The tort of negligence.

This principle that came out of Anns case was criticised in the case of Yuen Kun-Yea v AG Hong Kong [1988] where Lord Keith said that forseeability is not the only ingredient that will naturally lead to a duty of care and that the two-stage test had been taken to a degree of importance that was not intended and regarded it as no longer suitable to decide the existence of a duty of care.  The idea of proximity is easily concluded in every day cases that include physical damage but in some other cases proximity needs to be looked at closer in order to see if a duty was owed.  This is shown in Caparo Industries v Dickman [1990] where it was held that an auditor of accounts did not owe any duty of care to individual investors.  As Lord Bridge stated; - “the question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of that damage suffered is relevant to the existence and extent of any duty to avoid or prevent it.”

This latter case was followed with the case of Murphy v Brentwood District Council [1990] where it was held that a local authority could not be liable to the defendant for negligence with regards to a defective design in buildings as the plaintiff had not suffered any damage, either to the property (as the court held it was just a latent defect) nor physical, just lost money.

After these cases that I have mentioned the present position adopted is one from a decision of policy.  Jones identifies what the main requirements for a duty of care in negligence to exist are.  These being forseeability and sufficient proximity (as in the case of Anns) and also that it must be fair, just and reasonable to impose such a duty.

The courts policy now is to generally try to restrict the liability for negligence as you see from the retreat from the Anns case.

In the area of economic loss the ability for plaintiffs to recover damages is restricted.  It is a general rule that economic losses from negligent acts are not actionable.  “By economic loss we mean pure loss of money.”  This policy of restricting liability comes from various reasons.  One being that there would be a risk of a high number of claims against the defendant for indirect economic loss due to the damage caused to another’s property.  It is concerned that if restrictions on economic loss were lifted or loosened then this would ‘open the floodgates’ for more and more claims from third parties.  In the case of Spartan Steel v Martin & Co. [1973] it established that you cannot recover economic damages if there has been no actual physical damage to your own property.  There are three exceptions to the general rule.  The first coming from the case of Hedley Byrne v Heller [1964] which allowed “an action to be brought for negligent performance of an undertaking of a professional nature…”

The second exception is, according to Baker, “more specialised and of a controversial nature.”   It comes from the case of Morrison S.S. Co. v Greystoke Castle [1947] where they were able to recover losses from cargo that they were carrying when their ship got damaged by the defendants’ negligence.  This is justified by the fact that it is a joint venture between the ship owner and the cargo owner and that the ship owner was in possession of the cargo at the time of the incident.

The third exception is a statutory exception under the Fatal Accidents Act 1976, which allows an action of wrongful death by a dependant for the loss of dependency.  Before this the general rule in common law was that a third party could not sue with regards to the death of another.  This position was changed to the former position under the above Act because, as Baker describes, it produced “a major injustice.”

Another area, which has restricted the liability for negligence, is negligent mis-statement.  This would be such a thing as careless advice from solicitors or accountants.  The main case in this area is Hedley Byrne v Heller [1964] where is was held that a negligent mis-statement had resulted in economic loss and this was actionable “at a time when received wisdom was to deny such a claim where the negligence alleged took the form of an act.”  From this case it established that for liability to exist there must be a ‘special relationship’ between the two parties based on the assumption of responsibility of the statement giver and that the receiver will trust this statement and act upon it.

In Caparo v Dickman [1990] however suggested that negligent mis-statement would be a discrete category to which certain considerations would need to be applied.  These considerations limit the scope for liability in this area and so much that it has been commented that Hedley v Byrne would now pass the new criteria.  The reason for liability to be restricted is one of a variation of the floodgate theory.  Where Cardozo CJ said in the case of Ultra Mares Corp v Touche (1931) that extension of the liability of negligence would result in a high number of claims “in an indeterminate amount for an indeterminate time to an indeterminate class.”  Therefore a duty of care would exist when the party making the statement is aware of three things; the plaintiff is replying on the skills and judgement of the defendant in making the statement, the defendant knew that the plaintiff was relying on him (or ought reasonably to know) and that it was reasonable for the plaintiff to reply on the defendants statement.

So in general terms a relationship between two people, predominately between a professional and their clients, there is a duty owed due to a ‘special relationship’ as in a solicitor and their client.  The solicitor would owe a duty of care to their client with regards to the advice they give.

Nervous shock is also a restricted duty situation.  A definition of nervous shock can be found from Winfield (1989) when stating “shock which produces some recognisable medical condition (whether physical – heart failure, abortion or mental neurosis, post traumatic stress disorder)”

In the early years of nervous shock it was said that such illness cause by this was non-recoverable, as the fright caused is too remote a consequence from the negligent act.  This was the policy due to judges fearing that the floodgates would open.

This view was not considered good law for much longer as in the case of Delieu v White & Sons [1901] the court allowed for damages due to witnesses a vehicle crash into a wall and the shock of this and fear for herself made her ill.  Although in the case of Hambrook v Stoke Brothers [1925] the Delieu case was not followed as the court decided that that case would not produce a remedy for someone who feared for a loved one.  For example in this later case where a mother feared for the safety of her children and the shock killed her.

It was also illustrated that the plaintiff must show that it is a foreseeable result from the conduct that causes the shock.

This was showed in the next case of Bourhill v Young [1943] where it was held that the defendant could not be liable, as he could not reasonably foresee that his negligent driving would cause emotional injury to the plaintiff.

Lord Porter stated that an ordinary person who uses the streets have sufficient knowledge that they may witness incidents from time to time and therefore cannot generally claim damages from witnessing such incidents.

However the class of persons who can claim have been looked at in the cases of Dooley v Cammel Laird [1951], Chadwick v BRB [1967] and Hale v London Underground (1992) where it was confirmed that rescuers that endure extreme situations, such as the Kings Cross fire tragedy in the latter case, can claim for damages.

The current position with regards to nervous shock was laid down in the case of McCloughin v O’Brien [1983] where the ‘Aftermath Principle’ was developed.  Where as in normal situations the claim would only be successful if witnessed the accident at the scene.  But in this case it was said that the aftermath was just as bad as seeing the incident at the time it happened.

Cases that have followed the McCloughin case have used an incremental approach with regards to nervous shock situations.

This can be shown by comparing the case of Jones v Wright [1991] with the above case, whereas coming across the aftermath, being told of a relative’s death is not sufficient.

The case of Alcock and others v Chief Constable of South Yorkshire Police [1991] involved the death and injuries of over 500 spectators at a football match.  The events of this disaster were shown on TV of which some of the relatives of the injured were watching.  The Chief constable who was in charge of crowd control at the match admitted negligence with regards to the deaths and injuries.  The plaintiffs claimed that they suffered nervous shock due to seeing the events on TV and in person at the match.  In this case it was said that to illustrate that a duty of care was owed the plaintiff needed to prove two things.  These being that there was reasonable foresight of likey harm to the plaintiff and that there were a sufficiently proximate relationship.

The plaintiffs did not succeed in their appeal as the judges used a policy decision in that the police should not be prosecuted as this could result in a lack of police efficiency of they have to always be careful about not being claimed against.

In the case of McFarlane v E E Caledonia Ltd [1994] the court held that there must be a close tie of love and affection present.

Therefore in conclusion it has been shown that although there is a need to have a route of claiming under negligence due to a breach of duty of care this also needs to be regulated in regards to policy decisions, which has been shown in the decisions of the judges in several cases that have been illustrated.

---