Tony however is holding himself out as a specialist and as such it is questionable whether he could claim a duty of care from the magazine as it could be argued that he would not place reliance on one single article. Henry would however claim that the advice given to him was from someone who held themselves out as possessing a special skill and in a business context. It was stated in Hedley Bryne-v-Heller that advice given at social occasions should not attract liability but it is arguable that Tony was advising Henry in a business context as he was advising him as a potential future client. Henry must also prove that he placed reliance on the advice of Tony when buying the shares or there can be no liability. Then it must be reasonable for Henry to claim damages, thus questioning whether Tony was under a duty to inform him of the pending disaster. It is clear that Tony was negligent in that he failed to contact Henry, although there is generally no duty in omissions but there is if it "...formed part of his contract..". Tony would find it difficult to rebut this negligence as he still had not done so later in the week when Macro went bankrupt.
The second point raised is in relation to Henry's accident. We must first examine whether Henry can claim that Tony's actions were a contributory effect of the accident in that, if it is established, he caused Henry's state of depression, which could have given rise to liability for nervous shock. It seems unlikely that Henry could claim damages for nervous shock because there was no question of Henry being in fear of his own safety although recovery for nervous shock was allowed in Attia-v-British Gas in which the plaintiff witnessed the destruction of her house by fire and recovery for nervous shock from false statements was allowed in Wilkinson-v-Downton. There is also authority for the argument that a psychiatric illness that is expanded through another's negligence can give rise to liability for the plaintiffs future negligent actions although in this case certain actions failed for policy reasons. The nervous shock must also be a recognised psychiatric illness; mere grief or depression, unless clinical depression, is not sufficient. It would also probably fail on the question of remoteness, in this case was it foreseeable that damage would occur ?, probably not.
The accident itself was caused by Henry, he clearly owed a duty of care as a motorist and was negligent in failing to notice that the traffic lights were not in use and not slowing down accordingly, instead he drove straight across without checking for traffic from other directions. Were Henry to be held liable then he may wish to claim that the highway authority is severally concurrently liable in its failure to maintain the traffic lights although if successful any award of damages would be proportionate to the degree of fault. Henry would also wish to claim that Ron was contributory negligent in failing to wear a helmet and damages would be reduced accordingly, 10% in Capps-v-Miller, although it is suggested that if Ron's damage was totally avoidable by the wearing of a helmet he could nevertheless still recover damages. Only if Ron was completely to blame for the accident thus exonerating all others would he lose all claim to damages. Henry may wish to suggest that the delay of the ambulance constituted an novus actus interveniens which breaks the chain of causation, although it is arguable that it was both foreseeable, although the standard time under the Citizens Charter is 14 minutes, and reasonable that Ron would have to wait for an ambulance. If the ambulance was held up then it would be arguable that they would not be liable for the delay as a matter of public policy and even if they were on a go-slow at least the employers would not be liable however if the ambulance had been defective in some way which contributed to the delay then there could be liability although it is probable that policy considerations would be applicable in these circumstances.
Ron's wife can claim £7,500 from the tortfeasor under s1A of the Fatal Accidents Act (1976) (as amended). His estate will also have a claim against Henry and anyone else found severally concurrently liable under the Civil Liability (Contributions) Act (1978) for the death of Ron because the cause of action does not die with the plaintiff under the Law Reform (Miscellaneous Provisions) Act (1934). Her claim would be based on four types of damages, special damages, pain and suffering, loss of amenities and finally damages for funeral expenses.
Brenda's claim for her own injury is based on a prima facie case of nervous shock. She would also have to prove duty of care, breach and causation for her claim to succeed. Brenda had come upon the "immediate aftermath" of the accident based on the limits imposed in McLoughlin-v-O'Brian in that Brenda arrived some 20 minutes after the accident and while her husband was awaiting the ambulance. This is what Lord Wilberfore referred to as proximity in "...time and space..." in that the plaintiff had, in McLoughlin-v-O'Brian, arrived at the hospital some 2 hours after the accident, which was described as on the boundary of liability, thus Brenda was well within such a limit. Her shock factor would arguably be higher through the sight of the crash scene and she must have seen his death while travelling in the ambulance if Ron was dead on arrival at the hospital. Brenda had also been present at the scene whereas in McLoughlin-v-O'Brian the plaintiff had arrived at the hospital although her family were still in the pre-treatment stage, i.e. they had not been cleaned up. There is a question of whether there was a novus actus interveniens in that the ambulance crew let her ride in the ambulance and as such she could have sustained her nervous shock from seeing the death in the ambulance or alternatively it could give rise to several concurrent liability if it could not be determined who caused the nervous shock. As a witness Brenda would be in a proximate relationship to the victim who was her husband thus satisfying the necessary test of "...the ties of love and affection..." although even if she was a by-stander she would not have been ruled out totally. Brenda would also need to prove that her illness was caused by the shock, "...a sudden assault on the nervous system...".
It would be a question of medical opinion as to whether agoraphobia constituted a recognised medical condition and that it was a result of her witnessing the aftermath of the accident. On the first point it would seem that agoraphobia would probably be described as a recognised medical condition especially if contrasted with a contract case where damages were awarded for pique after a disastrous holiday. Agoraphobia has been recognised as a psychiatric condition in Criminal Injuries Compensation cases as has claustrophobia. If Brenda is to claim her illness is derived from shock, shock being "...a sudden sensory perception..." she would have to advance medical evidence that the shock was an immediate cause and not some later manifestation through being worn down with grief. Brenda would thus seek damages for loss of earning both past and future and any other expenses incurred although she would have a duty to mitigate her losses by, say, obtaining other employment. Any social security paid from the date of claim to the settlement or five years later over and above £2,500 would have to be deducted from any award of damages under the Social Security Act (1989) s22 and paid by the defendant to the Department of Social Security. The fact that Brenda had claustrophobia when she was younger would not however affect her claim as the tortfeasor is said to take the plaintiff, defined as "...the reasonably strong nerved person..", as he finds him. Once the wrong has been established, unless the defendant knew of any special circumstances, assessment of damages covers all reasonable injuries sustained, what is known as the eggshell skull principle, although this principle lost some of its scope in The Edison where damages were awarded for the cost of comparable replacement goods and some loss of earnings not the total loss suffered because of impecuniosity. Claustrophobia is the direct opposite of agoraphobia and has no bearing on the present claim for damages as in this case there is no reoccurrence of the old injury thus an argument that Brenda already suffered some illness would fail on the question of causation, the damage constituting a new illness.
Bibliography
Tort Cases and Materials, Hepple & Matthews (1991) Butterworths.
Personal Injury Practice, John Henry QC (1992) Legal Action Group.
Tort Law, Markesinis & Deakin (1994) Oxford.
A Casebook on Tort, Tony Weir (1992) Sweet & Maxwell.
