Wednesday, October 18, 2006
Tuesday 17 October 2006
A busy evening indeed as we discussed the area of nervous shock (psychiatric damage) in the tort of negligence. The usual rule in Donoghue v Stevenson [1932] does not work here. It is almost compulsory to be asked a question in the examination, and one would do well to learn the material. The development of the law on nervous shock makes an excellent essay question.
“Nervous shock” has been used by lawyers to denote a sudden assault on the nervous system of the claimant which causes lasting effects on the health and well-being of the victim. What this means is that we are looking for a sudden impact on the senses which has a long-term effect on a person’s mental health. What it isn’t is the normal sorrow and grief caused by the loss of a loved one, although it is accepted that there can be a ‘pathological grief disorder’, as we shall see later.
There is a distinction to be made, which stems from the case of Alcock (below), between:
PRIMARY victims – actually involved in the incident
SECONDARY victims – witnesses to the horrific event in question
Much of what follows is concerned with secondary victims.
There are problems associated with allowing a claimant to succeed in nervous shock:
FLOODGATES – the possibility of a major disaster which is witnessed by large numbers of people who are traumatically affected by the sight. The Kings Cross fire and Hillsborough football stadium disasters are recent examples.
FRAUDULENT CLAIMS - the difficulty of identifying genuine psychiatric illness.
DIFFERENTIATING BETWEEN NORMAL SORROW AND GRIEF AND NERVOUS SHOCK – see Vernon v Bosley (No 1) (1997) (below).
Whilst early cases were bound to failure due to lack of scientific knowledge, as this has increased the courts have become increasingly willing to accept that ‘nervous shock’ exists.
The first success for nervous shock was Dulieu v White (1901). The claimant, who was pregnant, was working behind the bar of a pub when a horse van was negligently driven into the pub. As a result she suffered shock, resulting in a premature birth. SHE SUCCEEDED BECAUSE SHE WAS IN FEAR OF HER OWN SAFETY.
In Hambrook v Stokes (1925), a lorry, which was negligently left unattended at the top of a hill with the engine running and hand brake off, careered down a steep hill. The claimant’s wife had just left her children round a bend in the road. Seeing the lorry she feared for the safety of her children. She was told that a girl wearing glasses had been injured, and believing it was her daughter she suffered nervous shock and died. Although not within the foreseeable area of then impact she was allowed to recover. A new limitation now existed, it was possible to recover damages WHILST FEARING FOR THE SAFETY OF ANOTHER, although for what she witnessed herself, rather than what she had been told.
Following these two cases 2 factors emerged in determining whether a person owed a duty not to cause nervous shock:
(1) the closeness of the claimant to the accident, & whether the defendant was aware of the presence; and
(2) a relationship between person suffering nervous shock and the person in danger. Relationships other than close family ties were to be recognised.
In Dooley v Cammell Laird (1951) it was held that there could be a sufficiently close relationship between workmates.
The important case of Chadwick v British Transport Commission (1967) it was held that a person who acted negligently owed a duty to a rescuer in respect of nervous shock. The claimant had assisted at the scene of a train crash and suffered nervous shock as a result of what he witnessed there. The recognition of rescuers is based on public policy grounds as the law has no desire to deter rescuers.
The question of when a duty not to cause nervous shock would be owed was considered by the House of Lords in McLoughlin v O’Brien (1983) – the first opportunity of the House of Lords to consider nervous shock since the case of Bourhill v Young (1943) (woman hearing an accident when alighting from a tram). We discussed this case earlier. In the present case the claimant’s husband and her three children were involved in a road accident caused by the defendant’s negligence. She was told about the accident an hour or so after it happened and she was taken to the hospital. She saw her daughter covered with dirt and oil, with cuts to her face. Her husband was in a similar condition. Her son was badly injured and screaming. Her other daughter had died almost immediately. It was held that the claimant could recover damages for her nervous shock. The House of Lords decided unanimously that the driver owed the claimant a duty of care.
As is often the case, the decision was unanimous, but for varying reasons. Lord Wilberforce stated that foreseeability alone was not sufficient, whilst Lords Bridge and Scarman rejected this approach as producing arbitrary results and preferred an approach based on foreseeability alone. In determining whether shock was foreseeable a number of elements including relationship & closeness to the accident would be relevant but not conclusive. Subsequent cases were to show that this was the preferred view.
We will begin by looking at the Hillsborough disaster. On 15th April 1989 a semi-final of the FA Cup was due to be played between Liverpool & Nottingham Forest at Hillsborough, Sheffield. There was a sell-out crowd. The TV were there to record highlights. The match was halted after 6 minutes as the weight of numbers of people in the Leppings Lane pens created such pressure that spectators were trapped against wire separating pens from the pitch. 95 people died, 400 more needed hospital treatment. Thousands witnessed the scene from other parts of the ground, millions saw it on TV or heard it on radio. Many who were watching or listening had loved ones at the match. The broadcast images of the Hillsborough disaster did not depict the suffering or dying of recognisable individuals
Sixteen test cases were brought to determine whether the Chief Constable owed them a duty of care, & were representative of a further 150 further claims. Some claimants were at the ground, whilst others were watching TV. All claimed to have suffered nervous shock.
Jones v Wright (1991) (1st instance). The trial judge held that proximity is what it was about, relationship & geographical.
RELATIONSHIP – relatives other than spouses would be able to claim, they would foreseeably suffer nervous shock. These relatives would include brothers & sisters & grandparents bringing up a child from a baby.
GEOGRAPHICAL – all those inside or immediately outside could claim, as could those who saw it on TV, providing that the relationship issue was settled. Being told, or hearing of it on radio was not enough.
We are now left with:
Failed claimants in the High Court appealing to the Court of Appeal (best friends, perhaps?).
A cross appeal by the defendant (the Chief Constable), alleging that the Trial Judge had gone too far (grandfathers, TV viewers?).
Alcock v Chief Constable South Yorkshire (1991) (Court Of Appeal). The court severely criticised the decision of the trial judge & stated:
The TV viewers claimants must fail as a TV broadcast, whilst reasonably foreseeable that it would be broadcast, the intervention of a third party between the accident & a claimant meant that the TV was not equivalent to the sight or sound of the accident.
Only the relationships that would have succeeded prior to McLoughlin should succeed, unless the defendant could prove that the claimant didn’t have a “relationship of love & care”, e.g. husband & wife who are separated & hate each other, or the claimant’s relationship is equivalent to a parent or spouse, e.g. a grandparent bringing up a child.
Leave to appeal to the House of Lords was granted to ten of the original claimants, & were unanimously dismissed in Alcock v Chief Constable South Yorkshire (1991) (House of Lords). They held that the requirements for a duty of care in nervous shock cases are:
Harm was reasonably foreseeable.
Proximity of relationship between the claimant and the victim. In spouse & parent-child relationships there is a rebuttable presumption, but it is open to other relationships to prove the existence of caring & loving relationships, e.g. Grandfather again, siblings, engaged couples.
Proximity to the accident or its immediate aftermath must be sufficiently close in both terms of time & space.
Sight or sound of the accident will continue to suffice; the law will not compensate shock brought about by a third party communicating it. Lord Jauncey stated that as a matter of public policy the situation of rescuers would not be affected (see Chadwick above).
In Boylan v Keegan [2001] (unreported) and eight-year-old girl had been seriously injured in a road accident. She was being comforted by her mother when she rang her husband to tell him of the accident. He heard her screams and the sounds of the arrival of the ambulance. The girl died two days later, in her father’s arms. He brought a claim for nervous shock. He could not succeed as he was not present at the immediate aftermath, nor had he seen the accident with his own unaided senses.
Another case to arise from Hillsborough concerned claims by police officers, for psychiatric damage is White v Chief Constable of South Yorkshire Police (1999). Again the case concerns members of the rescue services. At Hillsborough. It was held that:
(1) employees can only recover damages in line with Alcock.
(2) Rescuers can recover if it is shown that there was actual or apprehended danger to them.
The position of a mere bystander watching a tragic scene unfold before him was considered in McFarlane v EE Caledonia Ltd (1994), often simply known as the ‘Piper Alpha Oil Rig disaster’. The claimant was employed as a painter on the rig owned by the defendants. The claimant was in his bunk on a support vessel some 550 metres from the rig, when a series of massive explosions occurred on the rig. For 1¾ hours he witnessed the destruction of the rig before being rescued. 164 men were killed in the disaster. He claimed damages for psychiatric illness suffered as a result of what he saw. The Court of Appeal applied Alcock and held that such a claimant could not recover unless the elements of proximity of relationship, time, and place were satisfied. The claimant was not a rescuer as such, although he was in the vicinity of the Piper Alpha disaster, aboard a vessel which went to the assistance of victims of the fire. Neither was he ever close enough to be in reasonable fear for his own safety.
As I have said, liability does not arise for the normal grief and sorrow which follows the death of a loved one. However, if it is so severe as to constitute a pathological grief disorder, a claimant may be able to recover. In Vernon v Bosley (No 1) (1997) the claimant was present whilst attempts were made to salvage a car, containing the bodies of his daughters, from a river. On these facts the court found it impossible to distinguish between the effect on the claimant of seeing the scene of the accident, knowing that his young children were almost certainly dead, and the natural effects of grief and bereavement which followed when their death was confirmed. The abnormal grief reaction which he went on to suffer should not be discounted by the “normal” grief which was to be expected in such circumstances.
The distinction between primary and secondary victims was made by Lord Oliver in Alcock:
PRIMARY – directly involved in the incident as a participant
Secondary – usually a witness to the incident.
The following cases considered the distinction between victims and/or whether they were present at the immediate aftermath:
Greatores v Greatorex [2000]. A fireman who came to rescue his son was not allowed to bring an action against him on the grounds of public policy, as it would lead to family breakdowns.
Atkinson v Seghal [2003]. A woman was searching for her sixteen-year-old daughter and found her at the site of a road accident. She had been killed. She went with her daughter’s body to the mortuary, jugging her battered boy. She showed evidence of an abnormally strong grief reaction and the Court of Appeal said that she was present at the immediate aftermath (the mortuary).
Waters v North Glamorgan NHS Trust [2003]. The claimant suffered pathological grief reaction following the death of her son. He had been negligently dealt with at the hospital, and she remained with him throughout the last thirty-six hours of his life, when the decision was made to turn off a life support machine. The Court of Appeal said that this was one continuing horrific event, and so she could recover damages.
The case of Donachie v C.C. GMP [2004] came before the Court of Appeal to decide whether the claimant, on the facts of the case, was a primary or a secondary victim. On the evening of 2nd November 1997, the claimant was required, in the course of his duty as a police officer seconded to the North West Regional Crime Squad, to attach a tagging device to the underside of a car that the Crime Squad believed belonged to a gang of criminals. The car was parked in a street behind a public house in which the suspected criminals were drinking. The claimant was one of a group of officers instructed to carry out the operation.
In accordance with the usual procedure, the claimant was to attach the device to the underside of the car while the other officers kept watch from in and around a police ‘tracking’ van to guard against the possibility of the suspects emerging from the public house and catching the claimant. If all had gone well, he should have been able to approach the car, get underneath and attach the device out of sight and then walk away. The device should have immediately begun recording signals to the tracking van.
Unfortunately, and unknown to the claimant and the other officers, the device was fitted with a battery, which although newly fitted and used earlier that day on another vehicle, had failed. When the claimant attached it to the underside of the car, it did not give a signal. The claimant had to return to the car, retrieve the device and take it back to the tracking van where the officers attempted to find out what was wrong with it. Having examined the device and tried to fix it, the claimant had to return to the car and re-attach it. Again, the device did not work and it continued to fail until two battery replacements and seven more trips by the claimant to the car. The claimant was successful only on the ninth trip.
During the operation, the claimant stated that he had become increasingly frightened, fearing serious injury or even death if the suspects caught him. With every approach to the car, the claimant considered that he had subjected himself to an increased risk of being caught and attacked by the suspects if they left the public house and saw him close to the car.
The claimant already suffered from hypertension rendering him vulnerable to stressful conditions, although the defendant knew nothing of his condition. The operation aggravated his hypertension causing extreme stress. As a result, he developed a clinical psychiatric state, leading to an acute rise in blood pressure that caused a stroke.
There was an established history of problems with the batteries provided for the tagging devices with approximately 30% of new batteries failing. No evidence was adduced by the defendant, the Chief Constable, to suggest that anything had been done to rectify this problem. Accordingly, at first instance, HHJ Tetlow found that the defendant was negligent in failing to operate a safe system of work and in breach of statutory duty in failing to provide equipment that was in an efficient state.
However, the claim in negligence was dismissed on the basis that the claimant had suffered no physical injury of the sort that he feared, namely an actual attack by the suspected criminals. Further, the psychiatric injury giving rise to his stroke was not reasonably foreseeable because of the defendant’s non-culpable ignorance of his vulnerability to stress and, therefore, he had suffered no reasonably foreseeable injury.
Effectively, HHJ Tetlow classed Mr Donachie as a secondary victim for the purposes of determining whether liability for psychiatric injury existed. On appeal, the claimant argued that HHJ Tetlow had overlooked the fact that he had been placed in a position where there was a reasonably foreseeable risk of physical injury and he was therefore a primary victim.
Counsel for the claimant, argued that HHJ Tetlow had wrongly failed to consider whether he was a primary or secondary victim having accepted that the claimant had suffered a clinical psychiatric condition leading to a physical injury in the form of a stroke as a result of the defendant’s negligence. Had the judge done so, he would have been bound by Page v Smith to conclude that he was a primary victim since the defendant should have foreseen the possibility of some physical injury. Counsel criticised the judge’s reliance on the notion that the claimant had to prove not only that he had been exposed to a risk of physical injury from being assaulted by the suspected criminals but also that an ‘event’ in the form of such an assault had actually taken place. It was argued on behalf of the claimant that the fact that the anticipated assault did not actually take place is immaterial since physical injury was reasonably foreseeable in the circumstances, rendering the claimant a primary victim. In short, hindsight is no defence where the victim is a primary victim.
Counsel for the defendant accepted that the defendant owed a duty of protection whether from physical or psychiatric injury but argued that this duty only becomes actionable in the event of criminals actually causing either or both forms of injury. However, there was no such event here, “simply the claimed effect of stress upon Mr Donachie’s body” and, accordingly there was no foreseeable risk of injury of any sort. Counsel submitted that the job of a policeman is, by its very nature, stressful but the defendant could reasonably expect a certain fortitude from the claimant, an experienced officer, in the face of physical dangers to which his job exposed him. It was argued that it was only if there could be said to have been reasonable foreseeability of physical injury from the defendant’s breach of duty in relation to the defective batteries, that the Page v Smith rule would come into play. Counsel stated that there was a risk of physical injury to any officers engaged on such tagging duties, even if the batteries were not defective but that this was a risk that went with the job. The question was whether it could be said that there was a reasonable foreseeability that the risk was materially increased by the provision of defective batteries in the sense of exposing the claimant to imminent physical harm, as distinct from ‘manageable’ or ‘controllable risk’ of such harm. If not, such foreseeability could only relate to psychiatric injury. The tagging operation was not, counsel submitted, one that involved a risk of such imminent physical danger as to constitute an ‘event’.
At first instance, HHJ Tetlow expressly found that it was reasonably foreseeable that, as a result of the malfunction of the batteries, the existing small risk in the operation would become considerably greater and the consequent stress to the claimant severe or extreme. HHJ Tetlow stated that ““the increase in the risk of physical injury due to faulty batteries prolonging the time necessarily to be spent under the target vehicle was foreseeable. Each journey to the car increased the risk of discovery and assault”. Auld LJ saw no basis to alter this finding and rejected the argument that the claimant had to prove a reasonable foreseeability of imminent physical harm as opposed to exposure to manageable or controlled risk of harm.
Auld LJ determined that the claimant was a primary victim, there was a reasonable foreseeability of physical injury and, consequently, it was not necessary to prove involvement in an event in the form of an assault or otherwise. He went on to state that had it been necessary to look for an event sufficient to enable the claimant to rely as a primary victim on reasonable foreseeability of psychiatric, as distinct from physical injury, he would have been sympathetic with the submission on behalf of the claimant that the circumstances in which he had been placed as a police officer together with his fear, arising as a result of those circumstances, of physical injury are indistinguishable in principle from occurrence of such injury. Auld LJ concluded that “there is all the difference in the world between a person like Mr Donachie put in such a position... and someone who happens to learn from afar and/or a significant time afterwards of an event in which he had no involvement, the discovery of which he claims to have caused him psychiatric injury.”
Next time we will look at a pure economic loss, another concept where the neighbour principle doesn’t work.
Don’t forget, no college next week. See you all on the 31st October.
“Nervous shock” has been used by lawyers to denote a sudden assault on the nervous system of the claimant which causes lasting effects on the health and well-being of the victim. What this means is that we are looking for a sudden impact on the senses which has a long-term effect on a person’s mental health. What it isn’t is the normal sorrow and grief caused by the loss of a loved one, although it is accepted that there can be a ‘pathological grief disorder’, as we shall see later.
There is a distinction to be made, which stems from the case of Alcock (below), between:
PRIMARY victims – actually involved in the incident
SECONDARY victims – witnesses to the horrific event in question
Much of what follows is concerned with secondary victims.
There are problems associated with allowing a claimant to succeed in nervous shock:
FLOODGATES – the possibility of a major disaster which is witnessed by large numbers of people who are traumatically affected by the sight. The Kings Cross fire and Hillsborough football stadium disasters are recent examples.
FRAUDULENT CLAIMS - the difficulty of identifying genuine psychiatric illness.
DIFFERENTIATING BETWEEN NORMAL SORROW AND GRIEF AND NERVOUS SHOCK – see Vernon v Bosley (No 1) (1997) (below).
Whilst early cases were bound to failure due to lack of scientific knowledge, as this has increased the courts have become increasingly willing to accept that ‘nervous shock’ exists.
The first success for nervous shock was Dulieu v White (1901). The claimant, who was pregnant, was working behind the bar of a pub when a horse van was negligently driven into the pub. As a result she suffered shock, resulting in a premature birth. SHE SUCCEEDED BECAUSE SHE WAS IN FEAR OF HER OWN SAFETY.
In Hambrook v Stokes (1925), a lorry, which was negligently left unattended at the top of a hill with the engine running and hand brake off, careered down a steep hill. The claimant’s wife had just left her children round a bend in the road. Seeing the lorry she feared for the safety of her children. She was told that a girl wearing glasses had been injured, and believing it was her daughter she suffered nervous shock and died. Although not within the foreseeable area of then impact she was allowed to recover. A new limitation now existed, it was possible to recover damages WHILST FEARING FOR THE SAFETY OF ANOTHER, although for what she witnessed herself, rather than what she had been told.
Following these two cases 2 factors emerged in determining whether a person owed a duty not to cause nervous shock:
(1) the closeness of the claimant to the accident, & whether the defendant was aware of the presence; and
(2) a relationship between person suffering nervous shock and the person in danger. Relationships other than close family ties were to be recognised.
In Dooley v Cammell Laird (1951) it was held that there could be a sufficiently close relationship between workmates.
The important case of Chadwick v British Transport Commission (1967) it was held that a person who acted negligently owed a duty to a rescuer in respect of nervous shock. The claimant had assisted at the scene of a train crash and suffered nervous shock as a result of what he witnessed there. The recognition of rescuers is based on public policy grounds as the law has no desire to deter rescuers.
The question of when a duty not to cause nervous shock would be owed was considered by the House of Lords in McLoughlin v O’Brien (1983) – the first opportunity of the House of Lords to consider nervous shock since the case of Bourhill v Young (1943) (woman hearing an accident when alighting from a tram). We discussed this case earlier. In the present case the claimant’s husband and her three children were involved in a road accident caused by the defendant’s negligence. She was told about the accident an hour or so after it happened and she was taken to the hospital. She saw her daughter covered with dirt and oil, with cuts to her face. Her husband was in a similar condition. Her son was badly injured and screaming. Her other daughter had died almost immediately. It was held that the claimant could recover damages for her nervous shock. The House of Lords decided unanimously that the driver owed the claimant a duty of care.
As is often the case, the decision was unanimous, but for varying reasons. Lord Wilberforce stated that foreseeability alone was not sufficient, whilst Lords Bridge and Scarman rejected this approach as producing arbitrary results and preferred an approach based on foreseeability alone. In determining whether shock was foreseeable a number of elements including relationship & closeness to the accident would be relevant but not conclusive. Subsequent cases were to show that this was the preferred view.
We will begin by looking at the Hillsborough disaster. On 15th April 1989 a semi-final of the FA Cup was due to be played between Liverpool & Nottingham Forest at Hillsborough, Sheffield. There was a sell-out crowd. The TV were there to record highlights. The match was halted after 6 minutes as the weight of numbers of people in the Leppings Lane pens created such pressure that spectators were trapped against wire separating pens from the pitch. 95 people died, 400 more needed hospital treatment. Thousands witnessed the scene from other parts of the ground, millions saw it on TV or heard it on radio. Many who were watching or listening had loved ones at the match. The broadcast images of the Hillsborough disaster did not depict the suffering or dying of recognisable individuals
Sixteen test cases were brought to determine whether the Chief Constable owed them a duty of care, & were representative of a further 150 further claims. Some claimants were at the ground, whilst others were watching TV. All claimed to have suffered nervous shock.
Jones v Wright (1991) (1st instance). The trial judge held that proximity is what it was about, relationship & geographical.
RELATIONSHIP – relatives other than spouses would be able to claim, they would foreseeably suffer nervous shock. These relatives would include brothers & sisters & grandparents bringing up a child from a baby.
GEOGRAPHICAL – all those inside or immediately outside could claim, as could those who saw it on TV, providing that the relationship issue was settled. Being told, or hearing of it on radio was not enough.
We are now left with:
Failed claimants in the High Court appealing to the Court of Appeal (best friends, perhaps?).
A cross appeal by the defendant (the Chief Constable), alleging that the Trial Judge had gone too far (grandfathers, TV viewers?).
Alcock v Chief Constable South Yorkshire (1991) (Court Of Appeal). The court severely criticised the decision of the trial judge & stated:
The TV viewers claimants must fail as a TV broadcast, whilst reasonably foreseeable that it would be broadcast, the intervention of a third party between the accident & a claimant meant that the TV was not equivalent to the sight or sound of the accident.
Only the relationships that would have succeeded prior to McLoughlin should succeed, unless the defendant could prove that the claimant didn’t have a “relationship of love & care”, e.g. husband & wife who are separated & hate each other, or the claimant’s relationship is equivalent to a parent or spouse, e.g. a grandparent bringing up a child.
Leave to appeal to the House of Lords was granted to ten of the original claimants, & were unanimously dismissed in Alcock v Chief Constable South Yorkshire (1991) (House of Lords). They held that the requirements for a duty of care in nervous shock cases are:
Harm was reasonably foreseeable.
Proximity of relationship between the claimant and the victim. In spouse & parent-child relationships there is a rebuttable presumption, but it is open to other relationships to prove the existence of caring & loving relationships, e.g. Grandfather again, siblings, engaged couples.
Proximity to the accident or its immediate aftermath must be sufficiently close in both terms of time & space.
Sight or sound of the accident will continue to suffice; the law will not compensate shock brought about by a third party communicating it. Lord Jauncey stated that as a matter of public policy the situation of rescuers would not be affected (see Chadwick above).
In Boylan v Keegan [2001] (unreported) and eight-year-old girl had been seriously injured in a road accident. She was being comforted by her mother when she rang her husband to tell him of the accident. He heard her screams and the sounds of the arrival of the ambulance. The girl died two days later, in her father’s arms. He brought a claim for nervous shock. He could not succeed as he was not present at the immediate aftermath, nor had he seen the accident with his own unaided senses.
Another case to arise from Hillsborough concerned claims by police officers, for psychiatric damage is White v Chief Constable of South Yorkshire Police (1999). Again the case concerns members of the rescue services. At Hillsborough. It was held that:
(1) employees can only recover damages in line with Alcock.
(2) Rescuers can recover if it is shown that there was actual or apprehended danger to them.
The position of a mere bystander watching a tragic scene unfold before him was considered in McFarlane v EE Caledonia Ltd (1994), often simply known as the ‘Piper Alpha Oil Rig disaster’. The claimant was employed as a painter on the rig owned by the defendants. The claimant was in his bunk on a support vessel some 550 metres from the rig, when a series of massive explosions occurred on the rig. For 1¾ hours he witnessed the destruction of the rig before being rescued. 164 men were killed in the disaster. He claimed damages for psychiatric illness suffered as a result of what he saw. The Court of Appeal applied Alcock and held that such a claimant could not recover unless the elements of proximity of relationship, time, and place were satisfied. The claimant was not a rescuer as such, although he was in the vicinity of the Piper Alpha disaster, aboard a vessel which went to the assistance of victims of the fire. Neither was he ever close enough to be in reasonable fear for his own safety.
As I have said, liability does not arise for the normal grief and sorrow which follows the death of a loved one. However, if it is so severe as to constitute a pathological grief disorder, a claimant may be able to recover. In Vernon v Bosley (No 1) (1997) the claimant was present whilst attempts were made to salvage a car, containing the bodies of his daughters, from a river. On these facts the court found it impossible to distinguish between the effect on the claimant of seeing the scene of the accident, knowing that his young children were almost certainly dead, and the natural effects of grief and bereavement which followed when their death was confirmed. The abnormal grief reaction which he went on to suffer should not be discounted by the “normal” grief which was to be expected in such circumstances.
The distinction between primary and secondary victims was made by Lord Oliver in Alcock:
PRIMARY – directly involved in the incident as a participant
Secondary – usually a witness to the incident.
The following cases considered the distinction between victims and/or whether they were present at the immediate aftermath:
Greatores v Greatorex [2000]. A fireman who came to rescue his son was not allowed to bring an action against him on the grounds of public policy, as it would lead to family breakdowns.
Atkinson v Seghal [2003]. A woman was searching for her sixteen-year-old daughter and found her at the site of a road accident. She had been killed. She went with her daughter’s body to the mortuary, jugging her battered boy. She showed evidence of an abnormally strong grief reaction and the Court of Appeal said that she was present at the immediate aftermath (the mortuary).
Waters v North Glamorgan NHS Trust [2003]. The claimant suffered pathological grief reaction following the death of her son. He had been negligently dealt with at the hospital, and she remained with him throughout the last thirty-six hours of his life, when the decision was made to turn off a life support machine. The Court of Appeal said that this was one continuing horrific event, and so she could recover damages.
The case of Donachie v C.C. GMP [2004] came before the Court of Appeal to decide whether the claimant, on the facts of the case, was a primary or a secondary victim. On the evening of 2nd November 1997, the claimant was required, in the course of his duty as a police officer seconded to the North West Regional Crime Squad, to attach a tagging device to the underside of a car that the Crime Squad believed belonged to a gang of criminals. The car was parked in a street behind a public house in which the suspected criminals were drinking. The claimant was one of a group of officers instructed to carry out the operation.
In accordance with the usual procedure, the claimant was to attach the device to the underside of the car while the other officers kept watch from in and around a police ‘tracking’ van to guard against the possibility of the suspects emerging from the public house and catching the claimant. If all had gone well, he should have been able to approach the car, get underneath and attach the device out of sight and then walk away. The device should have immediately begun recording signals to the tracking van.
Unfortunately, and unknown to the claimant and the other officers, the device was fitted with a battery, which although newly fitted and used earlier that day on another vehicle, had failed. When the claimant attached it to the underside of the car, it did not give a signal. The claimant had to return to the car, retrieve the device and take it back to the tracking van where the officers attempted to find out what was wrong with it. Having examined the device and tried to fix it, the claimant had to return to the car and re-attach it. Again, the device did not work and it continued to fail until two battery replacements and seven more trips by the claimant to the car. The claimant was successful only on the ninth trip.
During the operation, the claimant stated that he had become increasingly frightened, fearing serious injury or even death if the suspects caught him. With every approach to the car, the claimant considered that he had subjected himself to an increased risk of being caught and attacked by the suspects if they left the public house and saw him close to the car.
The claimant already suffered from hypertension rendering him vulnerable to stressful conditions, although the defendant knew nothing of his condition. The operation aggravated his hypertension causing extreme stress. As a result, he developed a clinical psychiatric state, leading to an acute rise in blood pressure that caused a stroke.
There was an established history of problems with the batteries provided for the tagging devices with approximately 30% of new batteries failing. No evidence was adduced by the defendant, the Chief Constable, to suggest that anything had been done to rectify this problem. Accordingly, at first instance, HHJ Tetlow found that the defendant was negligent in failing to operate a safe system of work and in breach of statutory duty in failing to provide equipment that was in an efficient state.
However, the claim in negligence was dismissed on the basis that the claimant had suffered no physical injury of the sort that he feared, namely an actual attack by the suspected criminals. Further, the psychiatric injury giving rise to his stroke was not reasonably foreseeable because of the defendant’s non-culpable ignorance of his vulnerability to stress and, therefore, he had suffered no reasonably foreseeable injury.
Effectively, HHJ Tetlow classed Mr Donachie as a secondary victim for the purposes of determining whether liability for psychiatric injury existed. On appeal, the claimant argued that HHJ Tetlow had overlooked the fact that he had been placed in a position where there was a reasonably foreseeable risk of physical injury and he was therefore a primary victim.
Counsel for the claimant, argued that HHJ Tetlow had wrongly failed to consider whether he was a primary or secondary victim having accepted that the claimant had suffered a clinical psychiatric condition leading to a physical injury in the form of a stroke as a result of the defendant’s negligence. Had the judge done so, he would have been bound by Page v Smith to conclude that he was a primary victim since the defendant should have foreseen the possibility of some physical injury. Counsel criticised the judge’s reliance on the notion that the claimant had to prove not only that he had been exposed to a risk of physical injury from being assaulted by the suspected criminals but also that an ‘event’ in the form of such an assault had actually taken place. It was argued on behalf of the claimant that the fact that the anticipated assault did not actually take place is immaterial since physical injury was reasonably foreseeable in the circumstances, rendering the claimant a primary victim. In short, hindsight is no defence where the victim is a primary victim.
Counsel for the defendant accepted that the defendant owed a duty of protection whether from physical or psychiatric injury but argued that this duty only becomes actionable in the event of criminals actually causing either or both forms of injury. However, there was no such event here, “simply the claimed effect of stress upon Mr Donachie’s body” and, accordingly there was no foreseeable risk of injury of any sort. Counsel submitted that the job of a policeman is, by its very nature, stressful but the defendant could reasonably expect a certain fortitude from the claimant, an experienced officer, in the face of physical dangers to which his job exposed him. It was argued that it was only if there could be said to have been reasonable foreseeability of physical injury from the defendant’s breach of duty in relation to the defective batteries, that the Page v Smith rule would come into play. Counsel stated that there was a risk of physical injury to any officers engaged on such tagging duties, even if the batteries were not defective but that this was a risk that went with the job. The question was whether it could be said that there was a reasonable foreseeability that the risk was materially increased by the provision of defective batteries in the sense of exposing the claimant to imminent physical harm, as distinct from ‘manageable’ or ‘controllable risk’ of such harm. If not, such foreseeability could only relate to psychiatric injury. The tagging operation was not, counsel submitted, one that involved a risk of such imminent physical danger as to constitute an ‘event’.
At first instance, HHJ Tetlow expressly found that it was reasonably foreseeable that, as a result of the malfunction of the batteries, the existing small risk in the operation would become considerably greater and the consequent stress to the claimant severe or extreme. HHJ Tetlow stated that ““the increase in the risk of physical injury due to faulty batteries prolonging the time necessarily to be spent under the target vehicle was foreseeable. Each journey to the car increased the risk of discovery and assault”. Auld LJ saw no basis to alter this finding and rejected the argument that the claimant had to prove a reasonable foreseeability of imminent physical harm as opposed to exposure to manageable or controlled risk of harm.
Auld LJ determined that the claimant was a primary victim, there was a reasonable foreseeability of physical injury and, consequently, it was not necessary to prove involvement in an event in the form of an assault or otherwise. He went on to state that had it been necessary to look for an event sufficient to enable the claimant to rely as a primary victim on reasonable foreseeability of psychiatric, as distinct from physical injury, he would have been sympathetic with the submission on behalf of the claimant that the circumstances in which he had been placed as a police officer together with his fear, arising as a result of those circumstances, of physical injury are indistinguishable in principle from occurrence of such injury. Auld LJ concluded that “there is all the difference in the world between a person like Mr Donachie put in such a position... and someone who happens to learn from afar and/or a significant time afterwards of an event in which he had no involvement, the discovery of which he claims to have caused him psychiatric injury.”
Next time we will look at a pure economic loss, another concept where the neighbour principle doesn’t work.
Don’t forget, no college next week. See you all on the 31st October.
Wednesday, October 11, 2006
Tuesday 10th October 2006
We began with a reminder of the two-part test from Anns v Merton B.C. [1978]. The questions to ask are:
(1) does the neighbour principle apply? If yes, there is a prima facie duty, unless
(2) there is a policy reason not to permit the claim.
One of the criticisms is that it appeared to enable the claimant to establish a prima facie duty of care very easily by reference to foreseeability of harm. The second stage presented the defendant with the task of producing policy reasons to convince the judge to reject or limit that duty.
Nowadays, it is generally agreed that in order to establish the existence of a duty of care a claimant needs to satisfy a three-part test:
NOTE: a judge will not necessarily refer to them all in the same case.
This “three-stage” test was approved in Caparo Industries v Dickman (1990). As an example, see the case of Jebson v MoD [2000].
We will now look to see what the terms mean, and decide whether they are interchangeable.
FORESEEABILITY means that the defendant should have foreseen some damage to the claimant at the time of his alleged negligent act or omission. The claimant must prove that damage to him was foreseeable: Bourhill v Young (1943). The claimant was descending from a tram when she heard a motor accident. She did not see the accident, but later saw blood on the road, suffered nervous shock and gave birth to a stillborn child. Although it was reasonably foreseeable that some people would suffer damage as a result of the defendant’s negligent driving, the claimants injury was not foreseeable as she was so far from the accident. She was therefore owed no duty of care. She could not base her action on a wrong done to someone else.
It is the foresight of the reasonable man, not that of the defendant. It is an objective one.
It was thought that if the damage to the claimant was foreseeable, there would also be proximity between the parties. This may still be the position where the foreseeable type of damage is physical damage (to person or property) and in such cases the courts may be more willing to recognise a duty of care.
Some judges regard policy as the proper province of Parliament, meaning that if the politicians don’t like the decisions that are made it is they (Parliament) that is in the best position to do something about it.
However, it is possible to identify several policy considerations which have been influential in the thinking of the judiciary, for example:
FLOODGATES. Allowing a new class of defendant to succeed could lead to an overwhelming number of cases. Consider the Hillsborough disaster and the Kings Cross fire. The potential for causing harm to many people in one single tortious event is high.
ALLOCATION OF RISK AND LOSS. Some losses can be covered easily by insurance cover (e.g. contents insurance) and insurance is compulsory in some risk-creating situations (e.g. third party motor insurance). Lots of newspapers take insurance against actions for defamation. There are examples that the court may well decide that the loss should lie where it could most easily have been insured against and may refuse to recognise a duty in tort to guard against that loss arising. Something of this argument can be seen in Spartan Steel Alloys where the claimants were denied recovery for their pure economic loss because business interruption insurance would have been available to them. We will cover the case later when considering a pure economic loss.
IMMUNITIES. Some enjoy total immunity, whilst others a partial immunity. What we are seeking is the reason why the state of affairs exists.
JUDGES: they are completely immune from suit when exercising their judicial functions. Why? If a judge falls asleep and fails to hear the evidence that proved your case, and thereby the action was lost, you couldn’t sue the judge. What you can always do, however, is appeal against the decision. It is for this reason that you can’t sue the judge.
BARRISTERS: Once upon a time a barrister was immune from suit for all his work in court, and the preparatory work for the case: Rondel v Wordsley (1969) (House of Lords). By use of the 1966 Practice Statement the House of Lords changed their minds in Hall v Simons [2000], and barristers are now fully liable for their negligence.
SOLICITORS: enjoy some immunity. Compare the cases of White v Jones (1995) where disappointed beneficiaries under a will were allowed to recover for the solicitor’s negligence with Hemmens v Wilson Browne (a Firm) 1993 where policy barred a claim where there was someone else in a position to regularise matters.
CROWN PROSECUTION SERVICE: in Elguzouli-Daf v MPC (1995) the Crown Prosecution Service had discontinued proceedings after a lengthy spell of custody. It was held that there is no general duty of care owed by the Crown Prosecution Service to a defendant, its central function would be inhibited by an imposition of duty.
EMERGENCY SERVICES: POLICE. The police enjoy a limited immunity from suit in negligence. A fine example is Hill v Chief Constable Of West Yorkshire (1988) where the mother of the last victim of the so-called “Yorkshire Ripper” argued that the police had failed to use reasonable care in apprehending the murderer of her daughter. Although it was foreseeable that the murderer would kill again if not caught, the House of Lords would not recognise a duty of care to such potential victims. To do so would restrict the exercise of police discretion in their investigations and would put them in a defensive frame of mind. Lord Templeman pointed out that if a duty was recognised “every citizen will be able to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings successfully or unsuccessfully, would distract the policeman from his duties.”
Different considerations were apparent in Swinney v Chief Constable Of Northumbria Police (1996) in which it was held by the Court of Appeal that a duty did arise to take care for the safety of an informant who had provided the police with valuable information about a violent criminal. In this situation the public interest was best served by encouraging those with information to come forward. The House of Lords was to later reverse this decision.
A rare example of success can be found in Costello v Chief Constable Of Northumbria Police (1999).
FIRE SERVICE. Generally they enjoy immunity, for otherwise they would be laid open to many thousands of claims. However, in Capital And Counties plc v Hampshire C.C. (1997) it was held that where the fire service take total control of a situation they will owe a duty of care.
COASTGUARD. The above decision was followed in a case involving the coast guard: Oll v Secretary Of State For Transport (1997).
AMBULANCE. The ambulance service are seen in a different light to the other emergency services. In Kent v Griffiths (#2) [2000] it was held that where the service accept an emergency call they must respond within a reasonable time, unless there were a conflict of priorities.
STATUTORY AUTHORITY. We will look at this as a separate tort later. Suffice to say for now that it is very difficult, if nigh on impossible, to sue a body for breaching a statutory duty. See, for example: Goodes v East Sussex C.C. [2000].
(1) does the neighbour principle apply? If yes, there is a prima facie duty, unless
(2) there is a policy reason not to permit the claim.
One of the criticisms is that it appeared to enable the claimant to establish a prima facie duty of care very easily by reference to foreseeability of harm. The second stage presented the defendant with the task of producing policy reasons to convince the judge to reject or limit that duty.
Nowadays, it is generally agreed that in order to establish the existence of a duty of care a claimant needs to satisfy a three-part test:
- foreseeability of damage
- a relationship of “proximity” between the defendant and claimant
- it must be “fair, just and reasonable” to impose a duty
NOTE: a judge will not necessarily refer to them all in the same case.
This “three-stage” test was approved in Caparo Industries v Dickman (1990). As an example, see the case of Jebson v MoD [2000].
We will now look to see what the terms mean, and decide whether they are interchangeable.
FORESEEABILITY means that the defendant should have foreseen some damage to the claimant at the time of his alleged negligent act or omission. The claimant must prove that damage to him was foreseeable: Bourhill v Young (1943). The claimant was descending from a tram when she heard a motor accident. She did not see the accident, but later saw blood on the road, suffered nervous shock and gave birth to a stillborn child. Although it was reasonably foreseeable that some people would suffer damage as a result of the defendant’s negligent driving, the claimants injury was not foreseeable as she was so far from the accident. She was therefore owed no duty of care. She could not base her action on a wrong done to someone else.
It is the foresight of the reasonable man, not that of the defendant. It is an objective one.
It was thought that if the damage to the claimant was foreseeable, there would also be proximity between the parties. This may still be the position where the foreseeable type of damage is physical damage (to person or property) and in such cases the courts may be more willing to recognise a duty of care.
Some judges regard policy as the proper province of Parliament, meaning that if the politicians don’t like the decisions that are made it is they (Parliament) that is in the best position to do something about it.
However, it is possible to identify several policy considerations which have been influential in the thinking of the judiciary, for example:
FLOODGATES. Allowing a new class of defendant to succeed could lead to an overwhelming number of cases. Consider the Hillsborough disaster and the Kings Cross fire. The potential for causing harm to many people in one single tortious event is high.
ALLOCATION OF RISK AND LOSS. Some losses can be covered easily by insurance cover (e.g. contents insurance) and insurance is compulsory in some risk-creating situations (e.g. third party motor insurance). Lots of newspapers take insurance against actions for defamation. There are examples that the court may well decide that the loss should lie where it could most easily have been insured against and may refuse to recognise a duty in tort to guard against that loss arising. Something of this argument can be seen in Spartan Steel Alloys where the claimants were denied recovery for their pure economic loss because business interruption insurance would have been available to them. We will cover the case later when considering a pure economic loss.
IMMUNITIES. Some enjoy total immunity, whilst others a partial immunity. What we are seeking is the reason why the state of affairs exists.
JUDGES: they are completely immune from suit when exercising their judicial functions. Why? If a judge falls asleep and fails to hear the evidence that proved your case, and thereby the action was lost, you couldn’t sue the judge. What you can always do, however, is appeal against the decision. It is for this reason that you can’t sue the judge.
BARRISTERS: Once upon a time a barrister was immune from suit for all his work in court, and the preparatory work for the case: Rondel v Wordsley (1969) (House of Lords). By use of the 1966 Practice Statement the House of Lords changed their minds in Hall v Simons [2000], and barristers are now fully liable for their negligence.
SOLICITORS: enjoy some immunity. Compare the cases of White v Jones (1995) where disappointed beneficiaries under a will were allowed to recover for the solicitor’s negligence with Hemmens v Wilson Browne (a Firm) 1993 where policy barred a claim where there was someone else in a position to regularise matters.
CROWN PROSECUTION SERVICE: in Elguzouli-Daf v MPC (1995) the Crown Prosecution Service had discontinued proceedings after a lengthy spell of custody. It was held that there is no general duty of care owed by the Crown Prosecution Service to a defendant, its central function would be inhibited by an imposition of duty.
EMERGENCY SERVICES: POLICE. The police enjoy a limited immunity from suit in negligence. A fine example is Hill v Chief Constable Of West Yorkshire (1988) where the mother of the last victim of the so-called “Yorkshire Ripper” argued that the police had failed to use reasonable care in apprehending the murderer of her daughter. Although it was foreseeable that the murderer would kill again if not caught, the House of Lords would not recognise a duty of care to such potential victims. To do so would restrict the exercise of police discretion in their investigations and would put them in a defensive frame of mind. Lord Templeman pointed out that if a duty was recognised “every citizen will be able to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings successfully or unsuccessfully, would distract the policeman from his duties.”
Different considerations were apparent in Swinney v Chief Constable Of Northumbria Police (1996) in which it was held by the Court of Appeal that a duty did arise to take care for the safety of an informant who had provided the police with valuable information about a violent criminal. In this situation the public interest was best served by encouraging those with information to come forward. The House of Lords was to later reverse this decision.
A rare example of success can be found in Costello v Chief Constable Of Northumbria Police (1999).
FIRE SERVICE. Generally they enjoy immunity, for otherwise they would be laid open to many thousands of claims. However, in Capital And Counties plc v Hampshire C.C. (1997) it was held that where the fire service take total control of a situation they will owe a duty of care.
COASTGUARD. The above decision was followed in a case involving the coast guard: Oll v Secretary Of State For Transport (1997).
AMBULANCE. The ambulance service are seen in a different light to the other emergency services. In Kent v Griffiths (#2) [2000] it was held that where the service accept an emergency call they must respond within a reasonable time, unless there were a conflict of priorities.
STATUTORY AUTHORITY. We will look at this as a separate tort later. Suffice to say for now that it is very difficult, if nigh on impossible, to sue a body for breaching a statutory duty. See, for example: Goodes v East Sussex C.C. [2000].
Wednesday, October 04, 2006
Tuesday 3 October 2006
We continued our discussion on defences to battery with that of self-defence. This is available provided that reasonable force is used in defence of your person, your property, or another person. What is reasonable will depend on the circumstances of the case and the force used must be proportionate to the force offered: Revill v Newberry [1998]: Martin [2000].
We then turned to the third trespass to the person, i.e. false imprisonment. Here the defendant intentionally causes the claimants freedom of movement to be totally restrained without lawful justification. The tort does not require incarceration as such and may be committed by any unlawful detention, such as compelling a person to remain in a field by threatening them with a shotgun (this would also be an assault). The most common modern example is wrongful arrest by a police officer or store detective, so reference must be made to the powers of arrest under PACE.
Restraint must be total: Bird v Jones (1845). The claimant was prevented from crossing a bridge by a particular route. This was not false imprisonment as his restraint was not total.
The restraint will not be total if a person has a reasonable means of escape, such as stepping through a ground floor window. If the means of escape involves danger of physical injury, then it will not be reasonable to expect a person to use it, for example climbing out of a first floor window.
A person can be imprisoned without being aware, e.g. the claimant was asleep, drugged, or insane. Freedom of movement as such is protected. If knowledge is required then the tort protects against the mental effects of knowing that one is confined. Compare the cases of Herring v Boyle (1834) with Meering v Graham White Aviation (1919).
In Murray v Ministry Of Defence (1988) the House of Lords upheld the view in Meering, stating that knowledge was relevant to damages. This was an obiter statement.
Where there is no contractual or other legal duty to release the claimant, a failure to release a person is not false imprisonment. In Herd v Weardale Steel Co. (1915) miners ceased work and demanded to be taken to the surface. A refusal to do so by the employers was not false imprisonment as they were under no duty to return the men to the surface until the end of their shift.
Where a person enters the defendants’ premises subject to a condition of which he is or should be aware then the defendants are entitled to refuse to release him until he complies with those conditions, e.g. leave only through the indicated exit. In Robinson v Balmain Ferry Co. (1910) the claimant entered the defendant’s wharf intending to leave by ferry. When he realised that he had missed the ferry he attempted to leave by the turnstile without paying the required one penny. A refusal to allow him to leave was not false imprisonment. It was clearly stated on a notice board at the entrance that a penny was payable on exit from the wharf (usually after a return journey had been made).
No tort will be committed where the claimants detention can be justified by law, e.g. on arrest.
Briefly, following changes to PACE 1984 made in January 2006 the police now have extremely wide powers of arrest for any offence. The term used is ‘criminal offence’, but it is an all embracing term. A police officer may arrest any person where he has reasonable grounds to believe that the person is about to, is or has committed a criminal offence. In addition where he has only reasonable grounds to suspect that a criminal offence has been committed he may arrest any person who he has reasonable grounds to suspect to have committed it. This last, somewhat tortuous, power means that it is not necessarily the case that a criminal offence has been committed at all, the arrest will still be lawful.
The arrest requires a second ground to be satisfied, in that the arrest must be “necessary”. The times when this will apply are to be found in the old version of s25 PACE, and include where the person’s identity cannot be ascertained. Don’t bother learning the full list.
Upon arrest the officer must do three things, otherwise the arrest will be unlawful, and false imprisonment will occur. Upon arrest he must:
Civilian powers are limited to those committing or having committed an offence, but this excludes summary offences (the minor ones).
When judging the reasonableness of the grounds upon which a police officer makes an arrest without a warrant the House of Lords has stated that all the evidence should be weighed, including the source of the information, and the inferences drawn should be those that a reasonable man would make: O’Hara v Chief Constable of the RUC (1997) 1 ALL ER 129.
The arrested person must be handed over to a police officer within a reasonable time: Lewis v Times (1952), 60 minutes was okay.
There just about exists a rule from a case called Wilkinson v Downtown (1897), covering practical jokers. The defendant, as a practical joke, told the claimant that her husband had been in an accident and broken both legs. The claimant was awarded damages for the nervous shock which she suffered as a result.
This is not confined to the intentional causing of shock. Dress as a ghost to frighten someone who runs away and falls downstairs, will invite an action.
The decision hasn’t led to any significant claims, and the Protection From Harassment Act 1997 means it probably never will.
The Act came into force in June 1997. Section 3 provides for a civil remedy of damages to compensate for anxiety and financial loss in those circumstances where a breach of s1 has occurred or is apprehended.
Section 1 itself creates an (arrestable) offence of harassment, although the concept of “harassment” is not fully defined. The offence consists of a course of conduct (including speech) on at least two occasions. The harasser is judged by what he knows, or ought to know, will be conduct amounting to harassment of another.
Lau v DIP [2000]: the time between the two incidents may cause problems.
Hill [2001]: two incidents six months apart, with reconciliation in between, was not a course of conduct.
We then turned to the most important tort of all, the tort of negligence. We shall spend several weeks on this. In order to succeed in a negligence action, the claimant must prove that:
Duty relationships are well established, e.g. between one road user and another; doctor to patient; employer to employee; manufacturer to those affected by their products. Most of these have arisen through court decisions, Parliament playing almost no part.
I spoke earlier of certain differences between the law of contract and the law of tort - although both come under the umbrella of the “Law of Obligations”.
There has been a change of mood in the judiciary over the years, original thinking being that where a contract existed there was no possibility of a tort action. Nowadays, that isn’t the case. For example: GESSO v Maroon (1976), an oil company sued in contract and the defendant counter-claimed in negligence.
In favour of concurrent liability was expressed by Lord Goff in Henderson v Merit Syndicates Ltd (1994) in the House of Lords. He could find no “sound basis for a rule which automatically restricts the claimant to either a tortious or a contractual remedy.” He thought the result ‘untidy’ but thought that the claimant should be able to take advantage of the remedy which is most advantageous to him. Whilst this isn’t universally approved of, it is the accepted view.
There are, of course, tests for the existence of a duty of care, and our starting point is the evergreen Donohue v Stevenson (1932). The appellant brought an action against the manufacturer of ginger beer bought for her by a friend at Michelle’s café in Paisley. She drank some of the ginger beer, and when the rest was poured into her glass she saw the remains of a decomposed snail floating from the opaque bottle into her glass. She claimed to have suffered gastro-enteritis and nervous shock as a result of drinking some of the ginger beer and the nauseating sight of the foreign body in her drink. The case proceeded to the House of Lords to decide on the preliminary point as to whether an action existed in tort irrespective of the fact that that there was no contract between her and the manufacturer. The House of Lords (by a bare majority of three to two) laid down that a manufacturer of products owed a duty to take reasonable care to the ultimate consumer of the product. This is known as the “narrow rule” and will be considered later. Lord Atkins also stated his famous “neighbour principle test” (known as the “wide rule”) as a device to determine when a duty of care is owed. He said:
“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.”
No-one expects you to remember this word-for-word, but you do need to have a good idea of its content.
Why is the case so important?:
This test based on reasonable foreseeability of damage did not find immediate acceptance with the judiciary and expansion of duty areas was limited until the 1960s.
Home Office v Dorset Yacht Co. Ltd (1970), the House of Lords expressly approved Lord Atkins’ statement. Lord Reid said that although the neighbour principle would require qualification to meet new circumstances (judge’s can never leave well alone!), the time had come to say that it ought to apply unless there is some valid explanation for its exclusion.
This approval was taken up by the House of Lords in Ann’s v Merton London Borough Council (1978) AC 728 (now expressly overruled, although still the law in New Zealand)). Lord Wilberforce stated that the question has to be approached in two stages:
What it means is:
This two-stage test led to a considerable expansion in the areas covered by negligence, in particular took the tort into the area of recovery of pure economic loss caused by negligent conduct which had previously been thought to be the province of contract the law. Criticism was to follow, and eventually the case was overruled by the House of Lords in Murphy v Brentwood DC (1990), which we shall consider later.
In Hedley Byrne & Co. Ltd v Heller & Partners Ltd (1964), the House of Lords expanded negligence to include liability for negligent misstatement leading to economic loss. The original neighbour test was rejected, and a caveat introduced that required a special relationship between the parties. We’ll cover this shortly. Safe to say for now: it seems that you could recover an economic loss for a negligent misstatement, but not a negligent act.
Until next week…
We then turned to the third trespass to the person, i.e. false imprisonment. Here the defendant intentionally causes the claimants freedom of movement to be totally restrained without lawful justification. The tort does not require incarceration as such and may be committed by any unlawful detention, such as compelling a person to remain in a field by threatening them with a shotgun (this would also be an assault). The most common modern example is wrongful arrest by a police officer or store detective, so reference must be made to the powers of arrest under PACE.
Restraint must be total: Bird v Jones (1845). The claimant was prevented from crossing a bridge by a particular route. This was not false imprisonment as his restraint was not total.
The restraint will not be total if a person has a reasonable means of escape, such as stepping through a ground floor window. If the means of escape involves danger of physical injury, then it will not be reasonable to expect a person to use it, for example climbing out of a first floor window.
A person can be imprisoned without being aware, e.g. the claimant was asleep, drugged, or insane. Freedom of movement as such is protected. If knowledge is required then the tort protects against the mental effects of knowing that one is confined. Compare the cases of Herring v Boyle (1834) with Meering v Graham White Aviation (1919).
In Murray v Ministry Of Defence (1988) the House of Lords upheld the view in Meering, stating that knowledge was relevant to damages. This was an obiter statement.
Where there is no contractual or other legal duty to release the claimant, a failure to release a person is not false imprisonment. In Herd v Weardale Steel Co. (1915) miners ceased work and demanded to be taken to the surface. A refusal to do so by the employers was not false imprisonment as they were under no duty to return the men to the surface until the end of their shift.
Where a person enters the defendants’ premises subject to a condition of which he is or should be aware then the defendants are entitled to refuse to release him until he complies with those conditions, e.g. leave only through the indicated exit. In Robinson v Balmain Ferry Co. (1910) the claimant entered the defendant’s wharf intending to leave by ferry. When he realised that he had missed the ferry he attempted to leave by the turnstile without paying the required one penny. A refusal to allow him to leave was not false imprisonment. It was clearly stated on a notice board at the entrance that a penny was payable on exit from the wharf (usually after a return journey had been made).
No tort will be committed where the claimants detention can be justified by law, e.g. on arrest.
Briefly, following changes to PACE 1984 made in January 2006 the police now have extremely wide powers of arrest for any offence. The term used is ‘criminal offence’, but it is an all embracing term. A police officer may arrest any person where he has reasonable grounds to believe that the person is about to, is or has committed a criminal offence. In addition where he has only reasonable grounds to suspect that a criminal offence has been committed he may arrest any person who he has reasonable grounds to suspect to have committed it. This last, somewhat tortuous, power means that it is not necessarily the case that a criminal offence has been committed at all, the arrest will still be lawful.
The arrest requires a second ground to be satisfied, in that the arrest must be “necessary”. The times when this will apply are to be found in the old version of s25 PACE, and include where the person’s identity cannot be ascertained. Don’t bother learning the full list.
Upon arrest the officer must do three things, otherwise the arrest will be unlawful, and false imprisonment will occur. Upon arrest he must:
- inform the detained person of the fact of his arrest (“you’re nicked will do)
- inform him of the reason for the arrest (simple language only)
- caution him. Minor deviations to the wording of the official caution are permitted
Civilian powers are limited to those committing or having committed an offence, but this excludes summary offences (the minor ones).
When judging the reasonableness of the grounds upon which a police officer makes an arrest without a warrant the House of Lords has stated that all the evidence should be weighed, including the source of the information, and the inferences drawn should be those that a reasonable man would make: O’Hara v Chief Constable of the RUC (1997) 1 ALL ER 129.
The arrested person must be handed over to a police officer within a reasonable time: Lewis v Times (1952), 60 minutes was okay.
There just about exists a rule from a case called Wilkinson v Downtown (1897), covering practical jokers. The defendant, as a practical joke, told the claimant that her husband had been in an accident and broken both legs. The claimant was awarded damages for the nervous shock which she suffered as a result.
This is not confined to the intentional causing of shock. Dress as a ghost to frighten someone who runs away and falls downstairs, will invite an action.
The decision hasn’t led to any significant claims, and the Protection From Harassment Act 1997 means it probably never will.
The Act came into force in June 1997. Section 3 provides for a civil remedy of damages to compensate for anxiety and financial loss in those circumstances where a breach of s1 has occurred or is apprehended.
Section 1 itself creates an (arrestable) offence of harassment, although the concept of “harassment” is not fully defined. The offence consists of a course of conduct (including speech) on at least two occasions. The harasser is judged by what he knows, or ought to know, will be conduct amounting to harassment of another.
Lau v DIP [2000]: the time between the two incidents may cause problems.
Hill [2001]: two incidents six months apart, with reconciliation in between, was not a course of conduct.
We then turned to the most important tort of all, the tort of negligence. We shall spend several weeks on this. In order to succeed in a negligence action, the claimant must prove that:
- the defendant owed him a duty of care;
- the defendant was in breach of that duty;
- the claimant suffered damage, which was not too remote;
- the absence of a defence, e.g. contributory negligence or volenti non fit injuria.
Duty relationships are well established, e.g. between one road user and another; doctor to patient; employer to employee; manufacturer to those affected by their products. Most of these have arisen through court decisions, Parliament playing almost no part.
I spoke earlier of certain differences between the law of contract and the law of tort - although both come under the umbrella of the “Law of Obligations”.
There has been a change of mood in the judiciary over the years, original thinking being that where a contract existed there was no possibility of a tort action. Nowadays, that isn’t the case. For example: GESSO v Maroon (1976), an oil company sued in contract and the defendant counter-claimed in negligence.
In favour of concurrent liability was expressed by Lord Goff in Henderson v Merit Syndicates Ltd (1994) in the House of Lords. He could find no “sound basis for a rule which automatically restricts the claimant to either a tortious or a contractual remedy.” He thought the result ‘untidy’ but thought that the claimant should be able to take advantage of the remedy which is most advantageous to him. Whilst this isn’t universally approved of, it is the accepted view.
There are, of course, tests for the existence of a duty of care, and our starting point is the evergreen Donohue v Stevenson (1932). The appellant brought an action against the manufacturer of ginger beer bought for her by a friend at Michelle’s café in Paisley. She drank some of the ginger beer, and when the rest was poured into her glass she saw the remains of a decomposed snail floating from the opaque bottle into her glass. She claimed to have suffered gastro-enteritis and nervous shock as a result of drinking some of the ginger beer and the nauseating sight of the foreign body in her drink. The case proceeded to the House of Lords to decide on the preliminary point as to whether an action existed in tort irrespective of the fact that that there was no contract between her and the manufacturer. The House of Lords (by a bare majority of three to two) laid down that a manufacturer of products owed a duty to take reasonable care to the ultimate consumer of the product. This is known as the “narrow rule” and will be considered later. Lord Atkins also stated his famous “neighbour principle test” (known as the “wide rule”) as a device to determine when a duty of care is owed. He said:
“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.”
No-one expects you to remember this word-for-word, but you do need to have a good idea of its content.
Why is the case so important?:
- It destroyed the privet fallacy, an idea that where a defendant was liable to one person for a breach of contract, he could not be liable to a third party person in tort for the same act or omission.
- A new category of duty was created; that of manufacturers of dangerous products to their ultimate consumers - the ‘narrow rule’. Note that the defect must cause damage, poor quality is a matter of contract.
- Lord Atkins stated his neighbour test for determining whether a duty of care existed - the ‘wide rule’.
This test based on reasonable foreseeability of damage did not find immediate acceptance with the judiciary and expansion of duty areas was limited until the 1960s.
Home Office v Dorset Yacht Co. Ltd (1970), the House of Lords expressly approved Lord Atkins’ statement. Lord Reid said that although the neighbour principle would require qualification to meet new circumstances (judge’s can never leave well alone!), the time had come to say that it ought to apply unless there is some valid explanation for its exclusion.
This approval was taken up by the House of Lords in Ann’s v Merton London Borough Council (1978) AC 728 (now expressly overruled, although still the law in New Zealand)). Lord Wilberforce stated that the question has to be approached in two stages:
- whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty arises. (proximity)
- if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise. (considerations to negate)
What it means is:
- does the neighbour principle apply?
- if yes, is there any reason for not allowing the claim?
This two-stage test led to a considerable expansion in the areas covered by negligence, in particular took the tort into the area of recovery of pure economic loss caused by negligent conduct which had previously been thought to be the province of contract the law. Criticism was to follow, and eventually the case was overruled by the House of Lords in Murphy v Brentwood DC (1990), which we shall consider later.
In Hedley Byrne & Co. Ltd v Heller & Partners Ltd (1964), the House of Lords expanded negligence to include liability for negligent misstatement leading to economic loss. The original neighbour test was rejected, and a caveat introduced that required a special relationship between the parties. We’ll cover this shortly. Safe to say for now: it seems that you could recover an economic loss for a negligent misstatement, but not a negligent act.
Until next week…
