If it is held that the reasonable person would reasonably fore-see that Alfie’s mother would suffer nervous shock then Geoff will be held liable. If she is held to be unforeseeable then Bourhill v Young (1943) may apply. Page v Smith (1996) damages may be recoverable. This is presumably because rescuers have been held to be primary victims Looks like she does fore-fill the three stage test. She must also show that she isn’t normally susceptible to psychiatric illness.
Does Geoff owe a duty of care to Sigmund?
Sigmund could be a ‘passer by’ and if the court is satisfied that he was in ‘close proximity of the danger zone’. Cadwick v British Transport Commission
Sigmund is capable of becoming a ‘primary victim’ under the Alcock test. He hurt himself attempting to rescue Alfie from a danger created by Geoff. Geoff has broken the duty of care to Alfie so what the court will do in this case is extend the duty of care so it will then benefit Sigmund. If Geoff is found responsible for the injury to Alfie then Geoff will also be responsible for Sigmunds’s response to it. That is if Sigmund’s response to the accident isn’t considered unforeseeable, then Crossley v. Rawlinson (1982) will apply.
Geoff created a physical danger, Sigmund attempted to rescue Alfie, a primary victim and suffered a shock. Chadwick v. British Transport Commission (1967) Geoff may be liable for damages to Sigmund. Also Dunan v. British Coal Corp (1997) tells us that if Sigmnund can statisfy the test for a secondary victim he can recover damages. Sigmnund was present at the time of the accident, so damages available.
Frost v The Chief Constable would tell us that Sigmund could be classified as a rescuer as he assisted in the aftermath of the tragedy. It was felt that in white
Does Bushco owe a duty of care to Geoff?
A duty of care does exist. In an employer employee relationship. Geoff may be eligible for damages as harm was suffered under his employment. If Geoff is found to found to have gone outside the normal course of his employment Bushco won’t be held liable. Frost v The Chief Constable (1997) recognizes a duty of care to guard against all kinds of injury is to be owed to employees and recurs Geoff will only be able to claim as a secondary victim only if he comes under the Alcock test. The employer could be responsible for failing to protect Geoff from psychiatric harm.
Are the police in breach of their duty to Herbert? (Novus actus interveniens)
Is there a duty of care? The court will apply Caparo v Dickman (1990). For a successful action the Police must fail to conform to the standard of care test. (Alcock) Herbert must have suffered harm, i.e. damage, for which the law regards the defendant as responsible in whole or part (causation).
The police omitted to act; the damage was caused by a third party. A further factor of note is that, in some cases, the fact the D is a public body is argued as a reason for extending the duty, whilst in others it is argued as a reason for restricting it. East Suffolk Rivers Catchment Board v Kent [1941]. East Suffolk is now regarded as closer to some modern law than Anns.
Anns v Merton LBC, local authorities could be held liable for things such as a negligent failure to ensure compliance with by-laws, thereby causing the pure economic loss to remote parties.
In general, the concept of reasonable of injury by shock is no longer an adequate tool with which to determine liability for pure psychiatric injury. An element of caution is used in extending the limits of potential claimants.
Page v Smith (1995) illustrates the difference at law between primary (being intimately involved) and secondary victims (being an unwilling observer outside the said area of risk).
Page v Smith shows us that, if you are a primary victim, foresee ability of physical injury is sufficient to find a claim for any psychiatric injury which ensues from the accident. A secondary victim, on the other hand, would have to fulfill the Alcock control mechanisms (ante), and: Chadwick v British Transport Commission (1967)
Liability for employers exists for harm done to employees for harm suffered by them and liability for harm caused by them in a non-delegable duty. Geoff would have to show that Buscho unreasonably exposed him to the risk of post-traumatic stress disorder for a successful claim Walker v. Northumberland County Council
Liability could be available for failing to provide a ‘Hands Free Kit’ In the Cab. Paris v Stepney Borough Council (1951) But he was doing something that a reasonable employee shouldn’t have been doing, so this may harm his claim. Hudson v. Ridge Manufacturing Co. Ltd (1957)
The police assumed responsibility by responding and arriving at the scene. Where they intervene the will only be liable for any additional damage that they cause. Certain categories of operational negligence can’t be subjected to the common law claims for damages. Hill v. Constable of West Yorkshire (1989) would suggest a duty of care exists. A claim for negligence failed in Ancell v. Mcadaermott (1993)
The police arrive but take no steps to alert road users to the oil hazard. Herbert, driving at high speed, skids on the oil. His car mounts the pavement killing Mr Jones, a passer-by. United States v. Carroll Towing Co.
For a successful claim, the law must recognise the liability of Herbert in this situation. He must fail to conform to the standard of care test. The defendant, Mr Jones, must have suffered a harm (damage) for which the law regards the defendant as responsible in whole or part (causation).
We know that Herbert was driving at high speed, but would the accident still have an occurred if the oil have not been spilled and if the police had warmed about the oil? Herbert may be capable pf being in breach of his duty of care to Mr Jones. The courts held in McGhee v. National Coal Board that each one had materially increased the risk of injury, by their negligence, so each should have the burden of disproving the causal link.
Liability was available to a claimant when the actions of the police were so against police policy that it was in-fact reckless. The case involved a traffic accident and a Mounted Police officer, the Chief of Police had instructed the mounted police man to drive onto the mounting traffic and was subsequently struck by an oncoming car. Damages were available there just as they should here. Police are afforded certain protection and ‘floodgates’ are cited as the main overbearing reason.
Bibliography
Markesinis and Deakings Tort Law 5th Edition 2003
Gillian Kelly, Barrister-at-Law, Dublin Post Traumatic Stress Disorder 15th April, 1999.
Lunley & Oliphant
David Howarth Textbook on Tort Law
Tony Weir Tort Law Clarendon Law Series
Cane, Atiyah’s Accidents Compensation and the Law (6th ed),
Atiyah P.S The Damages Lottery (1997)
W. Mansell & J. Conaghan The Wrongs of Tort (1999)
Fleming ‘Requiem for Anns’ The Law Quarterly Review, 106:October 1990, London, Stevens & Sons Ltd, 1990
O’Dair ‘Murphy v Brentwood District Council: A House with Firm Foundations?’ The Modern Law Review, 54:4 July 1991, Blackwell, Oxford, 1991
Wallace ‘Anns Beyond Repair’ The Law Quarterly Review, 107:October 1991, London, Stevens & Sons Ltd, 1991
Weir A Casebook on Tort, 9th Edition, London, Sweet & Maxwell, 2000
David Howarth Text book on Tort
a master is liable for acts of his servants
David Howarth Text Book on Tort
Tort law- Tony weir – clarendon law series
Wallace ‘Anns Beyond Repair’ The Law Quarterly Review
Baker v. TE Hopkins & Son (1959)
Hunter v. British Coal Corp (1999)
Post Traumatic Stress Disorder, Gillian Kelly, Barrister at Law
" The imposition of liability for pure psychiatric harm in a wide range of situations may result in a burden of liability on defendants which may be disproportionate to tortious conduct…"
