Hillsborough tragedy. It was held that an employer has a duty to protect his employees from physical but not psychiatric harm. A rescuer, not himself exposed to physical risk by being involved in a rescue was a secondary victim, and as such not entitled to claim. Therefore if the emergency services cannot prove that they were exposed to physical danger, then I consider there is no prospect of a successful action. However if their lives were put in physical danger they could be classed as primary victims. Therefore if this was the case, I advise you, that you could have a claim under nervous shock. The remedy you will receive is damages.
Regarding Stella, she is diagnosed with post-traumatic stress disorder after identifying Phil's body at the scene of the accident. However Stella and Phil have separated, and have not seen each other for six months. However, in McLaughlin v O'Brian, members of the claimants family were badly injured and although the claimant was not present at the accident, and therefore not in any physical danger, she suffered a psychiatric illness as a result. The House of Lords held that, where it was reasonably foreseeable that a psychiatric injury would arise from an event, the person who caused the event, had a duty of care in respect of a psychiatric injury. Therefore, if it can be shown that Stella still has a close tie of love and affection with Phil she will be able to seek damages. However if this cannot be proved there is no prospect of a successful action.
Finally, regarding Peggy, who is made aware of the accident by a phone call from Stella, whilst on holiday. Peggy suffers post-traumatic stress disorder after seeing the body of her dead son and ill grandchildren, whilst at the hospital and ten hours after the accident. However, as Peggy only witnessed the body of her son and ill grand children ten hours after the accident, this could not be regarded as the ‘immediate aftermath' of the accident as in Alcock, it was stated that the psychiatric harm must come through the claimant's own sight or hearing of the event or its immediate aftermath. I therefore advise Peggy that is unlikely to succeed in a claim of negligence, as your post-traumatic stress disorder could not be classed as in the immediate aftermath.
- Cooke, J., (2005), Law of Tort, 7th Edition. Pearson: Essex.
- Kidner, R., (2006), Casebook on Torts, 9th Edition. Oxford University Press: Oxford.
- Oxford - Dictionary of Law (2006), 6th Edition. Oxford University Press: Oxford.
- Rogers, W.V.H., (2006), Winfield and Jolowicz on Tort, 17thEdition. Sweet & Maxwell: London.
- Asif Tufel.Tort flowchart. Available from:https://www.lawteacher.net/PDF/Flowchart.pdf (Accessed on 23/01/08)
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