Liability in negligence for injury to people and damage to property: Negligence - Psychiatric Damage

What is Psychiatric Damage?

• Injury to the minds rather than the body
• Sometimes referred to as nervous shock
• Claimants must show using medical evidence that they have a recognised psychiatric injury
• Claimants will not succeed in a claim for damages for normal grief or distress

Primary and Secondary Victims

• A primary victim is:
• a person who either suffers physical injury as a result of another person's negligence OR
• where it was reasonably foreseeable that he/she could have been physically injured as a result of another person's negligence and as a result he/she has suffered a psychiatric injury (e.g a person is involved in a car accident and receives no physical injuries but develops a serious psychiatric condition)
• A secondary victim is:
• A person who suffers psychiatric injury as a result of another person's negligence but was not exposed to danger. There are several other conditions which need to be met to be classified as a secondary victim

Alcock v Chief Constable of South Yorkshire Police (1992)

• This case concerned claims made by ten plaintiffs brought against the South Yorkshire Police
• All ten claimed damages for nervous shock resulting in psychiatric illness which they alleged was caused by the experiences inflicted on them by the Hillsborough disaster

Was Robert Alcock a Secondary Victim?

• Robert Alcock lost his brother-in-law. He was in the West Stand with his nephew, the brother-in-law's son. He witnessed the scenes from the West Stand and was sickened by what he saw, but was not then concerned for his brother-in-law as, on the way to the match, he had swapped a terrace ticket which he held for a stand ticket. Unknown to the plaintiff, the brother-in-law had returned to the terrace. After the match the plaintiff left the ground for a rendezvous with the brother-in-law who did not arrive. He and his nephew became worried and searched without success. At about midnight they went to the mortuary where the plaintiff identified the body, which was blue with bruising. The sight appalled him.

Was Brian Harrison a Secondary Victim?

• Brian Harrison was at the ground. He was in the West Stand. He knew that both of his brothers would be in the pens behind the goal. He saw he horrifying scene as it developed and realised that the people in the two pens had been either killed or injured. When, six minutes after the start, the match was abandoned, he tried to find his brothers. He failed to do so. He stayed up all night waiting for news. At 6am he learned that his family were setting off for Sheffield. At 11am he was informed by telephone that both of his brothers were dead

Were Mr and Mrs Copoc Secondary Victims?

• Mr and Mrs Copoc lost their son. They saw the scenes on live television. Mrs Copoc was up all night. She was informed by police officers at 6am that her son was dead. Mr Copoc went to Sheffield at 4am with his nephew. He was informed at 6.10am of his son's death and later identified the body

Was Brenda Hennessey a Secondary Victim?

• Brenda Hennessey lost her brother. She had watched the television, and, although she realised that there had been deaths and injuries, she didn't worry because she believed her brother to be in a stand seat. She learned at 5pm that he had had a terrace ticket and at 6pm was informed of his death

• It was held that to be a secondary victim, a claimant must witness the event with his/her own unaided senses or hear the event in person or view its immediate aftermath. In other words the claimant must be in close physical proximity to the event
• This means that persons who witness the events on television, hear it on the radio, or are informed about the event from a third party are unlikely to be classified as secondary victims
• It was held that the claimant must usually show a sufficiently proximate relationship to the victim. This is often described as a "close tie of love and affection"
• Such ties are presumed to exist between parents and children, spouses and fiances
• This means other relations, including between siblings (e.g brothers) must prove their ties of love and affection

Sufficiently Proximate Relationship

• Lord Keith: "Brian Harrison lost two brothers, while Robert Alcock lost a brother-in-law and identified the body at the mortuary at midnight. In neither of these cases was there any evidence of particularly close ties of love or affection with the brothers or brother-in-law"
• Lord Ackner: "The quality of brotherly love is well known to differ widely - from Cain and Abel to David and Jonathan"
• Lord Jauncey: "Only two plaintiffs, Mr and Mrs Copoc, lost a son, but they saw the disaster on television...None of the other plaintiffs who lost relatives sought to establish that they had relationships of love and affection with a victim comparable to that of a spouse or parent."

• It was held that it must be proved that it was reasonably foreseeable that the claimant would suffer psychiatric damage
• The closer the tie between the plaintiff and the victim, the more likely it is that he would succeed in showing that the psychiatric damage was reasonably foreseeable
• This means that reasonable foreseeability depends on establishing a sufficiently proximate relationship

Unconnected Bystanders

• The House of Lords did hint that a person with no sufficiently proximate relationship may be classed as a secondary victim in exceptional circumstances
• Lord Keith: "The case of a bystander unconnected with the victims of an accident is difficult. Psychiatric injury to him would not ordinarily, in my view, be within the range of reasonable foreseeability, but could not perhaps be entirely excluded from it if the circumstances of a catastrophe occurring very close to him were particularly horrific

Liability in negligence for injury to people and damage to property: Negligence - Economic Loss

Introduction

The tort of negligence aims to pay damages for the injury or physical loss experienced by the claimant

Sometimes a claimant may wish to seek damages for those losses which are not physical injuries or physical losses but financial losses. These types of loss can usually only be seen on a balance sheet. These are known as economic losses

Examples of Economic Loss

1. A car crashes into the window of a shop because of the negligence of the driver. The shop owner will be entitled to damages to pay for the repair to the window. However, the shop owner has also experienced an economic loss in that he or she has lost profits while the shop is closed during the repair of the window
2. A man is killed by the negligence of his employer. His widow will have experienced an economic loss in the form of lost income that her husband would have contributed to the family

Two Types of Economic Loss

• Consequential Economic Loss - this is the economic loss that results from a physical injury such as your loss of income if you lose both your legs and can no longer work. This type of economic loss is usually recoverable
• Pure Economic Loss - this is all other types of economic loss that do not arise from a physical injury. This type of economic loss is not recoverable

Cases

• Murphy v Brentwood District Council [1991]
• The claimant had bought a house. When the building became unstable, the claimant had to sell the house at a considerable loss. He claimed that the local authority failed to inspect the foundations of the house adequately when it was being built. He sought to recover his loss from the local authority
• The House of Lords held that the loss was pure economic loss and was not recoverable
• Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973]
• The claimants had a factory in Birmingham, which obtained its electricity by a direct cable from the power station. The defendants were doing work on the ground with an excavator and negligently damaged the cable (they did not own the cable). As a result, the factory was deprived of electricity for a number of hours which caused physical damage to the factory's furnaces and metal, lost profit on the damaged metal and lost profit on the metal that was not melted during the time the electricity was off
• The Court of Appeal held that:
• For the physical damage to the factory's furnaces and metal, damages were payable because the damage was physical
• For the lost profit on the damaged metal, damages were payable as they were a direct consequence of the physical damage
• For the profit lost on the metal that was not melted during the time the electricity was off, damages were not payable because they constituted pure economic loss
• Caparo Industries PLC v Dickman (1990)
• Caparo purchased share in a company based on accounts which misrepresented the company's financial state
• Caparo brought an action against the auditors, claiming negligence
• Held - no duty of care owed as the auditor's report was required by law, and was not done at the request of Caparo for the specific purpose of the investment in/purchase of shares in the company concerned

Economic Loss and the Courts

• The courts have been reluctant to allow damages for pure economic loss as the potential claims could be limitless
• For instance, if every driver who negligently crashed his or her car on the motorway was held to be liable to employers for everyone of their employees being late for work because of the subsequent traffic jam, driving a car would become uninsurable

Liability in negligence for injury to people and damage to property: Negligence - Causation

Factual Causation

• Factual causation involves showing the link between the defendant's act or omission and the injury or loss caused. Not all factual causation involves legal causation

Legal Causation

• Legal causation refers to when the defendant is legally responsible for the injury or loss. For instance, for the defendant to be liable for an injury it must be shown that the reasonable person could foresee the injury occurring
• Bhamra v Dubb (2010):
• Mr Dubb catered for a Sikh wedding and knew full well that none of the food should've contained egg (it is forbidden to Sikhs)
• Some of the food contained egg, which Mr Bhamra had an anaphylactic reaction to, and died
• Mr Dubb was held to have breached his duty of care

Factual Causation: The Test

• The claimant must show a causal link between the defendant's act or omission and the damage caused
• The test used to establish the factual cause is sine qua non 
• Blyth v the Company of Proprietors of the Birmingham Waterworks (1856):
• Birmingham waterworks installed a water main on Blyth's street
• 25 years later it sprung a leak due to frost
• No evidence of negligence
• Held - no - Birmingham waterworks did not breach their duty, it was simply an accident. There was no causation.

Sine Qua Non

• Sin qua non is often referred to as the 'but for' test. In other words, it must be shown that but for the defendant's act or omission the claimant would not have suffered damage or loss
• In an examination, it is acceptable to refer to it as the 'but for' test

Cases

• Barnett v Chelsea & Kensington Hospital (1969):
• A man went to hospital but was turned away
• He later died of arsenic poisoning - he would not have lived even if a doctor had treated him
• The hospital was not liable
• The 'but for' test was applied. The failure of the hospital was not the cause of his death
• Bonnington Castings Ltd v Wardlaw (1965):
• Claimant became seriously ill after working for many years in dusty conditions in a foundry
• There were two types of dust in the foundry, only one of which should have been extracted by law
• It could not be proved which type of dust the claimant had inhaled
• The defendants were liable because although there were two possible causes of the claimant's illness, together, both kinds of dust contributed
• McGhee v National Coal Board (1973):
• The claimant was employed to clean out kilns
• No wash facilities were provided by the defendants
• The claimant developed dermatitis as a result of the brick dust clinging to his skin
• The House of Lords found the employer liable for negligence because they had materially increased the risk of injury by not providing wash facilities
• Lord Reid stated "I think that in cases like this we must take a broader view of causation"
• Fairchild v Glenhaven Funeral Services Ltd (2003)
• An employee (deceased) had been exposed to asbestos while working for several different employers
• He contracted a type of cancer that was caused by asbestos
• It could not be determined which employer was responsible
• The House of Lords decided that each of the employers who exposed him to asbestos was liable
• Each defendant had materially increased the risk of harm towards the claimant

Loss of Chance

• A 'loss of chance' refers to cases where the defendant's negligence deprived the claimant of the opportunity to avoid a loss. They usually involve medical negligence
• For instance a claimant has an illness from which he has a 70% chance of surviving if it is properly treated. His doctor negligently fails to diagnose the illness until the claimant's chance of survival has been reduced to 50%
• Hotson v East Berkshire Area Health Authority (1988):
• School boy fell out of a tree injuring his hip
• When he went to hospital they failed to diagnose the fracture, thereby reducing his chance of recovery, as without the negligence he would have had a 25% chance of full recovery
• As chance of recovery was reduced by less than 50%, no damages were awarded
• Gregg v Scott (2005)
• Claimant's cancerous lump was incorrectly diagnosed as benign, which led to a nine month delay in treatment
• Held - no damages - damages in a case like this will only be awarded if the initial prospects were 50% or higher

Novus Actus Interveniens

• "Novus Actus Interveniens" is Latin for "a new intervening act"

Breaking the Chain of Causation

• The link between the defendant's act or omission and the injury or loss suffered is often referred to as the chain of causation
• An intervening act may break the chain of causation meaning that the defendant is not liable for the injury or loss suffered by the claimant
• Knightley v Johns (1982)
• A car driven by Johns had overturned in a tunnel
• The senior police officer instructed a constable to ride his motorbike to the other side of the tunnel and close it
• The constable was instructed to drive the wrong way through the tunnel and subsequently was involved in a collision with a car travelling the opposite way
• The constable who was injured made claims of negligence against the driver of the overturned car, the senior police officer who instructed him and the Chief Constable
• It was held by the Court of Appeal that the senior police officer and Chief Constable were liable, but the driver of the overturned car was not
• The instructions from the senior officer, going through the tunnel on the wrong side and the collision with the oncoming car were a novus actus interveniens that had broken the chain of causation
• Baker v Willoughby (1969)
• Claimant was knocked down by the defendant's car
• As a result, he sustained a fairly severe injury in his left leg and ankle and as a result he had to take a lower paid job
• Three years later when the claimant was at work, two men came in and shot at him causing serious injuries to his already damaged leg which then had to be amputated
• It was argued by the defence that the defendant was only responsible for the claimant's injuries and losses leading up to when the claimant was shot in the leg
• They suggested that the shooting was a novus actus interveniens
• The House of Lords disagreed and held that the claimant's loss of earnings was a result of the original injury
• Jobling v Associated Dairies (1982)
• The claimant slipped at work due to his employer's negligence and injured his back which reduced his earning capacity
• Three years later he developed a spinal disease that was unrelated to the earlier accident
• The House of Lords decided that the spinal disease was a novus actus interveniens and the employer was not responsible for the losses incurred after the disease occurred
• Distinguished from Baker v Willoughby
• Mckew v Holland & Hannen & Cubitts (Scotland) Ltd (1969):
• The claimant suffered a leg injury as a result of his employer's negligence which left his left leg seriously injured
• He later fell when he tried to come down a steep flight of stairs with no handrail
• The House of Lords decided that the defendant was not liable for the second injury because his decision to come down the stairs without a handrail or assistance was a novus actus interveniens which had broken the chain of causation.

Remoteness