TORT LAW SUMMATIVE
In this essay I will be considering the claims of Bill, PC Kean and Edward who are all seeking damages in Negligence for psychiatric illness.
BILL V POWERPLUS PLC
To begin with, the issue here is whether or not Bill can seek damages for negligence for psychiatric illness. As shown in Chadwick v British Railway Board1, to claim for psychiatric illness, the claimant has to show a recognised medical condition usually caused by shock. In this case, Bill’s depression is a recognised medical condition induced by the shock of Annie dying in his arms. In order to prove this however, the claim must meet the requirements for negligence2. That is, the defendant has to we the claimant a duty of care, the defendant must be in breach of that duty and the breach must have been a sufficient cause.
DUTY OF CARE
The defendant has to owe the claimant a duty of care3. Duty of care is interestingly tedious to show in cases of psychiatric harm, as duty is usually owed if the claimant could be reasonably foreseeable as a victim.
There are two major classifications for a victims namely; primary victim and secondary victim. In Page v Smith (1996)4 a primary victim is a victim who was directly involved in the accident and at risk of physical harm, regardless of whether or not it was actually suffered. As long as physical harm is reasonably foreseeable, showing foreseeability of psychiatric harm is unnecessary5. People that assist in an accident are secondary victims, because they usually do not know the victims6. However, due to their response to the cry for help, they are treated differently7. Lord Steyn, in White v Chief Constable of South Yorkshire8 Police established that a rescuer could only be considered as a primary victim if he ‘objectively exposed himself to a danger or reasonably believed he was doing so’. The courts have usually concluded that defendants don’t just owe a duty of care to those who they endangered first by their negligent actions, but also to rescuers who choose to rescue9.
In this case, Bill is primary victim as rescuer. It is reasonably foreseeable for a person, who is exposed to the negligent act of using faulty gas valves, to be at risk of suffering a physical harm. He ran back into the house help and assist Annie after the explosion. The house was devastated, and Annie was on fire, he proceeded to extinguish the fire, knowing it could burn him at any time, which would make the situation objectively dangerous. Although, he suffered no physical damage, the risk of it, is sufficient to make him a primary victim. The fact that it was the negligent act of fitting a faulty gas valve, that endangered Bill, establishes a duty of care between Power plus and Bill.
In conclusion it can be said, that a duty of care is owed by Power plus to Bill, due to the fact that he is a primary victim as a rescuer. It is important to note however, that due to policy reasons, the courts can be quite reluctant to find duty of care as rescuer, as shown in Alcock10. This is due to the fact that, they wouldn’t want to open floodgates for claims. However in White11, the courts established that rescuers would only be considered primary victims if, they were objectively exposed to danger, even if the rescuer wasn’t necessarily of this danger.
BREACH OF THE DUTY OF CARE
The next thing to consider is that there needs to be a breach of that duty. The claimant needs to show that the defendant was in breach of that duty. There can only be a breach, if the defendant acts below the standards set by law12, as seen in Blyth v Birmingham Waterworks13. In other words, the defendant has to be at fault.
When Annie and Bill were called out to fix the gas leak, they found an old pipe which needed replacing. The fact that Power plus had installed a faulty gas valve in a house with an old gas pipe, is standard that falls well below the reasonable standards expected by a gas maintenance company. It is their job to maintain gas infrastructure within a home and install working gas valves without faults.
Therefore, in conclusion, Power plus have simply breached their duty of care, as they had installed a faulty gas valve, which was conduct that was well below the standard expected of Gas Company.
The final element needed for a claim to succeed is causation14, in other words, the damage the claimant suffered as a result of the breach of duty by the defendant. The defendant must have factually caused the damage, as shown in Barnett v Chelsea15. In addition, the defendant must also have legally caused the claimant’s damage as seen in Mcghee v NCB16, without being too remote.
In application, but for the negligence of Power plus in breaching their duty of care, would Bill’s psychiatric harm have occurred? In other words, but for exposing Bill as a rescuer, to danger, by installing faulty gas valves, would Bill’s psychiatric harm have occurred? The simple is yes. If Power plus had done their job by making sure they installed proper gas valves, then Bill’s psychiatric harm caused by the shock from trying to save Annie would not have occurred. In addition, Power plus’s installation of faulty gas valves, did materially contribute, as it led to a dangerous situation for Bill, who they sent to do his job.
Finally, psychiatric harm must not be too remote. To prove this we must consult Wagmound No117, which says that the damage must foreseeable. If it is, then the defendant will be liable for all damages, regardless of the extent. When applied to this, it is reasonable to see that psychiatric harm could occur, as an explosion could lead to all sorts of trauma, be it physical or psychological. Although, the defendants could argue that they had reasonably foreseen that their negligence could cause the claimant some psychiatric harm, therefore their liability should be limited to the cost of the time taken of work18. However, when the egg/thin skull rule as seen in smith v leech brain, is applied, the defendant must take the victim as he finds him19. In other words, regardless of whether or not he already had depression prior to the accident, they would still be held liable
Therefore, in regards to Bill, it is quite clear that Powerplus’s breach of their duty factually and legally caused Bill’s psychiatric harm. It is also safe to conclude that the damage is not too remote.
In conclusion, having proven that Power plus owed Bill a duty of care, power plus was in breach of that duty, and breach was the not too remote cause of Bill’s damages, it is safe to conclude that Bill will be able to sue for Negligence for Psychiatric illness and succeed. Bill will be able to claim general damages as shown in Bennett v Greenland Houchen & Co20.
PC KEANE V POWERPLUS PLC
To begin with, the issue here is whether or not PC Keane can seek damages for negligence for psychiatric illness. To claim for psychiatric illness, the claimant must show a recognised medical condition usually induced by shock21. In this case PC Keane’s depression is a recognised medical condition induced by the shock of Annie dying in his arms. In order to prove this however, the claim must fulfil the certain requirements.
DUTY OF CARE
The defendant must owe the claimant a duty of care. Duty is usually owed if the claimant could be reasonably foreseeable as a victim22.
It has generally been established, that the defendant would usually owe a duty of care, to those, that would respond to an emergency23. There are two major classifications for a victims namely; primary victim and secondary victim. In Page v Smith (1996)24 a primary victim is a victim who was directly involved in the accident and at risk of physical harm, regardless of whether or not it was actually suffered. In this case, PC Keane does not fulfil the requirements of a primary victim, as he was not directly involved in the accident, and according to White25, he could not be a rescuer, as he was not within the zone of danger. There was no risk of harm to him, as the fire had been extinguished, and the situation was no longer objectively dangerous.
Therefore, the only other way he could claim is a secondary victim. “A secondary victim is a victim who suffers psychiatric injury as a result of witnessing someone else being harmed or endangered”26. There are certain requirements that must be fulfilled for a secondary victim27. These requirements include; psychiatric harm must be foreseeable as seen in Mcloughlin v O’Brian (1982)28, the relationship between the victim and claimant must have been a close “of love and affection” as shown in Alcock v Chief Constable of South Yorkshire Police (1992)29, a proximity in time and space30, and finally there must be proximity of perception, as seen in Sion v Hampstead Health Authority31.
The claimant must prove that psychiatric illness was reasonably foreseeable. This connotes showing that a person of “ordinary fortitude” or “customary phlegm” might have suffered psychiatric illness in the same circumstances32. When the facts are considered, it is reasonably foreseeable that a police officer or a person responding to an emergency call of an explosion, where he witnesses distressing and extreme circumstances, would suffer a psychiatric illness. This can be supported by consulting Bourhill v Young33.
However, to find duty of care as a secondary victim, we would need more than just reasonable foreseeability34. We would need to consider the relationship between Annie the victim and PC Keane. The only relationship PC Keane has with Annie, is the relationship between a police officer and victim, which as a matter of fact, does not fall under the class of persons whose claim would be recognised as a result of their relationship with the victim. The class that would be recognised is that of “love and affection”. There, is no evidence to show that this existed. This is shown in Alcock35, where people who tried to claim psychiatric injury from seeing people die, saw their claim rejected, due to the fact that they did not have the requirement of a close relationship of “love and affection “with the “immediate” victim. The courts require that the close relationship must at least mirror that between a spouse, husband, parent or child36.
The next requirement would be that of proximity in time and space. The Lords in Alcock, said that succeeding as a secondary victim requires the defendant to show a high degree of proximity to the accident in time and space37. In other words, they have to either witness the accident as it goes on, or witness its immediate aftermath. PC Keane, did not witness the accident, however he did witness a burnt Anna literally dying in Bill’s arms. In other words, he did witness the immediate aftermath. Therefore, this would suffice, as meeting the requirement, as he was within proximity in time and space.
The last requirement to meet is that there must be a proximity of perception38. In other words, as Lord Jauncey put it in Alcock39 “. The means by which the shock is caused constitutes a second control, although in these appeals I find it difficult to separate this from Proximity.” This is similar to proximity in time and space but the courts added “sudden shock40” to it. In other words, as said in Alcock41, “the psychiatric illness in question must result from the sudden psychological impact of, witnessing a single event or in its immediate aftermath”. When we consider the facts, we can find that the depression could be said to have resulted from the traumatic psychological impact of seeing a burnt Annie, being comforted and eventually dying in Bill’s arm.
In conclusion, however, due to the fact, that PC Keane did not fulfil the requirement of a close relationship with the victim of “love and affection”, we cannot find duty of care. If duty of care cannot be found, Power Plus cannot be held to liable; as the courts would require all the elements for negligence to be fulfilled before liability can be found. Therefore, PC Keane’s claim would fail.
EDWARD V POWERPLUS PLC
The issue here is whether Edward can claim damages in negligence for psychiatric harm. To prove this, Edward must show that he is suffering from a recognised medical condition usually induced by shock. This is a basic requirement and it is proven in Alcock42 where Lord Ackner says “the law gives no damages if the psychiatric injury was not induced by shock. Psychiatric illnesses caused in other ways, such as from the experience of having to cope with the deprivation consequent upon the death of a loved one, attract no damages”.
When the facts are applied, we find that it needs to be a recognised psychiatric harm. As shown in Hicks v Chief constable of South Yorkshire Police(1992)43, the law does not regard grief or anxiety , which is the psychiatric effect Edward experienced, as a recognised psychiatric harm.
It is possible to note that, although with the facts presented, had he suffered from a recognised psychiatric illness, we would have had to identify what sort of victim he was. However, the first requirement is that the psychological harm must be a medically recognised one44. Overwhelming grief is not a medically recognised. Although, grief was seen to be recognised as a medically recognised illness in Kralj v Mcgrath45, this will not apply to this case, as the claimant in that case suffered from “Pathological grief”, which is a medically recognised.
Therefore, due to the fact that all Edward suffered was just grief, he will not be able to claim in negligence for psychiatric harm, due to the fact that he was not suffering a recognisable psychiatric harm.