Assessment Question 2
- A witness to a Road Traffic Accident (RTA) who suffers a recognized psychiatric disorder (like Post Traumatic Stress Disorder) as a result of witnessing the RTA can claim damages against the person causing the accident. Damages were awarded for the first time, for what was then known and referred to as ‘nervous shock’, in Dulieu v White and Hambrook v Stoke Bros. Following the ruling in Bourhill v Young the first case to be appealed in the House of Lords, cases involving injury of a psychiatric nature were decided based on the decision whether the injury was a “reasonably foreseeable” consequence of the defendants negligence. In Mc Loughlin v O’Brian Lord Wilberforce put forward that recovery by so called secondary victims should be subject to special requirements. These requirements were adopted by the House of Lords in Alcock v Chief Constable of the South Yorkshire Police. Witnesses to an accident are secondary victims if they are “involuntary participants” (as described by Lord Oliver in Alcock). It will be necessary for “involuntary participants” to show “proximity to the event” (as per Lord Wilberforce in Mc Loughlin ; “As regards proximity to the accident, it is obvious that this must be close in both time and space. . . . The shock must come through sight or hearing of the event or of its immediate aftermath.”). It must also be shown that the event would be shocking to a person of “normal fortitude” (per Lord Wright in Bourhill v Young; “whatever the loss/injury suffered, the type of loss/injury must be foreseeable”). The RTA was ‘appalling’ and therefore can be expected to cause foreseeable injury. As the witness was an involuntary participant to the RTA she is exempt from proving the requirement of “proximity of relationship” as argued by Lord Oliver in Alcock
- According to the Wildlife and Countryside Act it is not an offence to pick mushrooms in public access areas if they are growing wild and if they are for personal use. Protected species are listed in Schedule 8 of the Act. Traditionally one could walk on public footpaths and bridleways, on common land and on the foreshore to pick mushrooms and land owners could prevent access to other areas (or charge a fee for access). In 2000 the English Government introduced a ‘right to roam’ in the Countryside and Rights of Way Act also giving the general public the right to walk in down land, moorland, heath land and coastal land. In areas with public access collection for personal use is a common right but collection on private land requires the permission of the landowner. There is a Code of Conduct for mushrooming for England. The Code of Conduct states it is all right to pick provided you ask the landowner and stick to the code; rare species should not be picked and “no more than 1.5 kg per visit or no more than half the fruit bodies of any single species present, whichever is the lower amount” 11 should be picked from any one site in one day. Larger quantities, for any use, should be agreed upon beforehand with the landowner.
- The “Statute of Frauds” refers to the requirement that certain kinds of contracts need to be in writing. As described in Tiverton Estates Ltd v Wearwell Ltd Section 4 of the Statute of Frauds says;
“And be it further enacted by the authority aforesaid, that from and after the said June 24 no action shall be brought whereby to charge any executor or administrator upon any special promise, to answer damages out of his own estate; (2) or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriages of another person; (3) or to charge any person upon any agreement made upon consideration of marriage; (4) or upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them; (5) or upon any agreement that is not to be performed within the space of one year from the making thereof; (6) unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”
In modern English that means written contracts are required for; contracts by the executor of a will to pay a debt of the estate with his own money, contracts in which one party becomes a surety (acts as guarantor) for another party’s debt or other obligation, contracts of marriage, contracts for the sale of land, contracts which cannot be performed within one year and contracts for the sale of goods above a certain value.
- Considering a negligence claim the questions to be asked are; what duty of care does the cricket club owe to the people on the adjoining path whilst playing a game, was the cricket club in breach of that duty and was the injury suffered caused by that breach? The duty of care will depend on a three part test as defined in Caparo Industries v Dickman; foreseeability, proximity and “it being fair”. According to Lord Thankerton in Glasgow Corporation v Muir the standard of duty can be seen as; “..a person is bound to foresee only the reasonable and probable consequence of the failure to take care, judged by the standard of the ordinary reasonable man.” People walking on a path must accept some degree of risk from others as a result of simply using the path as per Lord Porter in Bolton v Stone; “The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken”. Bolton v Stone has shown that the interpretation of the standard of care will take into account not merely the game and the circumstances in which it is played but also the “very low magnitude of risk”. 14 Considering the above mentioned cases compensation for personal injuries suffered as a result of being struck on the head by a cricket ball would not likely be successful.
- Restaurant owners may be liable for the injuries or death of their patrons if they fail to protect them at the restaurant. The three part test as defined in Caparo Industries v Dickman applies; foreseeability, proximity and “it being fair”. Section 2 of the Occupiers Liability Act 1957 c.31 outlines the duties of care a restaurant owner, by law an occupier, has. Section 2(2) states; “a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there”. Section 2(4) specifically describes how can be determined whether a restaurant owner has failed in their duty of care towards patrons who have experienced “damage” as a result of being in the restaurant. A notice stating “The management accepts no responsibility for any injuries caused to any persons on these premises” will not waive liability for negligence. This is also set out in the Unfair Terms Contract Act; “A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence”.
Alcock v Chief Constable of the South Yorkshire Police  1 A.C. 310
Bolton v Stone  1 All ER 1078
Bourhill v Young  A.C. 92
Caparo Industries v Dickman  2 A.C. 605 HL
Dulieu v White  2 K.B. 669
Glasgow Cooperation v Muir  A.C. 454
Hambrook v Stoke Bros  1 K.B. 141
McLoughlin v O’Brian  A.C. 410
Tiverton Estates Ltd. v Wearwell Ltd.  Ch. 146
Countryside and Rights of Way Act 2000 c.37 s(2)
Law of Property (Miscellaneous Provisions) Act 1989 c. 34 s(2)
Occupiers’ Liability Act 1957 c. 31 s(2(1))
Sale of Goods Act 1979 c. 54
Statute of Frauds 1677 c. 3 s(4)
Unfair Contract Terms Act 1977 c. 50 s(2(1))
Wildlife and Countryside Act 1981 c.69 s(13(1))
Wildlife and Countryside Act 1981 c.69 s(8(1))
British Mycological Society. Wild Mushroom Picker’s Code of Conduct http://www.fungi4schools.org/Reprints/Pickers_code.pdf (accessed 09/02/2010)
Law Commission Consultation Paper No 137 – Liability for psychiatric Illness  2 Web JCLI http://www.lawcom.gov.uk/docs/lc249(1).pdf (accessed 04/02/2010)
William Norris. The duty of care to prevent personal injury (2009) J.P.I. Law,2 ,114-134