In order to advise the claimants on whether they should successfully pursue a claim for negligence, the following issues need to be considered. What is tort, what is negligence, and what is nervous shock?
Winfield defines tort as:
“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. It is mainly concerned with providing compensation for personal injury and property damage caused by negligence.
Negligence is defined as “failure to do or recognise something that a reasonable person would do or recognise, or do something that a reasonable person would not do”. Negligence protects an individual against a number of aspects, including 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, due to the negligence of another person. For a claim of nervous shock the illness must be recognised as a psychiatric disorder. The types of psychiatric illnesses that are likely to form the basis of claims include, post-traumatic stress disorder, depressive disorders, adjustment disorders and anxiety disorders. 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 is not able to recover damages, as one is expected to be able to deal with grief and sorrow.
To succeed in a tort of negligence action, the claimant must prove three issues. 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 defendant’s breach.
The first aspect 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.”
This is known as the neighbour principle and remains the basis 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 was, 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. However, 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 Three-Part Test
The three-part test states that firstly, it must be reasonably foreseeable that the conduct of the defendant will cause some harm to the claimant. For example, damage or harm were reasonable foreseeable in Kent v Griffiths but not in Bourhill v Young.
Secondly, there must be some sufficient 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 the courts consider it 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 occurs where the defendant’s conduct falls below the standard of care expected. The standard of conduct to be attained is that of the reasonable man. This is commonly known as the ‘reasonable man’ test. 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”.
However, specific rules apply if the defendant is a child, learner or a professional. 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, though children cannot plead infancy as a defence to a tort. 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. Also, where a person has held themselves as having a skill, they are required to show that skill normally possessed by persons doing that work, 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. Nevertheless, motorists owe a duty of care even if they are a learner or inexperienced driver, which could be perceived 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. Firstly they will look at the degree of risk involved, as the claimant may have characteristics that render the likelihood of harm greater and therefore increase the risk. 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. However, in Bolton v Stonethere was a low risk as the cricket club had done everything reasonable to prevent the accident happening.
Secondly, the courts will look at the practicability of prevention, as the courts expect people to take 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 magnitude of harm that is likely. The courts will take into account the risk of any damage to the claimant and also the extent of the damage that is risked. An example of this is Paris v Stepney Borough Council.
The courts may also be called on to assess the defendant’s actions. The defendant could have been serving a socially useful purpose, and he may then have been justified in taking risks as seen in Watt v Hertfordshire County Council.
The third factor of negligence the courts need to establish is whether the damage was caused by the defendant’s breach. To establish this, three things need to be fulfilled. Firstly, causation in fact needs to be determined. Here, the claimant must prove that the harm would not have occurred ‘but for’ the negligence of the defendant. This is usually referred to as the ‘but for’ test. This test is illustrated in the case of Barnett v Chelsea Hospital Management Committee.
Secondly, a degree of probability of damage must be satisfied. Where there are a number of possible causes of injury, the claimant must prove the defendant’s negligence caused the damage or was a contributory factor, as established in Wilsher v Essex Area Health Authority.
Finally, remoteness of damage must be fulfilled. The basic test for this was in the case of Re Polemis and Furness, Withy & Co and remained the same, until the Privy Council changed the decision in 1961 with the case of Overseas Tankship Ltd v Morts Dock & Enginerring Co. This decision now means, that a person is only responsible for the consequences that could reasonably have been anticipated.
The final point to clarify concerns instances where harm has been suffered 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 recognisable psychiatric condition. Claims in this area tend to occur where a person suffers a reaction due to witnessing an accident in which a loved one is injured. However, where the damage to the claimant is nervous shock other points need consideration, including the floodgates argument. This is based on the fear of too many potential claimants’ arising from one incident of negligence.
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 words, only the ‘primary’ victim could sue; being the person who would foreseeably suffer physical damage. However, this was later extended to include people who saw or heard the accident, as established in Hambrook v Stokes.
Furthermore, 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 not necessarily present at the scene. Lord Wilberforce stated that there were three elements to a claim. The first element was the relationship of the person who could sue. The closer the emotional tie the greater the claim for consideration. The second element to be satisfied was the claimant had to be proximate to the accident, which must be close both in time and space, though this could include persons who did not witness the accident but came upon the aftermath of events. Shock resulting from being told by a third party would not be sufficient.
The distinction between primary and secondary victims was summarised by Lord Oliver in Alcock v Chief Constable of the South Yorkshire Police. 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.
With regard to advising the claimants, Billy will have to prove the accident put him at risk, which it appears it did. Billy is owed a duty of care from Ian, as obviously, one road user owes a duty of care to another road user. Billy will then be classed as a primary victim, as he was involved either directly or immediately as a participant in the events. Even though Billy did not suffer any physical injury in the accident, he did suffer post-traumatic stress disorder, which is recognised as a psychiatric ailment. If this was the case, the defendant would be liable for psychiatric injury sustained by Billy as a result of his negligence, as seen in Page v Smith. Therefore, Billy can be advised he has a claim under nervous shock and thus can sue Ian. The outcome would be receipt of damages.
With reference to Minty; he did not see the crash, but heard it, and on approaching the scene witnessed 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 a close tie of love and affection with Phil, he may 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. Damages have only ever been recovered in the courts if the relationship was husband and wife or parent and child. However, it was also made clear in Alcock that other close relationships may suffice if evidence can justify this. Therefore, Minty would have to prove there was a close relationship with Phil; otherwise, Minty should be advised that he has no prospect of a successful action.
Regarding the emergency services; some members suffered a recognisable psychiatric illness after witnessing the scene. Rescuers may be classed as ‘primary victims’ if they are, or believe themselves to be, exposed to physical danger, which in this scenario, for the fire service, could be perceived as 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 who 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. The effect of this decision is that all psychiatric injury claims where personal injury is not reasonably foreseeable means employees and rescuers do not get special consideration. Therefore, if the fire service cannot prove that they were exposed to physical danger, it can be assumed that there is no prospect of a successful action. However, if their lives were exposed to any personal physical danger, the fire service could advisedly have a claim under nervous shock. The outcome would be receipt of damages. Regarding the paramedics, who are trained to cope with witnessing harrowing scenes and the sight of grievous injuries. Therefore, a claim for psychiatric harm does not include them at present under current law. In addition, in this scenario, the paramedics were some distance from the danger of the tanker. Thus, the paramedics have no prospect of a successful action.
Regarding Phil’s wife Stella who is diagnosed with post-traumatic stress disorder after identifying Phil’s body at the scene of the accident. However, Stella and Phil had separated, and had not seen each other for six months. In McLaughlin v O’Brian, members of the claimant’s 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 had a close tie of love and affection with Phil, she will be able to seek damages from Ian. If, however, this cannot be proven, there is no prospect of a successful action.
Finally regarding Peggy, who was notified of the accident by a phone call from Stella whilst on holiday, after seeing the body of her deceased son and ill grandchildren, she suffered post-traumatic stress disorder. 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. In Alcock, it was stated that psychiatric harm must come through the claimant’s own sight or hearing of the event or its immediate aftermath. Peggy, could thus be advised that she is unlikely to succeed in a claim of nervous shock, as her post-traumatic stress disorder could not be classed as being in the immediate aftermath of the events.
- 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.